author: CAROL M. HANSEN, Presiding Judge.

text:
    2002 OK CIV APP 120
    Jonathan C. MAJOR, on his own behalf and on behalf of those similarly situated, Plaintiff/Appellant, v. MICROSOFT CORPORATION, a Washington Corporation, Defendant/Appellee.
    No. 97,888.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Sept. 6, 2002.
    Certiorari Denied Nov. 19, 2002.

      Donald L. Kahl, T. Lane Wilson, Anthony J. Jorgenson, Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Tulsa, OK, and Michael E. Smith, Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Oklahoma City, OK, for PlamtiffAppellant.
    Kenneth N. McKinney, Keith D. Tracy, Ronald L. Walker, McKinney & Stringer, P.C., Oklahoma City, OK, and David B. Tul-chin, Joseph E. Neuhas, Sullivan and Cromwell, New York, NY, for Defendant/Appellee.
   Opinion by

CAROL M. HANSEN, Presiding Judge.

¶ 1 Plaintiff, Jonathan C. Major, purchased a Windows 98 operating system from Office Depot in Tulsa County. Upon installing this system on his computer, Major was required to register his ownership as an end user licensee of the system. He later purchased a new computer from Gateway in January of 2000. Windows 98 was pre-installed on that computer. Before using the system, he was again required to register with Microsoft.

¶ 2 Major originally filed this action against Defendant Microsoft in Tulsa County, Oklahoma, district court seeking damages for its violation of the Oklahoma Antitrust Reform Act. 79 O.S. Supp.2000 §§ 201 et seq. The trial court granted Microsoft’s motion to dismiss, but allowed Major to replead. Major filed an amended petition seeking similar damages but including violations of the Oklahoma Uniform Commercial Code, 12A O.S. Supp.2000 § 2-302, and the Oklahoma Consumer Protection Act, 15 O.S. Supp.2000 §§ 751 et seq.

¶ 3 After removal to federal court and return to Oklahoma, the trial court dismissed the action pursuant to Microsoft’s renewed motion to dismiss. Major now appeals the dismissal.

¶ 4 Microsoft is a for-profit corporation, organized and existing under the laws of the State of Washington. It focuses primarily on developing and licensing computer software. It markets and licenses its Windows 98 operating system for Intel-based personal computers throughout the United States, including the State of Oklahoma. Major complained Microsoft possessed monopoly power, including the power to control price and to exclude competition. He alleged Microsoft had unlawfully sought to acquire, maintain and expand its monopoly power by anti-competitive and unreasonable exclusionary conduct. As a result, Microsoft knowingly and intentionally licensed its Windows 98 operating system for Intel-based personal computers, without regard to competition, at a monopoly price in excess of that which Microsoft would have been able to charge in a competitive market. Therefore, Major claims all members of the class similarly situated are entitled to damages according to proof as to the difference between a competitive price and the unlawful monopoly price that they incurred as end user licensees.

¶ 5 In 1977, the United States Supreme Court decided the case of Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707. That decision studied the issue of standing to sue for treble damages under the Clayton Act, 15 U.S.C.A. § 15 (1976). In Illinois Brick, the State of Illinois brought suit against concrete block manufacturers alleging price fixing in violation of § 4 of the Clayton Act. That section provides “(a)ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may bring suit to recover damages sustained by him.” The Court held the state, as an indirect purchaser, did not have standing to pursue the action because it did not buy concrete blocks directly from the manufacturers, and thus was not the party “injured in his business or property within the meaning of section 4 of the Clayton Act.” The Court drew a line at which the law will not permit remote antitrust claims to be asserted. This bright line has become known as the “indirect-purchaser rule.”

¶ 6 Ten years later the United States Supreme Court clarified its ruling in Illinois Brick in California v. ARC Am. Corp., 490 U.S. 93, 109 S.Ct. 1661, 104 L.Ed.2d 86. It held that nothing in federal antitrust legislation prevented the states from allowing indirect purchasers to bring antitrust actions under state statutes. The Court stated the statutes of Alabama, California and Minnesota (the plaintiffs) expressly allowed indirect purchasers to sue. That decision, however, did not create a cause of action for indirect purchasers, but rather merely authorized the states to provide a cause of action for indirect purchasers based on their states’ antitrust laws. It concluded Congress had not preempted the field of antitrust law, but rather intended the federal antitrust laws to supplement, not displace, state antitrust remedies. See, Comes v. Microsoft Corporation, 646 N.W.2d 440 (Iowa.2002) and cases cited therein. Since that time other jurisdictions have interpreted their state antitrust laws to give standing to indirect purchasers. Bunker’s Glass Company v. Pilkington, 202 Ariz. 481, 47 P.3d 1119 (Ariz.App.2002).

¶ 7 Section 205 of the Oklahoma Antitrust Reform Act, provides that any person who is injured in his or her business or property by a violation of the act may obtain appropriate injunctive or other equitable relief and monetary damages and shall recover threefold the damages sustained, and the cost of suit, including a reasonable attorney fee. This is almost identical to the language of the federal act quoted above.

¶ 8 The Oklahoma Legislature has spoken. The controlling section of the Oklahoma Act is the final section, § 212. That section states:

The provisions of this act shall be interpreted in a manner consistent with Federal Antitrust Law 15 U.S.C., Section 1 et seq. and the case law applicable thereto.

¶ 9 Accordingly, under § 212, we are required to apply the holdings of Illinois Brick to the present appeal.

¶ 10 Major does not actively argue this Court should not follow Illinois Brick. In his briefs at trial Major makes two arguments in defense to Microsoft’s motion to dismiss. He claims because he was required to register as an end user licensee, he is a direct purchaser, not an indirect one. He argues he suffered a unique injury as a direct result of Microsoft’s practices. He further points out Illinois Brick provides for three exceptions to the indirect purchaser rule: (a) Vertical Price-Fixing Conspiracy, (Microsoft in conjunction with Compac, Dell and NEC); (b) an Ownership or Control exception; and, (c) the cost-plus contract exception. He also argues the trial court erroneously dismissed his claims under the Uniform Commercial Code, 12A O.S. Supp.2000 § 2-302, and the Oklahoma Consumer Protection Act.

¶ 11 The trial court in its journal entry dismissing Major’s case, attached and incorporated herein, made a detailed legal analysis of these claims. We see no reason to repeat that analysis here. Rule 1.202, Oklahoma Supreme Court Rules, 12 O.S. Supp. 2000, Ch. 15 App. provides that in any case in which the court determines after argument or submission on the briefs that no reversible error of law appears, and (d) the opinion or findings of fact and conclusions of law of the trial court adequately explains the decision, the court may affirm by an opinion citing this rule. We have examined the record, more particularly the briefs of the parties in the trial court, and hold the trial court should be affirmed under this rule.

¶ 12 AFFIRMED.

ADAMS and MITCHELL, JJ. CONCUR.

EXHIBIT “A”

ORDER

This matter comes before the Court on the Renewed Motion to Dismiss of defendant Microsoft Corporation (“Microsoft”).

On November 17, 2000, this Court entered an order dismissing the original Petition: The Court concluded that the claims as originally pled were barred by the rule of Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977), barring antitrust damage claims by indirect purchasers. However, the Court granted plaintiff Jonathan C. Major (“Major”) the opportunity to replead and, on December 14, 2000, Major filed his First Amended Petition. On January 12, 2001, Microsoft removed the ease to the United States District Court for the Northern District of Oklahoma. The Judicial Panel on Multidistriet Litigation then issued a Conditional Transfer Order, transferring the case to the United States District Court for the District of Maryland, for consolidation with all other federal court putative class action antitrust actions pending against Microsoft. The U.S. District Court for the Northern District of Oklahoma subsequently remanded the case to this Court, and Microsoft filed its Renewed Motion to Dismiss.

In his First Claim for Relief in the First Amended Petition, Major claims Microsoft has violated Oklahoma’s Antitrust Reform Act, 79 O.S. §§ 201, et seq. by monopolizing trade and commerce relating to operating systems for Intel-based personal computers within the State of Oklahoma. Major further alleges Microsoft has conspired with distributors to fix prices for its Windows 98 operating system at an unlawful monopoly price. In his Second Claim for Relief, Major and the putative class claim entitlement to a modification of the price provisions of their contracts for the purchase and use of Windows 98 under the “unconscionability” section of the Oklahoma Uniform Commercial Code (“UCC”), 12A O.S. § 2-302. In his Third Claim for Relief, Major contends that Microsoft’s conduct and business practices constitute unfair and deceptive business practices as those terms are defined in the Oklahoma Consumer Protection Act (“CPA”), 15 O.S. §§ 751, et seq. and that he and each member of the putative class is entitled to recover damages therefor.

A motion to dismiss for failure to state a cause of action will not be sustained unless it should appear without doubt that the plaintiff can prove no set of facts in support of the claim for relief. 12 O.S. § 2012, Committee Comment; Brock v. Thompson, 1997 OK 127, ¶ 7, 948 P.2d 279, 284. Under most circumstances a plaintiffs petition is only dismissible for want of a cognizable legal theory of liability or for insufficient facts under the advanced theory. Lockhart v. Loosen, 1997 OK 103, ¶ 5, 943 P.2d 1074, 1078. A petition must not be dismissed for failure to state a legally cognizable claim unless the allegations indicate beyond any doubt that the litigant can prove no set of facts which would entitle him to relief. Frazier v. Bryan Memorial Hospital Authority, 1989 OK 73, ¶ 13, 775 P.2d 281, 287.

This Court previously ruled that the Illinois Brick direct purchaser rule was incorporated into Oklahoma law when Oklahoma enacted its Antitrust Reform Act (the “Act”) in 1998. Federal antitrust statutes were adopted almost verbatim. The Oklahoma legislature manifested its clear' intent to harmonize the Act with federal antitrust law when it enacted § 212, which states:

The provisions of this act shall be interpreted in a manner consistent with Federal Antitrust Law 15 U.S.C., Section 1 et seq. and the case law applicable thereto.

