author: LILE, Vice Presiding Judge. LUMPKIN, J: CHAPEL, Judge,

text:
    2004 OK CR 24
    John Marion GRANT, Appellant, v. STATE of Oklahoma, Appellee.
    No. D 2000-653.
    Court of Criminal Appeals of Oklahoma.
    July 16, 2004.

      William H. Luker, Appellate Defense Counsel, Norman, OK, Attorney for Appellant on appeal.
    W.A. Drew Edmondson, Attorney General of Oklahoma, Brant M. Elmore, Assistant Attorney General, Oklahoma City, OK, Attorneys for Appellee on appeal.

      . "The defendant was previously convicted of a felony involving the use or threat of violence to the person;” "The murder was committed by a person while serving a sentence of imprisonment on conviction of a felony;” and "The existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.”

   OPINION ON REMAND

LILE, Vice Presiding Judge.

¶ 1 John Marion Grant was tried by jury and convicted of First Degree Murder (21 O.S.1991, § 701.10) in Osage County District Court Case No. CF-99-28. The jury sentenced Grant to death after finding three aggravating circumstances. This Court affirmed the judgment and sentence. Grant v. State, 2002 OK CR 36, 58 P.3d 783. Grant subsequently filed an application for post conviction relief, which was denied.

¶ 2 In Grant v. Oklahoma, — U.S.-, 124 S.Ct. 162, 157 L,Ed.2d 12 .(2003), the United States Supreme Court granted Grant’s petition for .writ of certiorari, vacated the judgment, and remanded the case back to this Court for further consideration in light of Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). This Court ordered the parties to submit briefs supporting their positions on the issues raised in this case'in light of the Wiggins decision, which was handed down after our decision in Grant’s direct appeal. This opinion supplements our original opinion, Grant, 2002 OK CR 36, 58 P.3d 783, with analysis based on the Wiggins decision.

¶ 3 In Wiggins v. Smith, the United States Supreme Court applied the well established standards of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1994):

“An ineffective assistance claim has two components: A petitioner must show that counsel’s performance was deficient, and that the deficiency prejudiced the defense.”

Wiggins, 539 U.S. at-, 123 S.Ct. at 2535. We utilized the same test in the present case. Grant, 2002 OK-CR 36, ¶ 81, 58 P.3d at 799.

¶ 4 Wiggins illustrates the need to partake in reasonable investigation before making strategic choices, because

“strategic choices made after 'thorough investigation of law and facts ... are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.”

Wiggins, 539 U.S. at —, 123 S.Ct at 2535, citing Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066. ’

¶ 5 Wiggins claimed, “that his attorneys’ failure to investigate his' background and present mitigating evidence of his unfortunate life history at his capital sentencing pi’oceedings violated his Sixth Amendment right to counsel.” Wiggins, 539 U.S. at —, 123 S.Ct at 2531. The Supreme Court in reversing Wiggins’ conviction relied on well established law that “[I]n an ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” Wiggins, 539 U.S. at —, 123 S.Ct at 2535.

¶ 6 The facts and circumstances of Wiggins are diametrically opposed to the facts and circumstances of Grant’s case. Wiggins had no prior criminal history, and at trial, counsel introduced no evidence of Wiggins’ life history or family background. Counsel in Wiggins completely faked to discover that,

“Wiggins experienced severe privation and abuse in the first six years of his life while in the custody of his alcoholic, absentee mother. He suffered physical torment, sexual molestation, and repeated rape during his subsequent years in foster care.”

Wiggins, 539 U.S. at —, 123 S.Ct at 2542. In Grant’s case, counsel allowed Grant to testify about his early childhood, and Grant specifically told counsel that he did not want his family contacted because he basically had no contact with his family since the age of fifteen (he was thirty-seven at the time of this crime). Grant testified during the penalty stage of the proceedings.

¶ 7 Grant testified that he had five brothers and. three sisters and that he was somewhere in the middle according to birth order. He testified that he first left, home when he was twelve, and then at seventeen he left home for good because he was sent to prison. He had been incarcerated since that time except for a short period when he was paroled at the age of nineteen. Between the ages of twelve and seventeen he spent time in several juvenile facilities because of bad behavior.

¶ 8 During an evidentiary hearing ordered by this Court, family members testified that Grant was raised by his mother, as his father left before he was born. He was the sixth of nine children and was raised in poverty. Grant started getting into trouble by stealing. One of his sisters testified that he stole clothes and shoes for his younger siblings. Grant’s family members would have asked the jury to spare his life.

¶ 9 Grant’s childhood, unlike Wiggins’ life, was a matter of choice. Grant chose to steal at an early age. He was not abused sexually or physically by those in authority over him. His continued choices to commit criminal acts resulted in his long-term incarceration. It was during this incarceration that he committed the murder of Gay L. 'Carter, a kitchen supervisor for the Oklahoma Department of Corrections.

¶ 10 Trial counsel concluded that having family members testify during the punishment stage would be counterproductive, because they had not had much contact with him due to his long term incarceration. He was concerned about the family testifying how much they cared for Appellant, when, in fact, they had rarely visited Appellant while he was in prison. The testimony at the evidentiary hearing revealed that Grant’s mother visited him once a year for an hour each time. His father testified that he never visited Grant in prison. His brothers and sisters testified that they had visited him no more than five times. Grant’s uncle, Clayton Black, testified that he had visited him at least once or twice each year, usually visiting with Grant’s mother. One family member testified that they knew Grant was charged with murder, but they never took it upon themselves to determine the existence of or timing of a trial.

¶ 11 In our original opinion, we found that counsel’s failure to contact family members did not fall “outside the wide range of professionally competent assistance.” Grant, 2002 OK CR 36, ¶ 87, 58 P.3d at 800. Furthermore, we held that Grant could not show that the failure to present the testimony of family members rendered his sentence unreliable. Grant, 2002 OK CR 36, ¶ 88, 58 P.3d at 800. Grant could not show that he was prejudiced by counsel’s conduct. Id. While counsel could have contacted family members through Grant’s prison records, and did ask an investigator to attempt to contact the family, no contact was ever made.

¶ 12 The Wiggins case does not change our decision. Counsel’s decision in this case was driven by Grant’s own request to not have his family contacted. See Strickland, 466 U.S. at 691, 104 S.Ct. at 2066; Romano v. Gibson, 239 F.3d 1156, 1181 (10th Cir.2001). Counsel’s concern that the family members’ testimony showing care for Grant would be overshadowed by their actions of limited contact during the past twenty years of his life was a valid concern. Counsel’s decision was directed by his client. His knowledge of Grant’s early life, through conversations with Grant, would not have been enhanced by interviewing family members. The Court in Wiggins emphasized, “Strickland does not require counsel to investigate every conceivable line of mitigation evidence no matter how unlikely the effort would be to assist the defendant at sentencing.” Wiggins, 539 U.S. at — , 123 S.Ct. at 2541. Counsel in this case followed the directions of his client and made a reasonable decision that investigation into Grant’s family history by contacting family members was unnecessary. Strickland, 466 U.S. at 691, 104 S.Ct. at 2066.

¶ 13 There are probably only few death penalty cases where counsel would not be ineffective for a failure to undertake an independent investigation of a defendant’s early life by contacting family members. This is one of them. The factors that make counsel’s independent investigation unnecessary was Grant’s own desire to not have his family contacted and his twenty years of incarceration prior to this crime.

¶14 Even if counsel’s failure to independently contact Grant’s family fell below acceptable standards of conduct, his conduct did not result in prejudice in this case. There is no indication that had the jury been confronted with the testimony of family members the result of this proceeding would have been different. The jury found the existence of three aggravating circumstances. Grant was incarcerated for committing violent crimes. He violently and repeatedly stabbed a civilian kitchen worker while he was serving a sentence for a violent crime. The testimony of Grant’s family members would not have swayed the jury from imposing the death penalty.

CONCLUSION

¶ 15 We find that counsel’s failure to undertake independent investigation into Grant’s childhood, by contacting family members, was reasonable. Furthermore, we find that, had the family members been contacted and been allowed to testify at trial, the outcome of this case would not have been different. No relief is required in this case based on our application of Wiggins to this case.

JOHNSON, P.J.; concurs in results.

LUMPKIN, J.; specially concurs.

CHAPEL, J.: dissents.

STRUBHAR, J.: concurs.

LUMPKIN, J:

Special Concur.

¶ 1 I concur in Judge Lile’s opinion, but write separately to emphasize several distinguishing differences between the facts of this case and those presented in Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). In addition, I also believe it is important to refresh our memories that it is the client’s case, not the lawyer’s.

¶2 In the direct appeal of this case, we remanded for an evidentiary hearing on the issue of ineffective assistance of trial counsel on this very issue. As our subsequent opinion reflects, trial counsel consulted with the defendant and the defendant was an integral part of the strategic decision making process regarding mitigation evidence. See Grant v. State, 2002 OK CR 36, ¶ 76-78, 58 P.3d 783, 799.

¶ 3 As reflected in our opinion, trial counsel testified there were two main reasons family members were not called to testify as mitigation witnesses:

First, Grant told him that he basically had no contact with his family since he left home at the age of fifteen and was incarcerated since the age of nineteen. Grant indicated that he did not know where his family was located other than somewhere in Oregon. Grant told him that he didn’t want his family involved in the proceedings.

Grant, 2002 OK CR 36, ¶ 76, 58 P.3d at 799.

Secondly, Bowen testified that because the family members had no close contact with Grant in some twenty years, their testimony would be of little help. He felt like if they testified about their relationship, they would be vulnerable on cross-examination because they hadn’t had any contact with him since he had been incarcerated.

Grant, 2002 OK CR 36, ¶ 77, 58 P.3d at 799. Nevertheless, trial counsel still had investigators try to contact family members, but they were unable to do so prior to trial.

¶ 4 Upon reviewing the testimony presented at that evidentiary hearing, we held, “Grant’s wish to exclude his family from the proceedings controlled trial counsel’s actions in this ease”. Grant, 2002 OK CR 36, ¶ 84, 58 P.3d at 800.

¶ 5 A very important factor not addressed in Wiggins (and overlooked by the dissent in this case) is that a competent client is in charge of his or her case, not the lawyer. See Rule 1.2, Oklahoma Rules of Professional Conduct, Title 22, Ch. 18, App. (2003). That factor was a crucial part of our analysis and holding in the direct appeal opinion.

¶ 6 When a lawyer is hired or appointed to represent a client in a criminal proceeding— even in a capital case — that lawyer does not “own” the case. The lawyer has a responsibility to advise, inform, and consult with the client. Meanwhile, the client has the right to be involved in the decision process that will affect his or her life. Indeed, as we made clear in Wallace v. State, 1997 OK CR 18, ¶¶ 6, 27, 935 P.2d 366, 370, 376, a defendant may even waive the right to present any mitigating evidence when fully informed as to that right and the effect of the waiver.

¶ 7 In Nelson v. State, 2001 OK CR 4, 21 P.3d 55, we were presented with a situation where the defendant initially pled not guilty by reason of insanity to a charge, but later decided to amend his plea. Counsel argued during sentencing for the judge to consider the mental problems in his sentencing decision. In addressing a challenge to counsel’s effectiveness we held:

However, Appellant’s counsel was ethically bound to accept his competent client’s decision regarding the plea to be entered. This is clear from Rule 1.2(a) of the Rules of Professional Conduct. Indeed, the committee comments to Rule 1.2 note “[t]he client has ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law....”

Nelson, 2001 OK CR 4, ¶ 29, 21 P.3d at 60; see also, Alvord v. Wainwright, 725 F.2d 1282, 1289 (11th Cir.1984), cert. denied, 469 U.S. 956, 105 S.Ct. 355, 83 L.Ed.2d 291 (1984)(“In light of Alvord’s refusal to assert the insanity defense, although earnestly counseled by his defense attorney to do so, we conclude that Meyers rendered competent assistance ... In addition, given Al-vord’s competency, Meyers was ethically bound to follow his client’s wishes. See, Foster v. Strickland, 707 F.2d 1339, 1343 (11th Cir.1983).”)

¶ 8 This analysis and holdings are fully consistent with the U.S. Supreme Court’s seminal decision in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In Faretta the Court held, “The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense”. 422 U.S. at 819, 95 S.Ct. 2525.

¶ 9 The record in this case reveals the defendant was personally involved in the decision making process of what witnesses to call during the trial’s punishment phase. That decision is supported by logical, credible reasons. Additionally, regardless of the defendant’s directions, the trial attorney had his investigator continue to seek out family members up until the time of the sentencing phase of trial. This is not the same inactivity found in Wiggins. Rather, this record reveals a competent client directing counsel as he has the constitutional right to do under Faretta.

¶ 10 The Wiggins decision should not be misapplied or misconstrued in a way that dilutes the use of “trial strategy” when dealing with cases of this type at the appellate level. Granted, Wiggins, in analyzing Strickland and the issue of ineffective assistance relating to mitigation efforts, states that “Strickland does not establish that a cursory investigation automatically justifies a tactical decision with respect to sentencing strategy. Rather, a reviewing court must consider the reasonableness of the investigation said to support that strategy.” Wiggins, 539 U.S. at -, 123 S.Ct. at 2538. However, as previously stated, Wiggins does not factor in the input and direction of a competent client in the decision making process.

¶ 11 In Roberts v. State, 1996 OK CR 7, ¶ 29, 910 P.2d 1071, 1081, we addressed the situation that occurs when a defendant has been cooperative throughout the trial and the attorney has no reason to believe he has not received necessary information from his client:

Concerning mitigating evidence, counsel cannot be ineffective for failing to more fully develop Petitioner’s life history, as Petitioner has not shown he presented such information to his attorney. Courts have historically held a defendant bears some burden of supplying counsel with necessary information within his knowledge. See United States v. King, 936 F.2d 477, 480 (10th Cir.), cert. denied, 502 U.S. 1008, 112 S.Ct. 647, 116 L.Ed.2d 664 (1991)....”

See also, Brown v. State, 1997 OK CR 1, 933 P.2d 316, 321-322.

¶ 12 The punishment phase of a capital case is not merely a jump through the hoops, mark off the check list process. What may be appropriate and helpful in one case can be harmful in another. It appears there is an attitude/perspective developing from those who are far removed from the dynamics of the courtroom that a certain number of experts and family members must be presented in every case in order for counsel to be effective. That is an unrealistic view that disregards the fact it is the defendant/client, not the attorney, who has the ultimate ability to make those choices, upon consultation with counsel. Moreover, this view has created a cottage industry for minimally relevant experts from every persuasion, some with very questionable credentials.