Oklahoma has chosen not to legislatively overturn the direct purchaser rule. Therefore, this Court concluded — and again concludes — that the Illinois Brick direct purchaser rule is controlling law in Oklahoma.

The Court rejected — and again rejects— Major’s argument that the End User Licensing Agreement (“EULA”) made Major a direct purchaser by giving him a direct contractual relationship with Microsoft. The EULA does not make Major or those similarly situated “direct buyers.” Major did not purchase his product directly from Microsoft. The Court concludes that the relationship established through the EULA between Microsoft and the end user is insufficient to make the end user a direct purchaser for the purposes of Illinois Brick. See, e.g. Minuteman, L.L.C. v. Microsoft Corp., 795 A.2d 833 (N.H.2002); Siena v. Microsoft Corp., 796 A.2d 461 (R.I.2002); Vacco v. Microsoft Corp., 260 Conn. 59, 793 A.2d 1048 (Conn.2002); and Pomerantz v. Microsoft Corp., 50 P.3d 929 (Colo.App.2002).

Major asserts three exceptions to the Illinois Brick direct purchaser rule: 1) a vertical price-fixing conspiracy exception; 2) the control exception, applicable to purchases from an entity owned or controlled by the antitrust violator; and 3) the cost-plus contract exception.

1. Vertical Price-Fixing Conspiracy.

Major alleges that Microsoft entered into “a vertical price-fixing conspiracy” with the three largest PC manufacturers — Compaq, Dell and NEC. First Amended Petition, ¶ 50.

Illinois Brick does not mention a “vertical conspiracy” exception. Judge Posner, writing for a Seventh Circuit panel, wrote that “UtiliCorp implies that the only exceptions to the Illinois Brick doctrine are those stated in Illinois Brick itself.” In re Brand name Prescription Drugs Antitrust Litigation, 123 F.3d 599, 605 (7th Cir.1997).

Even if one assumes a vertical price-fixing conspiracy exception is cognizable, it applies only to one who purchases an overpriced good from a member of the price-fixing conspiracy, as such an individual arguably bears the overcharge directly and the policy factors underlying Illinois Brick are not at issue. In re Mid-Atlantic Toyota Antitrust Litigation, 516 F.Supp. 1287, 1294-5 (D.Md.1981). In this case, Major alleges he purchased a copy of Windows 98 from Office Depot and a computer with Windows 98 preinstalled from Gateway. Major does not allege a purchase from a member of the conspiracy; his allegations are insufficient to avoid the direct purchaser rule.

Alternatively and in addition, Major’s First Amended Petition fails because he has not joined the alleged co-conspirators. See, e.g. McCarthy v. Recordex Service, Inc., 80 F.3d 842, 854-55 (3rd Cir.1996). The narrow exception to the rule requiring joinder, set forth in Lowell v. American Cyanamid Co., 177 F.3d 1228 (11th Cir.1999), is inapplicable here. In Lowell, no problems of double recovery were present because only one illegal act (the vertical conspiracy) was present and only one set of potential plaintiffs existed. Here, Major alleges a separate antitrust violation — monopolization of the market for Windows 98 — which potentially caused injury to direct purchasers other than the alleged co-conspirators. Thus, this case presents problems of double recovery to which the Illinois Brick doctrine is applicable.

Alternatively and in addition, Major has failed to allege a vertical conspiracy to fix prices at which Major and the putative class purchased the products (the PCs) sold by the original equipment manufacturers (“OEMs”).

2. The Ownership or Control Exception.

The Court in Illinois Brick noted, in a footnote, that in some situations an indirect purchaser might be permitted to maintain an antitrust action “where the direct purchaser [in this case the OEMs and/or distributors of upgrade CD ROMS] is owned or controlled by its customer.” Illinois Brick, 431 U.S. at 736 n. 16, 97 S.Ct. at 2070 n. 16, 52 L.Ed.2d at 719 n. 16. Courts have narrowly construed this exception and limited it to relationships involving such functional economic or other unity between the direct purchaser and either the defendant or the indirect purchaser that there effectively has been only one sale. Jewish Hospital Ass’n v. Stewart Mech. Enterp., Inc., 628 F.2d 971, 975 (6th Cir.1980). The Seventh Circuit has limited the control exception to situations where a defendant controls the direct purchasers “through interlocking directorates, minority stock ownership, loan agreements that subject the wholesalers to the manufacturers’ operating control, trust agreements, and other modes of control separate from ownership of a majority of the wholesalers’ common stock.” In re Brand, Name Prescription Drugs Antitrust Litigation, 123 F.3d 599, 605 (7th Cir.1997). Another federal court has held that “[t]o fall within the realm of the [ownership or control] exception to the general rule of Illinois Brick, [the indirect purchaser] must show that [a party] owns or exerts such significant control over [the direct purchaser] as to be virtually the same entity.” Fisher v. Wattles, 639 F.Supp. 7, 9 (M.D.Pa.1985).

In the present case, Major has alleged that Microsoft dictates the price that it charges OEMs for Windows depending upon the degree to which the individual OEMs have complied with Microsoft’s wishes in pursuing its “jihad” in the “browser war.” First Amended Petition, ¶ 61. Major does not allege that Microsoft owns or directly controls the OEMs and distributers of upgrade CD ROMS or that Microsoft controls or determines the pricing of Windows 98 by resellers. In short, Major has not alleged such functional economic or other unity that there effectively has been only one sale. Pomerantz v. Microsoft Corp., 50 P.3d 929, 935 (Colo.App.2002). Absent such an allegation, the rationale behind Illinois Brick clearly applies — the finder of fact would have to apportion the alleged overcharge between the OEMs and the indirect purchasers. “That’s just what the Supreme Court in ... Illinois Brick ... told the federal courts not to do.” In re Brand Name Prescription Drugs Antitrust Litigation, 123 F.3d 599, 606 (7th Cir.1997). Unless the alleged control extends to the price charged for operating systems or computers, the “[p]roblems of proving the amount of the pass-on remain undiminished.” Jewish Hospital, 628 F.2d at 975. Accordingly, the “control” exception to the Illinois Brick rule does not save the First Amended Petition.

3. The Pre-Existing Cost-Plus Contract Exception.

In Illinois Brick, the Supreme Court observed:

In a [pre-existing cost-plus contract] situation, the [direct] purchaser is insulated from any decrease in its sales as a result of attempting to pass on the overcharge, because its customer is committed to buying a fixed quantity regardless of price. The effect of the overcharge is essentially determined in advance, without reference to the interaction of supply and demand that complicates the determination in the general case. 431 U.S. at 736, 97 S.Ct. 2061.

Plaintiff alleges, on information and belief, that OEMs and distributors “have passed all of Microsoft’s monopoly price on to Plaintiff and the Class” and, as such, the transaction is “the functional equivalent of a cost-plus contract.” Amended Petition, ¶ 69. Plaintiff does not allege a pre-existing cost-plus contract. If a seller’s recovery of costs equates to a “pre-existing cost-plus contract,” the exception to Illinois Brick would swallow the rule. As the Supreme Court explained in Kansas v. UtiliCorp, 497 U.S. 199, 218, 110 S.Ct. 2807, 2817-18, 111 L.Ed.2d 169 (1990), where utilities were required by law to pass on all of their costs, “we might allow indirect purchasers to sue only when, by hypothesis, the direct purchaser will bear no portion of the overcharge and otherwise suffer no injury.” The Supreme Court held that even where a utility raised its prices to cover its costs, the Court could not ascertain its precise injury because the utility’s customers made no commitment to purchase any particular quantity of gas and the utility itself had no guarantee of any particular profit. The utility could claim injury as a consequence of elasticity of demand — the decreased volume of sales caused by the higher prices the utility had to charge. The Court went further to state that “even if the utility customers had a highly inelastic demand for natural gas ... the need to inquire into the precise operation of market forces would negate the simplicity and certainty that could justify a cost-plus contract exception.” If the legally-required pass-on in UtiliCorp did not qualify as a cost-plus contract, Major’s conclusory allegations of pass-on cannot do so.

4.Plaintiffs Claims of Unique and Direct Injury.

Major argues he has standing because Microsoft has caused him to suffer unique injury as a direct result of its practices. Specifically, Major alleged that end-users “were deprived of the benefits of competition including, but not limited to, technological innovation, market choice, product variety, and substitutable supply, and were forced to purchase multiple copies of Windows.” ¶ 80, First Amended Petition. Major also alleges that the illegal tie-in of Internet Explorer to the operating system resulted in multiple injuries to all Windows 98 purchasers. Such injuries include: loss of speed and memory caused by the technological tie; loss of operating system stability and increased susceptibility to viruses or security breaches; and deprivation of consumer choice. The MDL Court assigned to Microsoft antitrust litigation has rejected claims for injury to the market as a whole, including the alleged denial of better, technologically superior products. In re Microsoft Corp. Antitrust Litigation, 127 F.Supp.2d 702, 710-711 (D.Md.2001). The MDL Court held that consumer allegations of denial of the benefit of technologically superior products and competition are allegations of “a generalized societal harm and, under well-established principles, the suffering of such damage is insufficient to confer standing.” Id. at 711; see also Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 340 n. 8, 110 S.Ct. 1884, 109 L.Ed.2d 333 (1990) (“[T]he antitrust injury requirement cannot be met by broad allegations of harm to the “market” as an abstract entity”).

Major’s claim of “performance degradation” resulting from the tie-in of Internet Explorer is simply a claim that he should have obtained more than he did and that Microsoft charged too much for the product. The measure of damages is the amount of the overcharge, and the problems identified in Illinois Brick persist.

5. Major’s Claim for Modification of an Unconscionable Contract Term.

Section 2-302 of the Uniform Commercial Code is not a basis for affirmative relief. Cowin Equip. Co. v. General Motors Corp., 734 F.2d 1581, 1582 (11th Cir.1984); Best v. United States Nat’l Bank, 78 Or.App. 1, 714 P.2d 1049, 1055-1056 (1986) (surveying eases in numerous states that § 2-302 is not a basis for an award of damages).