¶ 13 In this particular case, our remanded evidentiary hearing revealed that defendant left home at the age of fifteen and has been incarcerated from the time he was nineteen. During this time — more than twenty years— family members had minimal contact with him. Trial counsel related his concerns about putting family members on the stand to say how much they loved and cared for defendant when those same family members rarely, if ever, visited him in prison. Therefore, it was reasonable and logical for counsel to follow his client’s directions to rely on the defendant’s testimony as to his childhood, together with the psychologist’s testimony.

¶ 14 To further put the facts into perspective, it must be remembered that the defendant was serving a total of one-hundred thirty (130) years for four separate armed robberies and had been in prison for about twenty years when he “savagely and repeatedly stabbed Gay Carter, a food service supervisor at the Connor Correction Center in Hominy, Oklahoma” on November 13, 1998. Grant, 2002 OK CR 36, ¶ 2, 58 P.3d at 789.

¶ 15 While defendant may have had a bad childhood, it had nothing to do with the death of Gay Carter. Periodic visits from family members would have had no impact on this jury’s decision. Twenty years of structured incarceration has not been sufficient to ameliorate the defendant’s violent tendencies and that is what impacts the average juror as they view the savagery of this attack on an unarmed female food service worker. The defendant was competent and participated in the strategic decisions with counsel. Those decisions are supported by the record and distinguish the facts of this case from Wiggins.

¶ 16 I concur the judgment and sentence should be affirmed.

CHAPEL, Judge,

Dissenting.

¶ 1 Some people just can’t take a hint. On October 6, 2003, the Supreme Court of the United States responded to John Marion Grant’s petition for a writ of certiorari, arising from this Court’s rejection of his direct appeal from his capital conviction, by granting the petition, summarily vacating the judgment of this Court, and remanding the case to this Court, “for further consideration in light of Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527,156 L.Ed.2d 471 (2003).” In a capital case like Grant’s — with further extensive review through the federal habeas corpus process inevitably following the direct appeal decision in this Court, and with a subsequent opportunity for the United States Supreme Court to intervene, through certio-rari review of the decision of the United States Court of Appeals for the Tenth Circuit — intervention by the Supreme Court at this stage of the appellate process is rare and remarkable. One would think that this Court would issue a careful, thoughtful response. That has not happened.

¶ 2 The Supreme Court has sent this Court a message, and its reference to the Wiggins decision would seem to make interpretation of this message a rather simple task. Yet today’s Court majority chooses to ignore the message, through a pinched and shallow interpretation of Wiggins and a determination to maintain its earlier ruling. I believe that the Court’s current actions will merely serve to delay, rather than to prevent, an eventual re-trial of the punishment stage of Grant’s trial, thereby causing a pointless waste of monetary and human resources and an unnecessary extension of the stress and anxiety that accompanies all capital cases, for all of the persons affected by them.

¶ 3 I dissented from this Court’s original decision in a published opinion. Although I agreed with the Court that the first-degree murder conviction in Grant’s case should be affirmed, I concluded that Grant’s death sentence should be overturned for two reasons: (1) his trial counsel failed to adequately investigate and present substantial mitigating evidence about his childhood and family history; and (2) the trial court erroneously refused to excuse a particular juror, resulting in the prejudicial denial of one of Grant’s statutory peremptory challenges.

¶ 4 The Supreme Court’s reference to Wiggins v. Smith makes clear that it is the second-stage ineffective assistance of counsel claim that our Court is being instructed to reconsider. In Wiggins, the Supreme Court found that Kevin Wiggins should be given federal habeas corpus relief, because “his attorneys’ failure to investigate his background and present mitigating evidence of his unfortunate life history at his capital sentencing proceedings violated his Sixth Amendment right to counsel.” The Wiggins Court concluded that this failure constituted ineffective assistance of counsel. There can be no doubt that the legal issue before the Supreme Court in Wiggins is the same one now before this Court.

¶ 5 Yet today’s majority gives only partial, passing recognition to the legal principle that forms the foundation for the Supreme Court’s ruling in Wiggins (and was likewise the basis of my earlier dissent). This principle for evaluating attorney performance was first articulated in Strickland v. Washington., the Supreme Court’s 1984 watershed decision that articulated the standards by which all ineffective assistance of counsel claims are evaluated. The Strickland Court recognized that when evaluating the performance of defense counsel:

[Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.

After recognizing this basic principle and quoting the first sentence of this passage from Strickland, today’s majority opinion simply goes on to say, “The facts and circumstances of Wiggins’ case are diametrically opposed to the facts and circumstances of Grant’s case.” Surely the Supreme Court hoped that this Court would do more than simply point out factual differences between these two cases.

¶ 6 Within its attempt to distinguish Grant’s case, today’s Court majority makes a factual claim that appears to be the real basis of its decision, but which simply cannot be accepted at face value. The Court asserts, “Grant specifically told counsel that he did not want his family contacted because he basically had no contact with his family since the age of fifteen....” The Court also writes that trial counsel’s failure to contact members of Grant’s family “was driven by Grant’s own request not to have his family contacted.” Hence the majority apparently concludes, more vehemently than it did in its original opinion, that Grant waived the presentation of mitigating evidence from members of his family.

¶ 7 On January 4, 2002, this Court remanded Grant’s case to the district court for an evidentiary hearing on Grant’s second-stage ineffective assistance of counsel claim. Within our remand order we directed the district court to determine whether Grant waived his right to present mitigating evidence from his family, and if so, whether the waiver was knowing and intelligent. The evidentiary hearing was held on February 22, 2002, and the district court filed its findings of fact and conclusions of law regarding the remanded issue on April 3, 2002.

¶ 8 Grant’s trial counsel testified at the evidentiary hearing that Grant “indicated ... that he really didn’t want his family to be involved” and that family testimony “was not something that [Grant] was interested in pursuing.” On the other hand, trial counsel testified that he was aware that a defendant’s waiver of his right to present mitigating evidence during the second stage of his capital trial is only valid if the defendant is adequately advised of and understands the nature of mitigating evidence and its role in the capital sentencing process. Yet trial counsel acknowledged that he had no specific recollection of discussing with Grant (1) what the second stage of a capital trial was about, (2) the potential role and importance of family testimony in a capital trial, or (3) the fact that family members could be important sources of mitigating information, even if they did not testify. Trial counsel likewise testified that he was familiar with the requirements for a waiver hearing, in the event that a defendant desired to waive the presentation of mitigating evidence, but that he never considered seeking such a hearing in Grant’s case.

¶ 9 After reviewing the totality of the evidence presented at the evidentiary hearing, the district court found that Grant did not waive the presentation of mitigating evidence from members of his family: “[I]t must be concluded that defendant [Grant] did not specifically waive the presentation of this testimony.” This Court has repeatedly held that such factual findings are entitled to “strong deference,” so long as they are supported by the record in the case. And the record in Grant’s case does indeed strongly support the trial court’s “no waiver” finding of fact. Hence the majority cannot rely on its own waiver finding to justify its conclusion that counsel’s failure to seek out and develop mitigating evidence from Grant’s family was reasonable.

¶ 10 The majority also attempts to show that Grant’s claim of ineffective assistance is less persuasive than that of Wiggins based upon the following assertions: (1) Wiggins had no prior criminal history, while Grant was incarcerated for prior robberies at the time he killed Gay Carter; (2) no evidence about Wiggins’ life history and family background was presented at his capital sentencing, while Grant’s counsel “allowed Grant to testify about his early childhood”; and (3) Wiggins was horribly victimized as a child, through severe deprivation and physical and sexual abuse, while Grant was basically just a poor kid who chose a life of crime.

¶ 11 It is true that Wiggins had no prior convictions at the time he killed seventy-seven year-old Florence Lacs. It is also true that Grant was already serving a total of 130 years in armed-robbery prison sentences at the time he killed Gay Carter, and that this factor makes the prejudice prong of the ineffective assistance test more difficult for Grant to meet (compared to Wiggins). However, it likewise makes the performance prong of the ineffective assistance test easier for Grant to meet (relative to Wiggins), since the aggravating factors of Grant’s criminal history and current incarceration made the need for significant mitigating evidence in his case more critical. Hence these considerations should have spurred Grant’s counsel to pursue any such evidence even more diligently-

¶ 12 As I noted in my original dissent, when faced with a client who is obviously guilty of first-degree murder, and who committed this crime while already serving prison sentences for prior violent offenses, the essential task of defense counsel should have been obvious: “give the jury a reason to spare his life.” The strategic options open to Grant’s counsel were extremely limited. He could not realistically contest Grant’s guilt, nor did Grant’s recent life history (of incarceration) offer much in the way of mitigating evidence. Hence defense counsel’s “choice” to not fully pursue the strategy of at least discovering what Grant’s childhood and early life were like simply cannot be cloaked in the mantra of a “reasonable strategic decision.”

¶ 13 The record suggests that rather than deciding not to pursue mitigating evidence about Grant’s early life from members of his family, Grant’s counsel recognized that such information was relevant and potentially helpful, he just never accomplished the task of actually obtaining it. As the Wiggins Court noted in regard to defense counsel in that case, the claim that Grant’s counsel made a strategic decision not to diligently pursue mitigating family evidence “resembles more a post-hoc rationalization of counsel’s conduct than an accurate description of [his] deliberations prior to sentencing.”

¶ 14 As the Wiggins Court acknowledged, defense counsel in that case did pursue two other strategies during Wiggins’ capital sentencing: (1) attempting to convince the jury that Wiggins was not responsible for the murder; and (2) noting Wiggins’ lack of prior convictions. Nevertheless, the Supreme Court concluded that these strategies did not exclude a further strategy of presenting mitigating evidence about Wiggins’ tragic childhood, and more importantly, that these alternative strategies certainly could not explain defense counsel’s failure to fully investigate and discover this mitigating evidence. Since Grant’s counsel did not even have any similar alternative strategies available to him, his failure to diligently pursue the family evidence is even less justifiable. And as the Supreme Court emphasized in Wiggins, counsel’s failure to first adequately investigate and uncover this evidence made his “decision” not to present this (undiscovered) evidence during Grant’s trial even less deserving of deference as a “reasonable strategic decision.”

¶ 15 The second ground upon which today’s Court majority attempts to distinguish the current case from Wiggins is the factual claim that Grant actually did “testify about his early childhood,” while no such testimony was presented in Wiggins’ case. Today’s majority continues to insist that all of the information that came out at the evidentiary hearing about the bleak circumstances of Grant’s childhood is pretty much equivalent to Grant’s trial testimony that he had five brothers and three sisters, and he was “somewhere in between.” This is quite a stretch. Furthermore, it is hard to understand how the Court majority could categorize Grant’s trial testimony about how he left home and began getting into serious trouble as an adolescent as information about his “early childhood,” or how this negative information could possibly have served as an adequate substitute for the very sympathetic facts about Grant’s earliest years of life. As far as actual presentation of mitigating evidence about the defendant’s childhood, the cases of Grant and Wiggins are equivalent: no such evidence was present to the juries in either ease.

¶ 16 Finally, I take up the Court’s third proffered reason for distinguishing Grant’s case from that of Wiggins, which amounts to a claim that Wiggins is just more deserving of relief than Grant, because Wiggins had a worse childhood and Grant is a worse person. In attempting to make this argument, today’s majority makes a factual claim that is radio-talk-showesque, especially from the perspective of anyone familiar with the horrifying realities of childhood abuse, neglect, and exploitation of any kind. The claim: it is the child’s fault. The majority writes, “Grant’s childhood, unlike Wiggins’ life[,] was a matter of choice.” Wow.

¶17 Grant chose to be abandoned by his father just after he was born; to be the sixth of nine children born to a mother who did not have the means or the wherewithal to care for her huge family; to never have a father figure living in his home; to be raised largely by his older sisters; to be “dirt poor,” without indoor plumbing or a family car; to live in run-down, dangerous, and crime-ridden neighborhoods; to be bused to schools far from his home; etc. The majority apparently concludes that because the record does not suggest that Grant was “abused sexually or physically by those in authority over him” (as Wiggins was), and because Grant “chose to steal at an early age,” his entire depressing childhood was his own “choice,” and really not particularly mitigating at all.

¶ 18 The majority also apparently sees nothing mitigating in the testimony of Grant’s sister that his early thefts involved getting clothing and shoes for his younger siblings. It strikes me that Grant has run across a remarkably unsympathetic Court, but I am not so sure that a jury would be so unwilling to see Grant’s sad childhood for what it was and to see the mitigating impact of this personal history. The question is not whether Grant’s background, family history, and some of his positive traits could excuse his cruel murder of Gay Carter. They certainly could not. The question is whether there is a “reasonable probability” that at least one juror — and it would only take one — could be sufficiently moved by the circumstances of Grant’s life to choose to spare that life from execution. I continue to believe that there is enough of a chance that this could happen that we should leave it to an actual jury, provided with the array of mitigating evidence that Grant’s original jury never heard, to make this call. This Court should not be making this life and death determination.

¶ 19 I continue to dissent from this Court’s unwillingness to provide Grant with a new capital sentencing, before a jury that is fully informed about the circumstances of the life whose fate they must determine.

      . Oklahoma Court of Criminal Appeals Case No. PCD-2002-347.

      . We reviewed supplemental briefs filed by the parties in this case; Appellant's brief filed on ■ December 22, 2003 and Appellee’s modified brief filed on February 4, 2004. ■

      . See Grant v. Oklahoma, 2002 OK CR 36, 58 P.3d 783.

        . See Grant v. Oklahoma,-U.S.-, 124 S.Ct. 162, 157 L.Ed.2d 12 (2003).

      . And for what it's worth, today’s special concurrence does nothing to fill this void.

      . See Grant v. State, 2002 OK CR 36, 58 P.3d 783, 801-13 (2003) (Chapel, J., dissenting).

      . Id. at 801, 813. I noted that "there was never any doubt that it was Grant who killed [Gay] Carter,” that Grant killed Carter by "repeatedly and brutally stabbing her to death," and that Grant’s insanity defense "had no realistic chance for success at trial.” Id. at 801.

      . I continue to maintain that both of these trial errors, considered both individually and cumulatively, necessitate a re-sentencing in Grant's case. See id. at 813.

      . See Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). Consequently, the juror removal/peremptory challenge claim, see Grant, 58 P.3d. at 809-13, is not discussed further herein. My analysis of Grant's second-stage ineffective assistance of counsel claim, on the other hand, formed the bulk of my original dissent, and is incorporated herein by reference. See id. at 801-09.

      . Wiggins, 539 U.S. at-, 123 S.Ct. at 2531.

      . Id. at-, 123 S.Ct. at 2543-44.