6. Major’s Claim Under the Oklahoma Consumer Protection Act.

Major’s claims under the Oklahoma Consumer Protection Act (“CPA”) are predicated on the same factual allegations underlying Major’s antitrust'claim. As set forth above, the Oklahoma legislature has expressed the clear intention that Oklahoma’s antitrust laws be interpreted in a manner consistent with federal antitrust law. Microsoft contends that indirect purchasers whose claims are barred under the antitrust laws should not be permitted to assert a claim under the CPA for the same allegedly anticompetitive conduct.

Upon consideration of the arguments an authorities presented by the parties, this Court concludes that the CPA should not extend to anticompetitive conduct and that Major should not be permitted under the law to avoid the United States Supreme Court’s policy choices expressed in Illinois Brick by recasting his claims of anticompetitive conduct as a Consumer Protection Act claim. This particular issue must obviously be resolved by our appellate courts. Courts in other states have refused to permit an end-run around Illinois Brick by permitting other statutory claims upon the same factual allegations underlying the state antitrust claim. Vacco v. Microsoft, 260 Conn. 59, 793 A.2d 1048 (Conn.2002); Blewett v. Abbott Laboratories, 86 Wash.App. 782, 938 P.2d 842 (1997) (“[Tjhis is the same claim with a different label .... We will not interpret the state antitrust law in a manner that ‘rewards creative pleading at the expense of consistent application of legal principles.’ ”)

For the reasons set forth above, Defendant’s Renewed Motion to Dismiss is granted.

IT IS SO ORDERED this 24th day of May, 2002.

/s/ Gregory K. Frizzell GREGORY K. FRIZZELL, District Judge

      . Hundreds of state and federal cases, too numerous to mention, have cited Illinois Brick.

        . Comes, in a footnote, refers to In re Microsoft Corporation Antitrust Litigation, 127 F.Supp.2d 702 (D.Md.2001). That decision held the plaintiffs as indirect purchasers were barred from bringing claims for alleged overcharges under federal law, pursuant to Illinois Brick, but reserved comment on whether Illinois Brick was incorporated into the state law of a number of states.

      . Under Illinois Brick, indirect purchasers lack standing to proceed. The rationale behind the rule, as explained by the United States Supreme Court, is that "[t]he direct purchaser rule serves, in part, to eliminate the complications of apportioning overcharges between direct and indirect purchasers.” Kansas v. UtiliCorp United, Inc., 491 U.S. 199, 208, 110 S.Ct. 2807, 111 L.Ed.2d 169 (1990). It also "serves to eliminate multiple recoveries.” Id. at 497 U.S. 199, 212, 110 S.Ct. 2807, 111 L.Ed.2d 169. Finally, the rule provides tire direct purchasers, those in the best position to observe an alleged violator's conduct, with incentives to bring private antitrust actions and thus promotes the vigorous enforcement of the antitrust laws. Id. at 214-215, 110 S.Ct. 2807. The Court recognizes that its decision in Illinois Brick often denies relief to consumers who have paid inflated prices because of their status as indirect purchasers. UtiliCorp, 497 U.S. at 211-212, 110 S.Ct. 2807.


source: Caselaw Access Project

author: CAROL M. HANSEN, Presiding Judge:

license: Public Domain

text:
    2002 OK CIV APP 114
    Daniel E. SHORT, Plaintiff/Appellant, v. AMERICAN BIOMEDICAL GROUP, INC., Defendant/Appellee.
    No. 98,014.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Oct. 25, 2002.
    Bradley D. Brickell, Brickell & Associates, L.P.C., Oklahoma City, OK, for Plaintiff'Appellant.
    Bradley K. Donnell, McAfee & Taft, P.C., Oklahoma City, OK, for Defendani/Appellee.
   Opinion by

CAROL M. HANSEN, Presiding Judge:

¶ 1 Daniel Short appeals a summary judgment entered in favor of Defendant, American Biomedical Group, Inc. The trial court based its ruling on the “reasons set forth in Defendant’s Motion for Summary Judgment and Brief in Support, and Defendant’s Reply to Plaintiffs Response to Motion for Summary Judgment.”

¶2 On March 16, 2000, Short filed this action seeking $10,000.00 in damages against Defendant for breach of contract under a written agreement for commissions he claimed he earned for marketing services he performed for Defendant under the agreement. The parties entered into the agreement on April 22, 1988. Short also sought a declaratory judgment defining the “validity and subsistence” of the contract’s terms and provisions. Defendant answered, raising several affirmative defenses of, among other things, laches and the running of the statute of limitations.

¶ 3 In February of 2001, Short filed a motion to enter the cause on jury docket. Later the trial court issued a scheduling order setting deadlines for pre-trial motions and discovery. In December of that year, Short filed his initial witness and exhibit lists. Later that month, he filed a motion to extend the discovery deadline, claiming Defendant had been uncooperative.

¶4 On January 15, 2002, Defendant filed its motion for summary judgment alleging Short’s action should be dismissed as a matter of law based on the equitable doctrine of laches. Defendant pointed out Short had originally filed an action against it on June 6, 1994. The trial court dismissed that action without prejudice on March 16,1999. Pursuant to 12 O.S.1991 § 100, Short timely filed this action.

¶ 5 In its motion for summary judgment, Defendant argued because 14 years had passed since the parties entered into the agreement, it was unable to prepare its defense adequately. It attached the agreement, the first petition, Short’s request for production of documents, Short’s first set of interrogatories, and other documents filed in the initial action.

¶ 6 Based on the passage of time and Short’s dilatory actions, Defendant claimed laches applied. It argued laches applies to failure to prosecute as well as a failure to file an action. Short responded arguing laches only applies to equitable actions, and this action was primarily one for breach of contract, an action at law. The trial court agreed with Defendant.

¶ 7 Short’s appeal is an appeal from the trial court’s judgment sustaining Defendant’s motion for summary judgment and dismissing the case. It stands submitted for review by this Court without appellate briefs on the accelerated docket pursuant to Rule 1.36, Supreme Court Rules, 12 O.S. Supp.2001, Ch. 15. App. On a motion for summary judgment, because there are no witnesses to evaluate, this Court may substitute its judgment for that of the trial court, using the same record the trial court had before it. Hampton v. Surety Development Corp., 1991 OK 94, 817 P.2d 1273. Summary judgment is an appropriate remedy only when the pleadings, affidavits, depositions, admissions or other evidentiary materials establish there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Buckner v. General Motors Corporation, 1988 OK 73, 760 P.2d 803. In reviewing an order granting summary judgment, the appellate standard of review is de novo. This Court, like the trial court, will examine the pleadings and evidentiary materials submitted by the parties to determine if there is a genuine issue of material fact. Kirkpatrick v. The Chrysler Corporation, 1996 OK 136, 920 P.2d 122.

¶ 8 The doctrine of laches is peculiar to courts of equity. It exists independent of the statute of limitations; and an action may be barred on account of the lach-es of the complainant for a period shorter than the statutory period of limitation. The mere institution of a suit, where there is want of diligence in prosecuting it, does not relieve the complainant from the charge of laches. The time, on account of a person’s laches, which will constitute a bar to an action is subject to no arbitrary rule, but varies and is determined by the circumstances of each case. Skinner v. Scott, 1911 OK 282,118 P. 394.

¶ 9 The Oklahoma Supreme Court has long expressly held the doctrine of laches does not apply to cases not of equitable cognizance. Thus, laches is not a defense to an action at law. “And this is the general rule.” Van Antwerp v. Schultz, 1950 OK 102, 217 P.2d 1034, citing 21 C.J. p. 214, ¶ 212; 30 C.J.S., Equity p. 523 ¶ 113; 19 Am.Jur. p. 339 section 490. In a more recent decision, B & M International Trading Co. v. Woodie Ayers Chevrolet, Inc. 1988 OK 133, 765 P.2d 782, a trading company sued several corporations, alleging tortious interference by the corporations with the trading company’s contract. Nine years later the district court dismissed the action with prejudice based on the doctrine of laches, and the plaintiff appealed. In its petition, the plaintiff also had asked for accountings of various funds which were to have been collected and disbursed among the parties to the contract. The Supreme Court held the affirmative defense of laches is available only in equity actions. The Court stated the authority to order accountings fell within the court’s equity jurisdiction; however, the gravamen of the suit sounded in law, not equity. Although the Court held the trial court acted within its authority to dismiss the case for failure to prosecute, it erred in dismissing the action with prejudice. The plaintiff clearly had the right to refile after the first dismissal.

¶ 10 In the present action, Short did refile within the statutory time set out in § 100. Although he sought a declaratory judgment, the gravamen of Short’s lawsuit is for damages for breach of contract, an action at law. Since Short refiled this action, the record reflects numerous filings and orders including a request by Short, unobjected to by Defendant, to place the action on the jury docket, and, in February of 2002, a joint application to extend discovery time. Laches may not bar such a suit. The trial court erred as a matter of law in granting summary judgment to Defendant based on the laches arguments presented by Defendant in its motion for summary judgment and the statute of limitations’ defense contained in its reply brief.

¶ 11 Accordingly, the trial court’s order granting summary judgment to Defendant is REVERSED, and the case REMANDED to the trial court with directions to proceed with trial of the case.

REVERSED AND REMANDED.

ADAMS and MITCHELL, JJ., concur.

      . This section provides if any action is commenced within due time, and the plaintiff fails in such action, otherwise than upon the merits, the plaintiff may commence a new action within one (1) year after that failure although the time limit for commencing the action shall have expired before the new action is filed.

      . Although Defendant claims because 1999 was a leap year and included 366 days the action was untimely, we hold a year is a year, regardless of the number of days it contains.

      . Short points out Defendant's breach did not occur on the date of the agreement.

      . Defendant did not base his motion for summary judgment on the running of the statute of limitations until his reply to Short’s response to its motion for summary judgment. It was at this time Defendant pointed out the leap year issue as a basis for its statute of limitations defense.


author: CARL B. JONES, Judge:

text:
    2002 OK CIV APP 113
    The PROSPECTIVE INVESTMENT AND TRADING COMPANY, LTD., Plaintiff/Appellant, Pezold, Caruso, Barker & Woltz, Appellant, v. GBK CORPORATION, Kaiser-Francis Oil Company, Texas Southwest Gas Corporation, and Oneok, Inc., Defendants/Appellees.
    No. 96,604.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Oct. 25, 2002.