      . It should be noted, however, that the habeas context of Wiggins actually made the Supreme Court’s review more constrained than that of this Court. Wiggins came before the Court in the context of a habeas corpus action, after both the Maryland Court of Appeals and the United States Court of Appeals for the Fourth Circuit rejected Wiggins’ ineffective assistance claim. Thus the Supreme Court could only grant habeas relief to Wiggins upon a finding that the rejection of his claim by the Maryland Court of Appeals was not only wrong, it was unreasonable. See id. at --•, 123 S.Ct. at 2534-35 (explaining habeas standards of 28 U.S.C. § 2254(d), as interpreted in Williams v. Taylor, 529 U.S. 362, 409-11, 120 S.Ct. 1495, 1521-22, 146 L.Ed.2d 389 (2000), to require finding that state court decision was "objectively unreasonable,” in addition to being wrong).

      . 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

      . Id. at 690-91, 104 S.Ct. at 2066. The Supreme Court quoted this portion of Strickland in Wiggins. See Wiggins, 539 U.S. at --, -, 123 S.Ct. at 2535, 2541; and I likewise quoted from this passage in my original dissent. See Grant, 58 P.3d at 803 n. 6.

      . See Court Opinion, p.179 (quoting first sentence from Strickland quotation supra).

      . Id. Today’s special concurrence does the same thing. See Special Concurrence (Lumpkin, J.), p. 178 ("[I] write separately to emphasize several distinguishing differences between the facts of this case and those presented in Wiggins ...."). The special concurrence, however, has a particular ax to grind, i.e., the seemingly obvious claim that "it is the client’s case, not the lawyer’s.” Id. Although the special concurrence gives passing recognition to the lawyer's responsibility "to advise, inform, and consult with the client,” id. at 179-80, the gist of the opinion is that an attorney should just follow his client's initially-stated preferences, without worrying much about advising the client about his rights, the risks of a particular approach, how trials (and particularly capital trials) are conducted, what is most likely in the client's best interests, etc. The case of Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), cited by the special concurrence, did indeed give Grant the right to represent himself. Grant wisely chose not to invoke this right, however, and instead relied upon his separate right to the assistance of counsel, which unfortunately, he did not adequately receive. The fact that Grant met the minimal legal standard of being a "competent client” — a description that appears repeatedly in the special concurrence — does not mean that he was equipped or adequately informed to make a reasonable and intelligent determination regarding the presentation of particular mitigating evidence in his case. The record does not support the claim that he actually made such a decision, nor would our own standards find that any such waiver by Grant could be upheld as being informed and intelligently made. See Wallace v. State, 1995 OK CR 19, 893 P.2d 504, 512-13, cert. denied, 516 U.S. 888, 116 S.Ct. 232, 133 L.Ed.2d 160 (1995).

      . And as my later analysis points out, the factual differences between the two cases can easily be interpreted to suggest that Grant is more deserving of capital sentencing relief than Wiggins, rather than less deserving, as today’s majority concludes.

      . Court Opinion, p. 180.

      . Id. at 180-81. The Court later asserts that Grant’s counsel’s decision not to put on family testimony "was directed by his client" and states that "[cjounsel in this case followed the directions of his client.” Id. at 181.

      . Although the Court's original opinion referred to "Grant's wish to exclude his family from the proceedings,” it did not explicitly conclude that Grant specifically told his counsel not to contact his family. See Grant, 58 P.3d at 800. Furthermore, the asserted rationale (from trial counsel) for not involving Grant’s family {i.e., the lack of contact with the family) was not actually attributed to Grant himself, see id., as it is now. Today's special concurrence attempts to strengthen the claim that Grant "waived” the presentation of mitigating family evidence simply by restating the claim repeatedly, though without support from the record. The lack of evidentiary support for this claim is discussed infra.

      . In order to grant this evidentiary hearing, this Court was required to find and did find that Grant had shown "by clear and convincing evidence that there is a strong possibility his trial counsel was ineffective for failing to develop and present mitigating evidence from members of [his] family.” See Rule 3.11 (B)(3)(b)(i), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18 App. (2002) (articulating standard applied by this Court).

      . The Court majority's statement, quoted supra, about Grant specifically telling his counsel not to contact his family is not supported by any evidence in the record. It should likewise be noted that today's special concurrence similarly prefers to "summarize” and recast defense counsel's actual testimony, about Grant "indicat[ing] ... that he really didn’t want his family to be involved," into a stronger, more decisive form than that actually given by counsel. See, e.g., Special Concurrence, p. 179 ("[T]rial counsel consulted with the defendant and the defendant was an integral part of the strategic decision making process regarding mitigation evidence.”); id. at 180-81 (referring to Grant's "directions” to his counsel, which defense counsel "followed," to rely on Grant’s own testimony regarding his childhood). Nothing in the record supports the current claims that Grant was actually "directing” his counsel regarding the presentation of particular mitigating evidence.

      . See Wallace, 893 P.2d at 510-13. This Court noted in Wallace, "It is beyond question mitigating evidence is critical to the sentencer in a capital case." Id. at 510.

      . Hence the record in this case could not possibly support a finding that any waiver by Grant was "knowing and intelligent." See id. at 512. The trial court did not even reach this secondary issue, since it concluded that no waiver occurred in Grant’s case.

      . See id. at 512-13 (establishing district court procedure for determining whether capital defendant who desires to waive presentation of mitigating evidence is competent and is making a knowing and intelligent waiver decision). This procedure was not followed in Grant’s case, and the record contains no evidence of any statements to the trial court regarding Grant's desire to waive the presentation of mitigating evidence.

      . See Rule 3.11 (B)(3)(b)(iv). Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18 App. (2002); see also Glossip v. State, 2001 OK CR 21, 29 P.3d 597, 602 ("This Court will give the trial court's findings strong deference if supported by the record, but we shall determine the ultimate issue of whether trial counsel was ineffective.") (citing Rule 3.11 (B)(3)(b)(iv)); see also Wood v. State, 1998 OK CR 19, 959 P.2d 1, 17; Humphreys v. State, 1997 OK CR 59, 947 P.2d 565, 577, cert. denied, 524 U.S. 930, 118 S.Ct. 2329, 141 L.Ed.2d 702 (1998).

      . In addition to the facts noted above, the following evidentiary hearing evidence also supports the trial court’s finding that no waiver occurred: (1) trial counsel and his investigators acknowledged having conversations with Grant about his family members and where they could be found; (2) counsel and the investigators indicated that Grant provided the family contact information that he had; and (3) during the trial Grant gave his counsel a letter from his mother, bearing a local return address. Nevertheless, the record is clear that not a single member of Grant’s family was ever contacted regarding his trial.

      . Despite the Court's apparent reliance on its own finding of waiver, the Court never actually finds (in today’s opinion or its prior opinion) that the trial court's contraty finding is either erroneous or not supported by the record. Today's special concurrence likewise implicitly finds that Grant "waived” the presentation of evidence about his childhood and family history — by "directing" his counsel not to pursue or present such evidence — yet never grapples with or even mentions the trial court's specific finding to the contrary.

      . See Court Opinion, p. 180.

      . See id. at 180.

      . The Maryland Court of Appeals wrote the following regarding the discovery of Wiggins’ victim, who was found dead in her own bathtub:
      She was lying on her side, half covered by cloudy water. It appeared that a household cleaner and a bug spray had been poured or sprayed on her. She was wearing a white blouse and a blue skirt, but had on no underwear. The skirt had been raised to her waist. The apartment had been ransacked.

        Wiggins v. State, 352 Md. 580, 724 A.2d 1, 4 (1999). The medical examiner determined that the cause of death was drowning. Id. Wiggins, who had been working as a painter in the victim’s apartment building, was seen talking to Lacs on the evening she disappeared. A few hours later, Wiggins was driving Lacs' car to the home of his girlfriend, and together they went shopping over the next two days using Lacs' credit cards. They later pawned one of her rings and were eventually arrested, still driving Lacs’ car. Id. at 4-5.

      . Grant, 58 P.3d at 802.

      . It should be noted in this regard that the trial court found that all nine of Grant's family members who testified at the evidentiary hearing "were findable and would have testified at trial if they had been asked.” And today's Court majority acknowledges that "[wjhile counsel could have contacted family members through Grant's prison records, ... no contact was ever made.” See Court Opinion, p. 180-8.1.

      . Wiggins, 539 U.S. at-, 123 S.Ct. at 2538. The fact that trial counsel gave a reason for his purported "decision” not to put on evidence from members of Grant's family — namely, that the family had not been in substantial contact with Grant for a long time, making any claims about how much family members cared for him seem specious — does not mean that this Court must accept this testimony unquestioningly or, even if the reason asserted is sincere, that it should be considered "reasonable.” The Wiggins Court did not fully accept the accuracy of defense counsel's after-the-fact testimony in that case, about the extent of his knowledge of Wiggins' life history at the time of trial. See id.-, 123 S.Ct. at 2541 (speculating that rather than actually "lying,” defense counsel could be suffering from "a mistaken memory shaped by the passage of time"). Similarly, the testimony of Grant's counsel about his "decision” not to put on any family testimony seems inconsistent with his separate testimony about the halfhearted and faltering attempts he did make (through investigators) to locate and interview members of Grant’s family. And the claim in today’s special concurrence that trial counsel "had his investigator continue to seek out family members up until the time of the sentencing phase of trial” — as if both trial counsel and the investigator diligently sought out family members, but were simply confounded by the enormity of the task, see Special Concurrence, p. 180 — is not supported by the record in this case. In fact, the trial court specifically found that all of the family members were "findable,” through Grant's prison records.
      Furthermore, even actual strategic decisions by counsel are always subject to evaluation for their "reasonableness”; and given the circumstances of Grant’s case, a decision not to diligently pursue family and life history evidence in his case simply could not be evaluated as "reasonable.” See Grant, 58 P.3d at 802-06 (my original dissent). The fact that members of Grant's family might have had a hard time claiming that they had remained "close” to Grant through the years, does not change the fact that these individuals possessed powerful, critical evidence about the difficulties and deprivation of Grant's early years. Today’s special concurrence belittles the impact of family members pledging love and pleading for mercy, see Special Concurrence, pp. 180-81, while totally ignoring their crucial role as fact witnesses to Grant’s childhood — a kind of tunnel vision similar to that of defense counsel.

      . Wiggins, 539 U.S. at-, 123 S.Ct. at 2533.

      . Id. at --, 123 S.Ct. at 2541-43.

      . Id. at-, 123 S.Ct. at 2541 ("We base our conclusion on the much more limited principle that 'strategic choices made after less than complete investigation are reasonable' only to the extent that reasonable professional judgments support the limitations on investigation.’ ") (quoting Strickland). I conclude in the current case, as the Wiggins majority did in that case, that Grant’s counsel’s "incomplete investigation was the result of inattention, not reasoned strategic judgment,” id. at---, 123 S.Ct. at 2542, and that counsel was "not in a position to make a reasonable strategic choice” about the presentation of family testimony in Grant's case. Id. at --, 123 S.Ct. at 2543.

      . See Court Opinion, p. 180.

      . In its original opinion, the Court concluded that all of this family testimony "would have repeated Grant's own account of his childhood.” Grant, 58 P.3d at 800. The Court’s willingness to equate Grant’s testimony about the number of children in his family with detailed evidence about the circumstances of his childhood is also evidenced in the Court's current assertion that defense counsel's "knowledge of Grant’s early life ... would not have been enhanced by interviewing family members.” See Court Opinion, p. 181.

      . See Court Opinion, p. 180.

      . Id. at 180.

      . See id. at 180.

      . The cynicism of this Court regarding Grant's case is also revealed in the following statement: "There are probably only [sic] few death penalty cases where counsel would not be ineffective for a failure to undertake an independent investigation of a defendant’s early life by contacting family members. This is one of them.” Id. at 181. How convenient.

        .See Wiggins, 539 U.S. at -, 123 S.Ct. at 2543 ("Had the jury been able to place petitioner's excruciating life history on the mitigating side of the scale, there is a reasonable probability that at least one juror would have struck a different balance.”).


source: Caselaw Access Project

author: TOM COLBERT, Chief Judge.

license: Public Domain

text:
    2004 OK CIV APP 59
    Shawn M. HORVAT, Appellant, v. STATE of Oklahoma, ex rel. the DEPARTMENT OF CORRECTIONS, and State of Oklahoma, ex rel. the Merit Protection Commission, Appellees.
    No. 99,976.
    Court of Civil Appeals of Oklahoma, Division No. 2.
    April 13, 2004.

      Stanley M. Ward, Woodrow K. Glass, Scott F. Brockman, Ward & Glass, LLP, Norman, OK, for Appellant.
    Honorable Drew Edmondson, Attorney General, William F. O’Brien, Assistant Attorney General, Oklahoma City, OK, for Appel-lee Oklahoma Merit Protection Commission.
    Michael T. Oakley, Assistant General Counsel, Oklahoma City, OK, for Appellee Oklahoma Department of Corrections.
   TOM COLBERT, Chief Judge.

¶ 1 Shawn M. Horvat, an employee of the Department of Corrections (DOC), appeals from a summary judgment in favor of DOC and the Merit Protection Commission (MPC). The issue on appeal is whether MPC’s rule that an appeal is filed on the day it is received rather than on the day it is mailed violates Oklahoma’s Constitution. We conclude that it does and reverse the summary judgment.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 On September 20, 2002, Horvat, a permanent classified Correctional Security Manager, Level 1, received a letter from DOC informing him that he was to be involuntarily demoted and transferred on October 1, 2002. On October 9, 2002, Horvat sent a Notice of Appeal to MPC by certified mail. MPC received the notice on October 11, 2002, and dismissed the appeal as untimely. MPC also denied Horvat’s petition for rehearing on December 13, 2002.

¶ 3 Horvat filed a petition with the district court against MPC and DOC, seeking judicial review of MPC’s denial. He subsequently filed an amended petition to seek a declaratory judgment that MPC’s rule violated Oklahoma’s Constitution. Horvat then moved for summary judgment. The district court denied his motion and granted summary judgment in favor of MPC and DOC. Horvat appeals.

STANDARD OF REVIEW

¶4 The question presented on appeal is one of law which we review de novo. K & H Well Serv., Inc. v. Tcina, Inc., 2002 OK 62, ¶ 9, 51 P.3d 1219, 1223.

DISCUSSION

¶ 5 Permanent classified state employees have a right to appeal from discipline resulting in their discharge, suspension without pay, or demotion. 74 O.S. Supp.2003 § 840-6.5 (B). To exercise that right, they must file an appeal with MPC within 20 days of receiving notice of the discipline. Id. MPC’s executive director has the authority to determine whether the jurisdictional requirements for an appeal are met. Id. According to MPC’s rules, an appeal is “filed” when it is received. MPC Rules 455:10-1-2 & 455:10-3-2. Horvat’s appeal was deemed untimely because MPC received it on the 21st day after Horvat received notice of his demotion.