      R.KPezold, Terry J. Barker, Joseph C. Woltz, Gene G. Boerner, III, Tulsa, OK, for PlaintiffAppellants.
    Frederic Dorwart, J. Michael Medina, Tulsa, OK, for Defendants/Appellees, GBK Corporation and Texas Southwest Gas Corporation.
    Keith Seller, Tulsa, OK, for Defendant/Ap-pellee, Kaiser-Francis Oil Company.
   OPINION

CARL B. JONES, Judge:

¶ 1 Appellants, The Prospective Investment and Trading Company, Ltd. (PITCO) and Pezold, Caruso, Barker & Woltz (Law Firm) appeal the district court’s order disqualifying Law Firm from representing PIT-CO in a law suit against GBK Corporation (GBK), Kaiser-Francis Oil Company (Kaiser-Francis), Texas Southwest Gas Corporation (Texas Southwest), and ONEOK, Inc. (ONEOK) (collectively Appellees). For the reasons set forth hereinafter, we affirm the district court’s order.

FACTS

¶2 In 1988, Law Firm represented Samson Resources Company (Samson) in Wolverine Exploration Company, Inc. et al. v. Texaco, Inc., Case No. CJ-88-5522 in. the District Court of Tulsa County, and related litigation, including an arbitration proceeding (Wolverine Arbitration). In 1993, Kaiser-Francis became involved in the Wolverine Arbitration due to its acquisition of a non-operating working interest which included an interest in the proceeds of the Wolverine Arbitration. While all of Law Firm’s prior contacts with Kaiser-Francis had been adversarial, Law Firm represented Kaiser-Francis as a nominal party in the Wolverine Arbitration from 1993-1998. The parties disagree as to the nature and extent of such representation. Law Firm disputes that an attorney-client relationship was established; it urges both Law Firm and Kaiser-Francis disclaimed the creation of the attorney-client relationship. Kaiser-Fi-ancis counters Law Firm entered into an attorney-client relationship with Kaiser-Francis, but admits Law Firm’s representation of Kaiser-Francis was limited to the Wolverine Arbitration; Law Firm could represent Samson against Kaiser-Francis in other litigation; and Law Firm could represent other clients in claims adverse to Kaiser-Francis so long as such representation was not related to the Wolverine Arbitration.

¶ 3 In 1995, Texaco, the defendant in the Wolverine Arbitration, requested production of Kaiser-Franeis’s gas contract-related documents and files (Discovery Order). Kaiser-Francis requested and Law Firm agreed to review numerous boxes of Kaiser-Francis’s documents to identify any documents that might be subject to a privilege claim. Members of Law Firm signified their review of Kaiser-Francis’s files by placing a yellow paper in the file which stated: “THIS FILE HAS BEEN REVIEWED FOR PRIVILEGED AND CONFIDENTIAL MATERIAL BY COUNSEL FOR THE COMPANY IN THE MATTER OF THE ARBITRATION BETWEEN WOLVERINE EXPLORATION COMPANY, et al. and TEXACO, INC.”

¶ 4 Kaiser-Francis contends a settlement agreement covering certain oil and gas leases entered into between Kaiser-Francis and Oklahoma Natural Gas Co. (ONG), now known as ONEOK (Kaiser/ONEOK Settlement), was included in the documents reviewed by Law Firm. Kaiser-Francis urges the Kaiser/ONEOK Settlement was confidential and that such confidentiality was recognized by Law Firm when it represented Kaiser-Francis and negotiated, on Kaiser-Franeis’s behalf, a ratification and amendment of arbitration agreement which protected the confidentiality of Kaiser-Francis’s files and documents. Law Firm counters there is no evidence the Kaiser/ONEOK Settlement was included in the boxes reviewed by Law Firm. Law Firm also contends the Kaiser/ONEOK Settlement was generally known by PITCO and other lawyers involved in litigation against Kaiser-Francis, and was ascertainable from public records; therefore, was not confidential.

¶ 5 On September 8, 2000, Law Firm filed a petition on behalf of PITCO alleging Appel-lees conspired to commit fraud and other torts by attempting to make it financially impossible for working interest owners, not affiliated with Appellees, to participate in new wells to be drilled by Appellees. The alleged conspiracy involved a gas contract, with a very restrictive pricing provision, originally entered into between ONG and Gulf Oil Corp. (Gulf Contract). PITCO alleged GBK wanted control of the Gulf Contract and its pricing and term provisions in order to benefit its subsidiaries, Texas Southwest and Kaiser-Francis, and that GBK entered into a conspiracy with ONEOK in order to achieve that goal. PITCO’s petition also alleged Ap-pellees failed to calculate payouts using the correct price.

¶ 6 Within two weeks of filing the PITCO petition, Law Firm served discovery requests on Kaiser-Francis seeking information regarding, inter alia: “The Settlement Agreement between Kaiser-Francis and ONEOK concerning gas purchase contracts between Kaiser-Francis and ONEOK for gas produced in the State of Oklahoma. Upon information and belief, this Settlement Agreement was entered into sometime in the late 1980⅛ or early 1990’s.”

¶ 7 On February 2, 2001, Appellees filed a motion for protective order pursuant to Rule 1.9(a) and (c), Oklahoma Rules of Professional Conduct, 5 O.S.1991 Ch.l, App.3-A. Appel-lees sought to disqualify Law Firm from representing PITCO in the instant lawsuit due to conflict of interest. After a full two day evidentiary hearing on the merits and substantial briefing by the parties, the district court entered a 17 page, well-reasoned and thoroughly researched order.

¶8 The district court addressed several competing considerations: balancing PIT-CO’s interest in retaining counsel of its choice against Kaiser-Franeis’s concern for protection of its confidential information; protecting and upholding the attorney-client relationship and protecting an attorney who is representing a current client against a former client from being accused of wrongdoing; preventing the potential misuse of the disqualification motion as a litigation tactic; and protecting and preserving the attorney-client relationship and client confidences. Also, the district court’s order made the following specific findings and conclusions of law: an attorney-client relationship existed between Law Firm and Kaiser-Francis during the pendency of the Wolverine Arbitration; the information required by the Discovery Order was produced by Kaiser-Francis and reviewed by Law Firm; at least some confidential information was included in the production; all aspects of discovery and production of documents were considered confidential by the parties and Law Firm; and the settlement of the dispute between ONEOK and Kaiser-Francis was “generally known;” however, the terms of the Kaiser/ONEOK Settlement, which are included in the allegations of PITCO’s petition with specificity would not be “generally known” and could only come from confidential information encompassed by Rule 1.9. Based on the foregoing findings of fact and conclusions of law, the district court sustained Appellees’ motion for protective order and disqualified Law Firm pursuant to Rule 1.9(a) and (c).

¶ 9 Appellants filed a motion to reconsider which was overruled by the district court. The district court’s order found Law Firm, which once represented Kaiser-Francis, is now alleging on behalf of PITCO that Kaiser-Francis is liable to PITCO and is using confidential information that was made available to and reviewed by Law Firm during its representation of Kaiser-Francis as the basis for PITCO’s allegations.

¶ 10 For one of its allegations of error, Law Firm contends the district court erred when it disqualified Law Firm because its decision was based on the incorrect legal “appearance of impropriety” standard utilized prior to the current version of Rule 1.9. We do not find the district court relied on this standard as its sole basis to sustain the disqualification. And, since we affirm the trial court’s decision on other grounds, we need not further address this issue.

¶ 11 Law Firm urges the evidence demonstrated that Law Firm never occupied an attorney-client relationship with Kaiser-Francis; Kaiser-Francis specifically waived any claim of conflict in future litigation against Kaiser-Francis brought by clients represented by Law Firm; the Wolverine Arbitration was not substantially related to the present case; the Kaiser/ONEOK Settlement was never involved in the prior Wolverine Arbitration; and the Kaiser/ONEOK Settlement is “generally known,” therefore, excluded from the restrictions of Rule 1.9(c).

¶ 12 Kaiser-Francis counters the district court acted well within its discretion in disqualifying Law Firm because the compelling evidence showed Kaiser-Francis and Law Firm had an attorney-client relationship; the confidential documents viewed by Law Firm in the Wolverine Arbitration are substantially related to the current litigation; and the specific matters contained in the confidential Kaiser/ONEOK Settlement files were not generally known.

STANDARD OF REVIEW

¶ 13 In reviewing the district court’s order of disqualification pursuant to Rule 1.9(a) and (c), we follow the requirements of Piette v. Bradley & Leseberg, 1996 OK 124, 930 P.2d 183. Piette requires the district court to hold an evidentiary hearing and if it determines a party’s attorney should be disqualified, its disqualification order must include a specific factual finding that the attorney had knowledge of material and confidential information. Piette cites to Lansing Delaware Water Dist. v. Oak Lane Park, Inc., 248 Kan. 563, 808 P.2d 1369 (1991), as authority. Lansing-Delaware provides the following standard of review:

When the trial court has made findings of fact and conclusions of law, the function of an appellate court is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law.

Id. at 572, 808 P.2d at 1376. Additionally, we adhere to the rule that when a matter is tried to the district court, its determination of facts are accorded the same force as those made by a well-instructed jury. K & H Well Service, Inc. v. Tcina, Inc., 2002 OK 62, ¶ 9, 51 P.3d 1219, 1223.

DISQUALIFICATION PROCEEDINGS UNDER RULE 1.9(a) and (c)

¶ 14 The Oklahoma Supreme Court has observed “[t]he right to the assistance of legal counsel includes the right to be represented by a legal practitioner of one’s own choosing.” Towne v. Hubbard, 2000 OK 30, ¶ 14, 3 P.3d 154, 160. “Legal practitioners are not interchangeable commodities. Personal qualities and professional abilities differ from one attorney to another, making the choice of a legal practitioner critical both in terms of the quality of the attorney-client relationship and the type and skillfulness of the professional services to be rendered.” Id. For these reasons, the Oklahoma Supreme Court has adopted a high barrier a party must surmount to secure the disqualification of his opponent’s counsel. Hayes v. Central States Orthopedic Specialists, Inc., 2002 OK 30, ¶ 9, 51 P.3d 562, 565.