¶ 6 Horvat acknowledges that MPC’s rules were properly promulgated and that the decision to dismiss his appeal was based on a proper application of the rules, but contends the rule providing that filing occurs upon receipt is unconstitutional. He argues that the “mailbox rule,” which governs appeals to the Supreme Court, must also apply to appeals to other tribunals and commissions. The mailbox rule specifies that “[t]he date of filing or the date of mailing, as shown by the postmark affixed by the post office or other proof from the post office of the date of mailing, shall constitute the date of filing of the petition in error.” 12 O.S. Supp.2003 § 990A (B).

¶ 7 Horvat relies on article 5, section 46 of the Oklahoma Constitution, which states, “[T]he Legislature shall not ... pass any local or special law ... [rjegulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts, ... commissioners, ... or other tribunals.” Section 46- “proscribes ‘special’ laws that single out for different treatment less than an entire class of similarly situated persons or entities.” State, ex rel. Macy v. Bd. of County Comm’rs, 1999 OK 53, ¶ 14, 986 P.2d 1130, 1138. It has been interpreted to command “that general rules of appellate procedure be symmetrical and apply across the board.” Johnson v. Tony’s Town Mister Quik, 1996 OK 138, ¶ 5, 915 P.2d 355, 357.

¶ 8 The parties cite to no case law directly on point and our research has revealed none. What we are left with is Horvat’s argument that all “appellants” must be treated the same. Horvat’s appeal, however, is not a judicial appeal; it is an administrative appeal. We must determine whether that distinction is dispositive.

¶ 9 Our decision is informed by the trial judge’s well-written order on summary judgment. He observed, “[Horvat] essentially asks this court to legislate by applying the mailbox rule by judicial fiat to petitions for appeal of an agency employment action to the MPC.” The judge continued, “Though [Horvat’s] suggested rule change may have some merit, it is a matter for the MPC and/or the legislature. It is not the role of this court to require it by judicial fiat.”

¶ 10 Like the trial judge, we do not seek to legislate by judicial fiat. We are compelled, however, to apply Oklahoma’s Constitution. If an administrative rule or a statute conflicts with the Constitution, it must give way. See Macy, 1999 OK 53, n. 32, 986 P.2d 1130.

¶ 11 Although the mailbox rule enunciated in section 940A applies expressly to appeals to the Supreme Court, its common law predecessor was not so limited and was actually articulated as a rule of contract law. See Johnson, 1996 OK 138, n. 4, 915 P.2d 355. Its purpose in Oklahoma is the “elimination of the travel requirement placed upon those litigants some distance away from Oklahoma City in order to commence an appellate review proceeding.” Whitehead v. Tulsa Pub. Sch, 1998 OK .71, ¶5, 968 P.2d 1211, 1213. Without the mailbox rule, appellants who do not live within a reasonable driving distance of Oklahoma City would be at a significant disadvantage to those who do. The rule provides a method that has an “evenhanded statewide application.” Id.

¶ 12 The rule Horvat advocates for MPC would serve the same purpose. Classified employees of the State have a right to appeal their discharge, suspension without pay, or demotion. 74 O.S. Supp.2003 § 840-6.5 (B). The rule that an appeal is filed only upon its receipt by MPC creates an unnecessary burden on those employees who live away from Oklahoma City and places them at a disadvantage to those who live near the capitol. Moreover, MPC has put forth no argument that application of the mailbox rule would create any burden on its operations. See Johnson, 1996 OK 138, ¶ 5, 915 P.2d at 357.

¶ 13 MPC argues that the Supreme Court’s recent decisions on the mailbox rule should not apply here because they addressed only appellate proceedings in the Supreme Court. See id., and Whitehead, 1998 OK 71, 968 P.2d 1211. It argues that an appeal to an administrative agency is not an appellate proceeding in the nature of an appeal to the Supreme Court. We cannot agree. An appeal to MPC seeks the appellate review of a quasi-judicial decision. Moreover, section 46 speaks in very broad terms, addressing practice in “judicial proceedings or inquiry before the courts, justices of the peace, sheriffs, commissioners, arbitrators, or other tribunals.” Not only is MPC a commission, it is also a tribunal. See Okla. Sup.Ct. R. 1.75(a), 12 O.S.2001, ch. 15, app.

¶ 14 The Constitution and the spirit of the Supreme Court’s holdings in Johnson and Whitehead compel our conclusion that the mailbox rule must apply to appeals to MPC. The rule of filing only upon receipt serves no useful purpose. It does not benefit MPC and is an unnecessary burden on those state employees who do not live near Oklahoma City.

CONCLUSION

¶ 15 The trial court erred in granting summary judgment against Horvat on his claim seeking a declaration that MPC’s rule — that appeals are deemed filed only upon receipt— is unconstitutional. The rule violates Oklahoma Constitution, article 5, section 46. On remand, the trial court shall enter judgment in Horvat’s favor and direct MPC to allow his appeal to proceed.

¶ 16 REVERSED AND REMANDED.

REIF, P.J., and GOODMAN, J. (sitting by designation), concur.


author: JOHN F. REIF, Presiding Judge.

text:
    2004 OK CIV APP 62
    TCINA, INC., an Oklahoma corporation, Plaintiff/Appellee, v. NOCO INVESTMENT CO., INC., an Oklahoma corporation, Defendant/Third Party Plaintiff/ Appellant, and Grant Oil and Gas Corporation, an Oklahoma corporation, and Lexus Petroleum Company, Inc., Defendants.
    No. 97,482.
    Court of Civil Appeals of Oklahoma, Division No. 2.
    April 13, 2004.
    Certiorari Denied June 28, 2004.

      Larry Jay McMains, Johnston & McMains, Seminole, OK, for Appellee.
    Robert A. Huffman, Jr., Rodney A. Edwards, Melissa Mailath, Edwards & Huffman, L.L.P., Tulsa, OK, for Appellant.
   JOHN F. REIF, Presiding Judge.

¶ 1 The issue on appeal concerns the priority of conflicting liens asserted by TCINA, Inc., and NOCO Investments against the working interest of Grant Oil & Gas Corporation in a secondary recovery unit known as the Fleet-Osborn Gilerease Unit. This unit, located in Seminole County, was approved by the Oklahoma Corporation Commission on January 27, 1981, and was operating during the time the conflicting lien claims arose. In the trial court, TCINA stressed that the lien it seeks to enforce is based on 52 O.S.2001 § 287.8 which grants a first and prior lien on participating interests in the unit for the operating expenses of the unit. There was no dispute that Grant Oil & Gas was delinquent in paying operating expenses assessed to its working interest. NOCO asserted priority, the statutory language notwithstanding, based on a mortgage filed December 31, 1999, which predates TCINA’s commencement as operator. NOCO also asserts that even if TCINA did perform operating services prior to the recording of the NOCO mortgage, TCINA never filed a lien statement to perfect a lien. The trial court ruled that the statutory operating expense lien had priority and NOCO appeals.