¶ 15 In the instant action, the district court determined Law Firm’s disqualification was warranted under Rule 1.9(a) and (c) because Law Firm represented Kaiser-Francis in the Wolverine Arbitration and obtained confidential information during such representation which Law Firm is attempting to use in the current litigation to Kaiser-Francis’s disadvantage.

¶ 16 Rule 1.9(a) and (c) provide:

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation.
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client, or when the information has been generally known; or
(2) reveal information relating to the representation except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client.

ATTORNEY-CLIENT RELATIONSHIP

¶ 17 The first important consideration is whether the district court properly determined Law Firm entered into an attorney-client relationship with Kaiser-Francis. We find there was more than sufficient evidence that Law Firm entered into an attorney-client relationship with Kaiser-Francis. Law Firm reviewed boxes of documents for Kaiser-Francis during discovery; signed documents as Kaiser-Francis’s counsel; and negotiated for and represented Kaiser-Francis’s interest, along with the other plaintiffs’ interests, in the Wolverine Arbitration.

¶ 18 We next address whether Kaiser-Francis waived its right to seek disqualification of Law Firm based on conflicts. We reiterate that disqualification of an attorney from subsequent representation is for the benefit of the former client; it protects the client’s feeling of loyalty owed by the attorney; and it can be waived only by the client. State ex rel. Oklahoma Bar Ass’n v. Berry, 1998 OK 73, ¶ 4, 969 P.2d 975, 978.

¶ 19 Law Firm urges it orally disclaimed the attorney-client relationship, with Kaiser-Francis’s consent, at the beginning of the representation and again in a letter dated June 25, 1996. Kaiser-Franeis claims its response letter only confirmed its waiver of conflicts when Law Firm represents clients against Kaiser-Franeis in matters unrelated to the Wolverine Arbitration; and since the instant litigation is related to the Wolverine Arbitration, there has been no waiver. The district court considered this evidence, but explained it was influenced by the one disinterested witness who testified that the real concern was only as to future representation of Samson in claims it might have against Kaiser-Franeis. The district court found Kaiser-Franeis agreed to waive any potential conflict of interest that might arise in the event Law Firm represented Samson against Kaiser-Franeis; however, it was “loathe to find that there was no attorney-client relationship between” Law Firm and Kaiser-Franeis absent a written agreement memorializing the limitations to the legal representation.

¶20 We agree with the district court’s determination that Kaiser-Franeis did not waive its right to seek disqualification of Law Firm for conflicts under Rule 1.9 in the instant litigation.

SUBSTANTIALLY RELATED MATTER

¶ 21 Law firm next contends the instant litigation is not “substantially related” to its prior representation of Kaiser-Franeis. Law Firm urges the district court failed to make such a necessary finding. We thus review to determine if the district court addressed the “substantially related” requirement of Rule 1.9(a).

¶ 22 The district court’s order discussed at length the different tests for determining whether a matter is “substantially related” to a former representation. The district court recognized some jurisdictions hold that once a “substantial relationship” is found to exist under Rule 1.9(a), there is a rebuttable presumption the lawyer received confidential information from the prior representation. The district court also discussed and declined to follow other jurisdictions which impose an irrebuttable presumption. The district court decided the instant matter would be “substantially related” to the Wolverine Arbitration if the court found confidential information was provided to Law Firm in the Wolverine Arbitration which Law Firm is now using or could use in the present action to Kaiser-Francis’s disadvantage. This is in accord with the Oklahoma Supreme Court’s decision in Piette.

CONFIDENTIAL INFORMATION

¶ 23 Our next inquiry is whether the district court reasonably inferred from the circumstances that Law Firm was provided with confidential information concerning Kaiser-Francis to such extent that it has knowledge of the confidential information. The Rules of Professional Conduct define “knowledge” as “actual knowledge of the fact in question,” but state that “knowledge may be inferred from the circumstances.” The district court recognized “there is widely divergent evidence regarding what was or was not provided to the [Law] Firm for review in connection with the production of documents in response to the Discovery Order.” The district court found Kaiser-Francis did turn over information to the Law Firm to review and that the documents contained some confidential information. The district court found Kaiser-Francis would not have produced the documents absent an amendment to the arbitration agreement which provided for the enforcement of the confidentiality provisions of the arbitration agreement by ONEOK. The district court was further influenced by Law Firm’s letter dated May 3, 1995 acknowledging that each settlement in the Wolverine Arbitration is “highly individualized” and will be kept confidential by the Law Firm even from other members of the plaintiffs’ group.

¶ 24 The district court agreed, in part, with Law Firm’s contention that aspects of the Kaiser/ONEOK Settlement were generally known and could be ascertained from public records, and hence did not qualify as confidential information under Rule 1.9. However, the district court considered the allegations in PITCO’s petition relating to the Kaiser/ONEOK Settlement to be so specific that such information could only come from confidential information which would be encompassed by Rule 1.9. The district court also heralded the fact that Law Firm requested discovery of the Kaiser/ONEOK Settlement within two weeks of filing the PITCO petition as the “red flag” indicating Law Firm’s knowledge of the confidential Kaiser/ONEOK Settlement.

¶ 25 Law Firm contends the district court’s findings were based on “speculation” because the Kaiser/ONEOK Settlement was -not a part of the hearing record; thus the district court did not compare the allegations of PIT-CO’s petition with the Kaiser/ONEOK Settlement to determine if such allegations arose from Law Firm’s prior review of the Kaiser/ONEOK Settlement. Law Firm urges that had the district court done so, it would have determined the allegations in the PITCO petition are contrary to the actual terms of the Kaiser/ONEOK Settlement. We agree with the district court’s determination that it is not required to conduct an inquiry and identify the confidential information with the specificity desired by Law Firm; otherwise the confidential nature of the information would be compromised. Chrispens, 897 P.2d at 114.

¶26 Law Firm finally asserts Appellees’ four month delay in requesting Law Firm’s disqualification constituted a waiver of their right to seek disqualification. Law Firm urges the district court erred by not considering the motive behind such delay. We find the district court specifically addressed its obligation to insure that disqualification motions are not used for strategic purposes in its order. The district court did not err.

¶27 The evidence supports the district court’s finding that Law Firm had knowledge of confidential information derived from its prior representation of Kaiser-Francis and that such knowledge disqualifies Law Firm from representing PITCO in this substantially related action against Kaiser-Francis.

¶28 On September 17, 2002, Law Firm filed with this Court a “motion for summary reversal based on mootness.” Law Firm’s motion is denied.

¶ 29 AFFIRMED.

JOPLIN, V.C.J., and BUETTNER, J., concur.

      . Piette has no recitation to facts. As a result, the Oklahoma Supreme Court did not identify whether it was interpreting Rule 1.9 (which generally prohibits a lawyer from bringing an action against a former client in the same or substantially related matter) or Rule 1.10 (which imputes disqualification to a law firm which employs an attorney who gained confidential information regarding a former client during the course of his previous employment.) We note Piette cites to both Parker v.Volkswagenwerk Aktiengesellschaft, 245 Kan. 580, 781 P.2d 1099 (1989) and Lansing-Delaware as authority for its holding. Both Parker and Lansing-Delaware dealt with the disqualification of counsel under Rules 1.9 and 1.10. We also note the Kansas Supreme Court in Chrispens v. Coastal Refining & Marketing, Inc., 257 Kan. 745, 897 P.2d 104 (1995), differentiated that in disqualification proceedings brought only under Rule 1.9, the trial court should not hold a hearing, but should only determine whether the attorney formerly represented the client in previous matters and whether the matters are substantially related to the instant matter. Once a "substantial relationship” is found, "an irrebuttable presumption arises that the former client revealed facts requiring the attorney’s disqualification.” Id. at 114. Chrispens explains that to hold a hearing when disqualification is sought solely under Rule 1.9 would "frustrate the reason underlying the rule, which is to prevent disclosure of the confidential information the rule is designed to protect.” Id. However, since our Supreme Court has not specifically identified the standards that must be met in a disqualification proceeding brought under Rule 1.9 only, we apply the standards set forth in Piette.

      . Kaiser-Francis’s evidence was that it produced settlement agreements and related documents, including the Kaiser/ONEOK Settlement, to Law Firm; Law Firm agreed to be responsible for managing Kaiser’s production; Law Firm pledged not to disclose confidential information to any other claimant; members of Law Firm were heavily involved in the review and production of Kaiser-Francis's documents billing over 140 hours of legal time to such services; and Law Firm signified its review of Kaiser-Francis's ONG settlement related documents by inserting the yellow sheet in the box. In contrast. Law Firm produced evidence that its review of the Kaiser-Francis documents in the Wolverine Arbitration was cursory and limited to removing attorney-client privileged communications between Kaiser-Francis and its regular outside counsel; and that it did not review any information that it has now requested from Kaiser-Francis in the PITCO lawsuit.

      . See Comment to Rule 1.9 (Information acquired by the lawyer in the course of representing a client may not subsequently be used or revealed by the lawyer to the disadvantage of the client. However, the fact that a lawyer has once served a client does not preclude the lawyer from using generally known information about that client when later representing another client.)


author: KENNETH L. BUETTNER, Judge:

text:
    2002 OK CIV APP 119
    Donald CUNNINGHAM, Petitioner, v. OKLAHOMA DEPARTMENT OF CORRECTIONS and the Workers’ Compensation Court, Respondents.
    No. 97,731.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Oct. 31, 2002.
    Pamela K. Morgan, Jack G. Zurawik, P.C., Tulsa, OK, for Petitioner.
    Chad R. Whitten, the Whitten Law Firm, Tulsa, OK, for Respondent Oklahoma Department of Corrections.
   Opinion by

KENNETH L. BUETTNER, Judge:

¶ 1 Donald Cunningham was injured by a needle stick he sustained June 24,1997, while employed by the Department of Corrections (DOC). He filed his Form 3 (claim) July 8, 1997. On November 1, 1997, the time in which a worker had to prosecute his claim changed from five to three years. On December 26, 2001, DOC filed a motion to dismiss Cunningham’s claim for failure to timely prosecute the claim. The Workers’ Compensation Court granted the motion to dismiss. We sustain.

¶ 2 A Form 3 initiates a claim for workers’ compensation benefits. Title 85 Supp.1994 § 43(B) allowed a claimant five years from the time of filing his Form 3, or from the date of last payment of compensation or wages in place thereof, to request a hearing and final determination of his claim. Section 43(B) was amended and the time for prosecuting the claim shortened from five years to three years, effective November 1,1997.

¶ 3 Cunningham suffered an on-the-job injury while employed by DOC. He stated that while he was helping a doctor, he received a needle stick in his leg. He also claimed psychological overlay.

¶4 The record consists of the following documents:

1. July 8,1997 — Form 3

2. July 31, 1997 — Entry of Appearance for DOC

3. September 25, 1997 — Form 10 (Answer of DOC admitting claimant stuck with needle while on the job)

4. November 4, 1997 — Form 9 (Claimant’s Motion to Set for Trial)

5. December 8, 1997 — unfiled Prehear-ing Conference Docket

6. December 11, 1997 — Form 10 (Answer of Respondent with notation of intention to introduce blood test dated August 10,1997)

7. January 7, 1998 — Form 10 stating results of blood test attached (attachment not in record)

8. January 21, 1998 — unfiled Temporary Total Disability hearing statement with notation “Take no action — New Form 9 must be filed”

9. September 23, 1998 — Form 10, listing a witness

10. November 30, 2001 — Form 9 (Claimant’s Motion to Set for Trial requesting periodic blood testing for hepatitis and HIV as issue to be tried)

11. November 30, 2001 — Form 13 (Claimant’s Request for Prehearing Conference)

12. December 26, 2001 — -Form 13 (Respondent’s Motion to Dismiss per 85 O.S. § 43(B) with Brief in Support of Motion to Dismiss)

13. Claimant’s Response to Motion to Dismiss.

14. April 26, 2002 — Order Dismissing the Claim

¶ 5 The trial court found that DOC had denied the claim from the outset and had not paid Cunningham anything in connection with the claim. The order further stated that when the matter came up for trial, January 21, 1998, no action was taken and the matter was stricken for the filing of a new Form 9. The order also noted that a Form 9 was filed November 30, 2001 and that DOC responded with a Form 13 Motion to Dismiss pursuant to 85 O.S. § 43. The court asked for briefs which the parties submitted.

¶ 6 The determinative question is which time limitation for prosecution of a claim applies: the one in effect at the time of injury or the one later enacted, but while the claim was still alive.

¶ 7 In general, a “... compensation claim is controlled by the laws in existence at the time of the injury and not by laws enacted thereafter.” Baker v. C-E Natco, 1987 OK CIV APP 18, ¶ 5, 737 P.2d 955, 957. The Baker Court cited Magnolia Petroleum Co. v. Watkins, 1936 OK 372, 57 P.2d 622, 623 (1936), for the general rale that the right of an employee to compensation is governed by the law on the date of injury controls, “and that no subsequent amendment which has the effect of increasing or diminishing the amount of compensation recoverable can operate retrospectively to affect in any way the rights and obligations prior thereto fixed.” In the instant case, we are not dealing with an amendment that increases or diminishes compensation nor is there an issue as to the right to compensation based upon the employment relationship. Rather, the issue is the procedural matter of how long can a case be pending without hearing. The Oklahoma Supreme Court held, in Marley Cooling Tower Company v. Cooper, 1991 OK 62, 814 P.2d 472, that when a limitation period (in this case, time in which to file a claim) whose time had not expired at the time of the enactment of a new limitation period, then the claimant had, at a minimum, the new limitation period from the date of the effective date of the amended law. The Supreme Court held that a defendant does not have a vested right in a statute of limitations until the statute actually bars the claim. As a result, the statute of limitations could be extended as long as the claim was still alive.

¶ 8 Although Marley Cooling Tower Company dealt with extending a limitation period, to two years rather than one year to file, which was the law at the time of injury, the Supreme Court’s reasoning must apply to the facts at hand as well. That is, a claimant has no vested right to a 5 year period to request a hearing so long as when the period is shortened, the claim is not extinguished by the shortened period. This would be similar to the notion that once a trial has been set on a particular day in the future, neither side has a vested right in that trial date, so that the trial date could not be extended or shortened. It is clear that a court has the discretion to change a trial date, subject to normal abuse of discretion, ie. prejudice to the parties, rules. There is no argument that Cunningham could not have requested hearing within the three year period after the effective date of the amendment.

¶ 9 The Supreme Court stated in Marley: Further, insofar as a statute of limitation affects rights of action in existence when it becomes effective, in the absence of a contrary provision, a new limitation period covering a claim begins to effect the claim when it is first subjected to the new statute’s operation. [Citation omitted.] Such has been the law in this jurisdiction since at least 1896.

814 P.2d at 475.

¶ 10 The amendment providing three years in which to prosecute a claim became effective November 1, 1997. There was no action on Cunningham’s claim between November 4, 1997 and November 30, 2001. Therefore, assuming the amendment gave a claimant three years from the effective date of the amendment, the time limit would have expired November 1, 2000, more than one year before Cunningham filed his Form 13.

¶ 11 We hold that because Cunningham’s time in which to prosecute his claim had not expired at the time of the amendment which shortened the period, the amount of time to request a hearing was governed by the new time limitation. The trial court properly dismissed the claim for failure to prosecute within three years.

SUSTAINED.

JOPLIN, V.C.J., dissents, and JONES, J., concurs.

      . 85 O.S. Supp.2001 § 43(B):
      B. When a claim for compensation has been filed with the Administrator as herein provided, unless the claimant shall in good faith request a hearing and final determination thereon within three (3) years from the date of filing thereof or within three (3) years from the date of last payment of compensation or wages in lieu thereof, same shall be barred as the basis of any claim for compensation under the Workers' Compensation Act and shall be dismissed by the Court for want of prosecution, which action shall operate as a final adjudication of the right to claim compensation thereunder.
      85 O.S. § 43 was again amended in 2001, but § 43(B) was unchanged.

      . Claimant also attempts to raise an issue of fact in his appellate brief which was not presented to the trial court. On appeal, he claims that the blood-test was paid by DOC, apparently in an attempt to extend the limitation period. The trial court found that he had not been compensated and the record does not contain evidence to refute this.


author: BENCH, Judge:

text:
    2002 UT App 342
    STATE of Utah, Plaintiff and Appellee, v. Rollo Kent BICKLEY, Defendant and Appellant.
    No. 20010416-CA.
    Court of Appeals of Utah.
    Oct. 18, 2002.
    Kent R. Hart and Marnié D. Flores, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Atty. Gen., Jeffrey S. Gray, and Nicholas J. Angelides, Asst. Attys. Gen., Salt Lake City, for Appellee.
    Before Judges BENCH, GREENWOOD, and THORNE.
   OPINION

BENCH, Judge:

¶ 1 Defendant appeals from a restitution order entered in connection with his conviction for criminal nonsupport, a class A misdemeanor, in violation of Utah Code Ann. §76-7-201 (1999).

BACKGROUND

¶2 In 1994, the State prosecuted Defendant for failing to pay child support for the period between June 1, 1993 and March 31, 1994. Defendant and the State entered into a diversion agreement, which Defendant satisfied, and on October 27, 1995, that case was dismissed.

¶ 3 In 1999, the State again charged Defendant with criminal nonsupport. An Amended Information listed the nonpayment period from February 1, 1997 to January 10, 2000. Defendant entered a plea of guilty. Under the terms of the plea agreement, Defendant pleaded “guilty to the Count I of the Information and agree[d] that total victim restitution be entered in the amount of my obligation for child support arrears ... with the understanding that the amount of court[-]ordered restitution and monthly [payments] remain to be determined by the court.” Defendant was apparently hoping that court-ordered restitution would be less than total victim restitution because health problems inhibited his ability to pay.

¶4 The Honorable Anne M. Stirba conducted the entry of plea hearing and, after conducting a colloquy, accepted Defendant’s guilty plea. Prior to sentencing, Defendant filed a motion to determine the amount of restitution and to limit any award to the dates specified in the Amended Information and plea agreement. The Honorable Pat B. Brian presided at a hearing on this motion and conducted the sentencing hearing. Judge Brian denied Defendant’s motion and determined that Defendant had agreed to pay “complete restitution,” including arrear-ages that predated Defendant’s marriage in 1985. Following this hearing, Defendant was ordered to pay restitution of approximately $32,000. Defendant appeals, contending that the trial court erred in ordering restitution for arrearages accruing before February 1, 1997, which is the earliest date charged in the Amended Information.

ISSUES AND STANDARDS OF REVIEW

¶ 5 Defendant argues that the trial court erred in ordering him to pay restitution for all child support arrearages dating back to 1983. We “will not disturb a trial court’s restitution order ‘unless it exceeds that prescribed by law or otherwise abused its discretion.’ ” State v. Weeks, 2000 UT App 273,¶ 7, 12 P.3d 110 (quoting State v. Schweitzer, 943 P.2d 649, 653 (Utah Ct.App. 1997) cert. granted, 21 P.3d 218 (Utah 2001)). However, we review a trial court’s interpretation of restitution statutes for correctness. See State v. Mast, 2001 UT App 402,¶ 7, 40 P.3d 1143.

¶ 6 Second, Defendant argues that the trial court violated his constitutional rights when it ordered him to pay restitution for conduct not charged in the Amended Information and for conduct involved in a previous charge that was dismissed. “[T]he ultimate question of whether the trial court strictly complied with constitutional and procedural requirements for entry of a guilty plea is a question of law that is reviewed for correctness.” State v. Holland, 921 P.2d 430, 433 (Utah 1996).

ANALYSIS

I. Restitution

¶ 7 “ ‘We begin our analysis by examining the plain language of the applicable statutes and apply other methods of statutory interpretation only when the language is either ambiguous or inconsistent.’ ” Mast, 2001 UT App 402 at ¶ 10, 40 P.3d 1143 (quoting State v. Westerman, 945 P.2d 695, 696 (Utah Ct.App.1997)). “ ‘When examining a statute’s plain language, we strive to give meaning to each section of the statute in order to give effect to all of the statute’s terms.’ ” Id. (quoting Westerman, 945 P.2d at 697).

¶ 8 A court may order restitution

[w]hen a person is convicted of criminal activity that has resulted in pecuniary damages, in addition to any other sentence it may impose, the court shall order that the defendant make restitution to the victims ..., or for conduct for which the defendant has agreed to make restitution as part of a plea agreement.

Utah Code Ann. § 76-3-201(4)(a)(i) (1999). “Criminal activities means any offense of which the defendant is convicted or any other criminal conduct for which the defendant admits responsibility to the sentencing court....” Utah Code Ann. § 76 — 3—201(l)(b) (internal quotations omitted); see also State v. Watson, 1999 UT App 273,¶ 3, 987 P.2d 1289 (per curiam).

¶ 9 Under the Utah Code, a court can order a defendant to pay restitution “for conduct for which the defendant has agreed to make restitution as part of a plea agreement.” Utah Code Ann. § 76-3-201(4)(a)(i). This restitution includes “any criminal conduct admitted by the defendant ... or to which the defendant agrees to pay restitution.” Utah Code Ann. § 76-3-201(8)(a). According to the plain language of the statute, restitution can include payment for crimes not listed in the information so long as a defendant admits responsibility or agrees to pay restitution. See id. However, a defendant cannot be ordered to pay restitution for criminal activities for which the defendant did not admit responsibility, was not convicted, or did not agree to pay restitution. See Utah Code Ann. § 76-3-201.

¶ 10 The terms of the plea agreement in this ease stated “I [Defendant] will plead guilty to the Count I of the Information and agree that total victim restitution be entered in the amount of my obligation for child support arrears.... ” The Amended Information charged Defendant with criminal nonsupport for the dates of February 1, 1997 to January 10, 2000. The trial court’s restitution order includes payment for dates prior to those alleged in the Amended Information. Payment for such arrearages is proper only if “responsibility for the criminal conduct be firmly established, much like a guilty plea, before the court can order restitution.” Watson, 1999 UT App 273 at ¶ 5, 987 P.2d 1289; see also Utah Code Ann. § 76-3-201.

¶ 11 The State argues that “total victim restitution” is the equivalent of “complete restitution.” “Complete restitution means the restitution necessary to compensate a victim for all losses caused by the defendant.” Utah Code Ann. § 76-3-201(4)(c)(i) (emphasis added). Therefore, according to the State’s argument, responsibility for all arrearages is firmly established and proper under the statute. Defendant, on the other hand, argues that the trial court erred by imposing complete restitution without firmly establishing that Defendant agreed to pay restitution for arrearages in years not charged in the Amended Information. Defendant claims that “total victim restitution,” as used in the plea agreement, only requires payment for the time period listed in the Amended Information and is not the equivalent of complete restitution.

¶ 12 Based on our review of the plea agreement and the record, we cannot say that responsibility for all arrearages were firmly established. See Mast, 2001 UT App 402 at ¶ 18, 40 P.3d 1143; Watson, 1999 UT App 273 at ¶5, 987 P.2d 1289. “Without making inferences as the trial court did, it cannot be said that [Defendant in this case] admitted responsibility for” restitution prior to 1997. Watson, 1999 UT App 273 at ¶ 5, 987 P.2d 1289. Accordingly, we conclude that the trial court erred in requiring Defendant to pay restitution for arrearages outside the time period alleged in the Amended Information.

II. Remedy

¶ 13 The parties disagree as to what remedy is appropriate should we conclude that the trial court erred in ordering complete restitution without firmly establishing that Defendant agreed to pay for all arrearages. The State argues that we should vacate the guilty plea because “[D]efendant did not understand, or was not otherwise properly advised of, the ... sentence that may be imposed.” In contrast, Defendant argues that we should remand this case for a new restitution hearing as we did in State v. Patience, 944 P.2d 381 (Utah Ct.App.1997).

¶ 14 In Patience, the defendant and the state entered into a plea agreement. See id. at 383. The agreement contained a “mistake as to the law in effect at the time the parties entered into the plea agreement.” Id. at 388. The defendant argued that her conviction in the plea agreement was illegal “and that she should be resentenced according to the lesser penalty afforded by the amended statute in effect at the time of her sentencing.” Id. at 384 (footnote omitted). The state, meanwhile, argued that the plea should be vacated due to the mistake. See id. at 385. We compared the plea agreement to a contract and concluded that the plea agreement was valid. See id. at 387-88 (“Under contract law, a party may not rescind an agreement based on mutual mistake where that party bears the risk of mistake.”).

¶ 15 Defendant argues that the State bore the risk of mistake as to the meaning of “total victim restitution” so, according to Patience, we should remand for a restitution hearing. We disagree. Based on oral argument and from our review of the record, it is clear that there was no meeting of the minds as to the meaning of “total victim restitution.” Therefore, the parties failed “to reach a mutually desirable agreement.” State v. West, 765 P.2d 891, 896 (Utah 1988) (discussing how contract law principles are applicable to plea agreements); see 17A Am.Jur.2d Contracts § 31 (1991) (“Where after the parties have apparently agreed to the terms of a contract, circumstances disclosed a latent ambiguity in the meaning of an essential word by which one of the parties meant one thing and the other a different thing, the difference going to the essence of the supposed contract, the result is that there is no contract.”) (footnote omitted). Additionally, unlike in Patience, the State in this case is not “generally in the better position to know” the meaning of the disputed term total victim restitution. Patience, 944 P.2d at 388.

¶ 16 Language in State v. Bern, 645 P.2d 44 (Utah 1982), is helpful to our analysis of the appropriate remedy in this case. In Bero, the supreme court stated:

The court should understand clearly and make sure the parties understand clearly the terms which they have agreed to before acting upon the [plea] agreement. Where there is an error, frequently it can be most easily corrected by placing the parties in their original positions. As long as the defendant retains constitutional protections, no harm need be suffered.

Id. at 47. In this case, both parties to the plea agreement lacked clear understanding of certain terms to which they allegedly agreed. If an agreement is reasonably disputed, or if there is some misunderstanding, it is the responsibility of the trial court to assure that the agreement is clear to all parties before ordering restitution beyond that alleged in the information. See id. Because both parties lacked a clear understanding of what was meant by total victim restitution, this situation “can be most easily corrected by placing [Defendant and the State] in their original positions.” Id.

CONCLUSION

¶ 17 Accordingly, we vacate the plea agreement and remand to the trial court for further proceedings.

¶ 18 WE CONCUR: PAMELA T. GREENWOOD, and WILLIAM A. THORNE JR., Judges.

      . Restitution was originally entered for $32,024 but, five months later, the trial court reduced the restitution order to $31,567.98.

      . We cite to the version of the statute in effect when Defendant entered his guilty plea in December of 2000. The 2002 amendment, effective May 6, 2002, renumbered and eliminated some sections.

      . The State also argues that Defendant understood that "total -restitution” meant "complete restitution” because of defense counsel's statements. This argument fails. "[Statements of defense counsel” are not relevant to the "plain wording of section 76 — 3—201 (1)(b)[, which] requires that the ‘defendant admit[ ] responsibility to the sentencing court,' not to defense counsel.” State v. Galli, 967 P.2d 930, 937 (Utah 1998) (citation omitted) (emphasis in original) (third alteration in original).

      .In light of this conclusion we need not address Defendant's constitutional arguments. In general, " '[a] constitutional question is not to be reached if the merits of the case in hand may be fairly determined on other than constitutional issues.' ” State v. Webster, 2001 UT App 238,- ¶ 30, n. 8, 32 P.3d 976 (quoting Hoyle v. Monson, 606 P.2d 240, 242 (Utah 1980)).


author: LEHMAN, Justice.

text:
    2002 WY 185
    Jorge T. SOTOLONGO-GARCIA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 02-28.
    Supreme Court of Wyoming.
    Dec. 31, 2002.

      Mary B. Guthrie, Cheyenne, WY, Representing Appellant.
    Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Rebecca A. Lewis, Special Assistant Attorney General.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   LEHMAN, Justice.

[¶ 1] Appellant Jorge T. Sotolongo-Gar-cia appeals his convictions for possession with intent to deliver marijuana and conspiracy to deliver marijuana. Appellant asserts the jury was presented with insufficient evidence to support the verdict on both charges. Satisfied with the evidence as reflected by the record, we affirm.

ISSUE

[¶ 2] Was evidence sufficient to permit the jury to find appellant guilty of possession with intent to deliver marijuana and conspiracy to deliver marijuana?

FACTS

[¶ 3] A traffic stop on 1-80 in Laramie County revealed two occupants, one of which was appellant, and 77 pounds of marijuana. Appellant claims he was just along for the ride.

[¶ 4] Appellant’s partner, Steven Nevling, was a car mechanic in San Diego, California who repaired cars for drugs or money. Pursuing his chosen career, he worked on a 1994 Mitsubishi Gallant for a man called “Alan.” Nevling had known Alan for about three months. Nevling also knew Alan was in the drug business because Alan supplied Nevling with drugs. Nevling, however, had previously met appellant only one time through an introduction by Alan.

[¶ 5] While working on the Mitsubishi, Nevling was approached by Alan and asked if he would drive the ear to Iowa in return for $1,500 and a quarter ounce of methamphetamine. Alan explained that his original driver could not, for whatever reason, make the trip. After agreeing, Nevling and Alan met three individuals who loaded the trunk with marijuana. Alan then instructed Nevling to follow him to the home where Nevling was first introduced to appellant. At the home, Nevling was informed that appellant would join him on the trip.

[¶ 6] At this juncture, appellant got into Alan’s car, and Nevling was instructed to follow appellant and Alan. Nevling did so until they passed through an immigration checkpoint, after which appellant joined Nevling in the Mitsubishi. Alan gave appellant $300 for expenses, along with a cell phone, and appellant and Nevling began their journey to Iowa.

[¶ 7] Nevling drove from San Diego to Las Vegas. Appellant then drove to Rock Springs, whereupon Nevling again took over. During the trip, the cell phone rang several times. Appellant would speak in Spanish to the caller, and a couple of times Nevling heard appellant use the word “mota,” which is Spanish slang for marijuana.

[¶ 8] West of Rawlins, appellant became ill. Nevling called 911 and got directions to the hospital. Having delivered appellant to the hospital, being low on cash, and not knowing who to contact once he reached Iowa, Nevling used the cell phone to call Alan. He was told to stay with appellant. Later, again on the cell phone with Alan, Nevling was told to get the phone to appellant. He did so, and appellant spoke with Alan. Sometime after that, appellant left the hospital against medical advice, and they continued them journey.

[¶ 9] The twosome was stopped fifteen miles west of Cheyenne because the 1994 Mitsubishi lacked working taillights and Nevling was driving erratically. They both claimed not to know the other. The interior of the car exuded an overwhelming odor of diesel fuel, a ruse sometimes used to mask the scent of drugs from dogs. A canine unit was called to the scene and, after the dog alerted, officers found about twenty bricks of marijuana in the trunk. When questioned later, appellant admitted he knew there were drugs in the car but said they belonged to Nevling.

[¶ 10] The State entered into a plea agreement with Nevling, who, pursuant to that agreement, testified against appellant at trial.

STANDARD OF REVIEW

[¶ 11] When addressing a claim that the evidence is insufficient to sustain the conviction for a crime, we apply the following standard:

This Court assesses whether all the evidence which was presented is adequate enough to form the basis for a reasonable inference of guilt beyond a reasonable doubt to be drawn by a finder of fact when that evidence is viewed in the light most favorable to the State. We will not substitute our judgment for that of the jury when we are applying this rule; our only duty is to determine whether a quorum of reasonable and rational individuals would, or even could, have come to the same result as the jury actually did.
This inquiry does not require a court to determine whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Rather, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This standard gives the trier of fact the responsibility to fairly resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the facts. “Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.”

Willis v. State, 2002 WY 79, ¶ 8, 46 P.3d 890, ¶ 8 (Wyo.2002) (citations omitted).

DISCUSSION

Possession with intent to deliver

[¶ 12] Appellant’s brief questions only the “possession” element and does not challenge the element of “intent to deliver.” Possession is proved when the prosecution establishes that the accused either individually or jointly with another exercised dominion and control over the substance, had knowledge of its presence, and had knowledge that the substance was a controlled substance. Wise v. State, 654 P.2d 116, 119 (Wyo.1982). Direct evidence of actual possession of the substance is not required. Constructive possession is sufficient and can be proved by circumstantial evidence linking together a series of facts which results in a reasonable inference that the defendant had the necessary control over and knowledge of the drugs. Houghton v. State, 6 P.3d 643, 647 (Wyo.2000); Wise, 654 P.2d at 119.

[¶ 13] Clearly, the evidence, as recited in the facts, not only reaches the sufficiency threshold but borders on overwhelming. Appellant was a prior acquaintance of Alan; it was Alan who arranged for the marijuana to be transported; appellant shared in the driving chores; appellant remained in contact with Alan by cell phone throughout the journey; appellant was given the cash by Alan to pay for the expenses of the trip; appellant had the contact information once they reached their destination in Iowa; and appellant said he knew there were drugs in the car. This evidence not only supports the possession but the intent to deliver as well.

Conspiracy to deliver marijuana

[¶ 14] The elements of a conspiracy involving a controlled substance are: (1) at least a tacit understanding between the defendant and a coconspirator to commit an act violative of Wyoming’s controlled substances act, and (2) intent by the defendant to commit the elements of the offense which was the object of the understanding. Due to the covert nature of the crime, circumstantial evidence may be relied upon to establish the conspiracy. Gilliam v. State, 890 P.2d 1104, 1108 (Wyo.1995). The amended information in this case alleges that appellant conspired with “Steven Nevling and others whose full identities are presently unknown to commit the crime of Delivery of Marijuana.” “All that is required is that ‘a participant know of the others’ existence and their activities to further the conspiracy.’ ” Marquez v. State, 12 P.3d 711, 716 (Wyo.2000) (citations omitted).

[¶ 15] Once again, a review of the evidence presented clearly ties appellant to both Nevling and Alan in a conspiracy to deliver marijuana. Appellant’s real argument is that Nevling was not credible because of his plea agreement with the State. However,

[w]e have consistently held that even though it is possible to draw other inferences from the evidence presented, it is the responsibility of the jury to resolve conflicts in the evidence. The factfinder— in this case, a jury — did that. The jury is entitled to weigh and disregard the evidence intended to discredit the witnesses for the State.

Willis, ¶ 15 (quoting Broom v. State, 695 P.2d 640, 642 (Wyo.1985)).

CONCLUSION

[¶ 16] Appellant’s trial counsel said it best in closing when he told the jury, “this case does come down to Mr. Nevling’s testimony because if you believe him, then you can find Mr. Sotolongo guilty, but you have to believe Mm.” Apparently the jury did.

[¶ 17] Affirmed.


text:
    Charles J. CONRAD, Appellant(s), v. STATE of Alaska, Appellee(s).
    No. A-08065.
    Court of Appeals of Alaska.
    Dec. 20, 2002.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   Order

Petition for Rehearing

IT IS ORDERED:

The State seeks rehearing of our decision in this case, Conrad v. State, 54 P.3d 313 (Alaska App.2002). The State contends that our decision is flawed because we misread Doyle v. State, 633 P.2d 306 (Alaska App. 1981) and thereby misinterpreted AS 28.35.030(a)(2).

The ultimate issue in this case is to discern the meaning of AS 28.35.030(a)(2). This statute declares that a person commits the offense of driving while intoxicated if the person operates or controls a motor vehicle “when, as determined by a chemical test taken within four hours after the alleged offense was committed, there is 0.08 percent or more by weight of alcohol in the person’s blood ....”

The problem here is the ambiguous reference of the adverb “when”. Does the statute mean that a person is guilty if they operate or control a motor vehicle “when ... [their blood contains] 0.08 percent or more ... alcohol [by weight]”? Or does the statute mean that a person is guilty if they operate or control a motor vehicle “[and later], as determined by a chemical test taken within four hours [of] the alleged offense ..., [then-blood contains] 0.08 percent or more ... alcohol [by weight]”?

In our initial decision, we recognized that other jurisdictions have statutes which specify that a defendant’s guilt rests on the defendant’s blood alcohol level at the time of the test, not at the time of the defendant’s driving. See Conrad, 54 P.3d at 315 n. 7. But AS 28.35.030(a)(2) is no more than ambiguous on this point, and the legislative history of this statute does not reveal any clear intent on the legislature’s part to move the focus of the offense away from the defendant’s level of intoxication or level of blood alcohol at the time of driving. We therefore resolved the ambiguity against the government, construing AS 28.35.030(a)(2) to refer to the level of alcohol in the defendant’s blood at the time of the defendant’s driving rather than the time of the defendant’s chemical test.

In support of this conclusion, we cited our prior decision in Doyle v. State. In its petition for rehearing, the State points out that Doyle addressed a different statute — AS 28.36.033, the statute that establishes presumptions of intoxication or lack of intoxication based on the results of a defendant’s chemical test when the defendant is charged under AS 28.35.030(a)(1), the “under the influence” theory of prosecution. The State points out that AS 28.35.033 was enacted before the legislature added the “blood alcohol” theory of prosecution in AS 28.36.030(a)(2). Based on this chronology, the State asserts that Doyle provides no insight into the meaning of AS 28.35.030(a)(2).

We disagree. As we explained in Doyle, the presumptions of intoxication or lack of intoxication (depending on the defendant’s chemical test result) codified in AS 28.35.033 are premised on the notion that the defendant’s guilt rests on the defendant’s level of intoxication at the time of driving. Although Doyle dealt with prosecutions under subsection (a)(1) of the statute (the “under the influence” theory), it is relevant that we construed AS 28.35.030 as referring to the time of the defendant’s driving rather than the time of the defendant’s chemical test. If the legislature had intended AS 28.35.030(a)(2) to change the focus of the offense from the time of driving to the time of the defendant’s chemical test, it is reasonable to assume, that the legislative history of subsection (a)(2) would expressly note this significant change. But it does not. The absence of any such legislative history supports our decision that a defendant’s guilt under subsection (a)(2) hinges on the defendant’s blood alcohol level at the time of defendant’s driving.

Finally, we note that if we were to construe AS 28.35.030(a)(2) to mean that a defendant’s guilt hinges on the defendant’s blood alcohol level at the time of the chemical test, this would raise another set of problems. Alaska law guarantees DWI defendants the right to obtain an independent test, separate from the mandated chemical test administered by the police. See Gundersen v. Anchorage, 762 P.2d 104, 112 (Alaska App.1988); Anchorage v. Serrano, 649 P.2d 256, 258 & n. 5 (Alaska App.1982). The two test results often differ, sometimes significantly. For example, there is an appeal currently pending in this Court where the defendant’s breath test result was above the legal limit but the defendant’s later blood test result (still within four hours of the defendant’s driving) was below the legal limit.

Neither AS 28.35.030 nor any other provision of AS 28.35 gives any indication of how to resolve this problem of competing test results. The fact that the pertinent statutes do not mention this problem suggests that the legislature did not think this would be a problem — because the defendant’s guilt hinges on the defendant’s blood alcohol level at a single point in time: the time at which the defendant was driving.

For these reasons, we reaffirm our conclusion that a defendant’s guilt under AS 28.35.030(a)(2) hinges on the defendant’s blood alcohol level at the time the defendant operated or controlled the motor vehicle, rather than the defendant’s blood alcohol level at the time of the defendant’s chemical test(s).

The State’s petition for rehearing is DENIED.

Entered at the direction of the Court.