¶ 2 NOCO contends that the only way the trial court could find the statutory operating expense lien had priority over its mortgage was to treat the lien as automatically perfected upon the land-record filing of the order approving the unit. Citing Fourth National Bank of Tulsa v. Appleby, 1993 OK 153, 864 P.2d 827, NOCO points out that the Oklahoma Supreme Court refused to recognize automatic perfection of a similar operating expense lien granted by 52 O.S.1981 § 87.1(e) to the operator of a forced pooled unit. In Appleby, the Oklahoma Supreme Court concluded that “the legislature intended that § 87.1(e) liens be perfected and enforced under the terms of [42 O.S.1981] § 146 in the same way as § 144 [oil and gas labor/material] liens are enforced.” Id. at ¶ 16, 864 P.2d at 832. Noting that both liens arise from oil and gas operations which may go on for years, the court further stated, “we believe the legislature would have said so had it intended that § 87.1(e) [forced pooling operator] liens be enforced differently than § 144 [oil and gas labor/material] liens.” Id.

¶ 3 Admittedly, the lien given by § 287.8 is like the liens under § 87.1(e) and § 144 in that it “arise[s] from oil and gas operations, which may go on for many years.” Id. at ¶ 16, 864 P.2d at 832. However, it is also significantly different in that the legislature expressly and unconditionally declared the § 287.8 lien to be a first and prior lien. The term “first lien” is a legal term of art meaning a lien which takes priority or precedence over other charges or encumbrances upon the same piece of property and which must be satisfied before such other charges are entitled to participate in the proceeds of the property’s sale. Gibson v. Resolution Trust Corp., 51 F.3d 1016, 1022 n. 9 (11th Cir.1995) (citing Black’s law DICTIONARY (6th ed.1990)).

¶ 4 In providing a first and prior lien against participating leases and interests for unit operating expenses, the legislature was protecting the mutual dependency of the participating leases and interests under the “pay as you go” plan the legislature had provided for unit operation. A first and prior lien is absolutely essential to preserve the fiscal integrity of the unit in that (1) the unit must operate “without profit to the unit,” § 287.8, and (2) the unit cannot acquire, hold, or possess real or personal property for its own account, but does so only as agent for the several lessees, 52 O.S. § 287.9.

¶ 5 The granting of a first and prior lien also protects owners of royalties, overriding royalties, or other non-burdened interests who pay or are charged with delinquent operating expenses allocated to their participating lease or interest. Without such preferred lien status, under § 287.8, a royalty owner’s subrogation to all the rights of the unit with respect to the interest or interests primarily responsible for the delinquent assessment would be virtually meaningless.

¶ 6 The fact that § 287.8 does not address perfection does not affect the priority of the lien assigned by the statute. “[A] lien declared by positive statute is not dependent for its existence upon subsequent acts requisite to its enforcement.” City of Santa Monica v. Los Angeles County, 15 Cal.App. 710, 115 P. 945, 946 (1911). In declaring the lien under § 287.8 to be a first and prior lien in favor of the unit, we believe the legislature intended to burden the participating leases and interests from the inception of the unit with the operating expenses that would be incurred from time to time. We also believe a land-record filing reflecting approval of the unit and the participation of particular leases or interests would be sufficient perfection. Such a filing imparts notice to third parties that any lien or interest the third party may acquire in a participating lease or interest would be subordinate to the unit’s statutory lien.

¶ 7 Given the nature of the lien in question, it is inconsequential when TCINA became operator or performed services. The relevant inquiry is TCINA’s relationship to the unit at the time of enforcement of the lien, and not the timing of any particular work by TCINA. As stated in Young v. West Edmond Hunton Lime Unit, 1954 OK 195, ¶ 19, 275 P.2d 304, 309: “The unit organization with its operator stands in a position similar to that of a trustee for all who are interested in the oil production either as lessees or royalty owners.” The same can be said for the recovery of delinquent operating expenses by enforcement of the statutory lien given to secure the payment of same. Under Article 17.5 of the plan of unitization, any lessee who was charged to cover delinquent expenses of another lessee is due reimbursement for same “when the amount so [charged is] collected from the Lessees primarily chargeable therewith.” Under Article 17.6 of the plan of unitization, the duty to enforce the lien for delinquent operating expense assessments, and the attendant duty to account for sums collected, devolves to the unit operator at the time the lien is enforced.

¶8 Based on the foregoing, we hold the trial court did not err in granting priority to the lien for unit operating expenses enforced by TCINA, Inc. Accordingly, the trial court is AFFIRMED.

COLBERT, C.J., and RAPP, J., concur.


author: ADAMS, Judge.

text:
    2004 OK CIV APP 60
    Billy Don BURLESON, Plaintiff/Appellant, v. ST. FRANCIS HOSPITAL, an Oklahoma Corporation, and James C. Spann, M.D., Defendants/Appellees, and Jane E. Bare, M.D., David L. Brewer, M.D., James W. Dean, M.D., Mark H. Grosserode, M.D., Archibald S. Miller, M.D., and Brian D. Worley, M.D., Defendants.
    No. 99,653.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    June 14, 2004.

      Phillip 0. Watts, Watts & Watts, Oklahoma City, OK, for PlaintiffiAppellant.
    F. Will DeMeir, David G. Graves, Brad Smith, Barkley Titus Hillis & Reynolds, PLLC, Tulsa, OK, for Defendants/Appellees.
   OPINION

ADAMS, Judge.

¶ 1 Appellant Billy Don Burleson (Plaintiff) appeals a trial court order reinstating its prior summary adjudication in favor of St. Francis Hospital and James C. Spann, M.D., (collectively, Defendants) in Plaintiffs medical malpractice action against Defendants and other physicians. As reflected by the Journal Entry of Judgment, the trial court agreed with the argument made within Defendants’ Motions to Reinstate Summary Judgment that the case was “finally submitted” when Plaintiff filed its Dismissal Without Prejudice pursuant to 12 O.S.2001 § 683, because all of the parties’ summary judgment briefs had been submitted at that time.

¶2 Plaintiff argues that the dismissal of his case under § 683 was proper, and that as a result the trial court was without jurisdiction to enter any further orders in the ease. We agree. The Court in Firestone Tire & Rubber Co. v. Barnett, 1970 OK 93, 475 P.2d 167, approved the holding in Tiffany v. Tiffany, 1948 OK 51, 199 P.2d 606, 200 Okla. 670, that a case is not finally submitted under § 683 and the plaintiff may dismiss without prejudice when the trial court has given time to counsel for future argument.

¶ 3 This is precisely what occurred in this case. As the Journal Entry of Judgment states, the trial court set “the Motions for Summary Judgment of both Defendants for hearing on March 7, 2003, at which time the Court would have heard oral argument ” and that “Plaintiff dismissed the case on the morning of March 7, 2003, several hours before the Court held its hearing on both Defendants’ Motions for Summary Judgment at 1:30 p.m. the same day and granted summary judgment.” (Emphasis added.) Accordingly, Plaintiff filed his voluntary dismissal “before final submission of the case,” and the trial court lacked the authority to grant Defendants’ Motions for Summary Judgment. Plaintiffs ease in the trial court stands dismissed without prejudice, and the trial court’s order is reversed.

REVERSED.

JONES, J., and BUETTNER, V.C.J./P.J., concur.

      . The record demonstrates that Plaintiff dismissed the other defendants without prejudice on August 30, 2002.

      . Section 683 provides that "[a]n action may be dismissed, without prejudice to a future action • • • [b]y the plaintiff, before the final submission of the case to the jury, or to the court, where the trial is by the court.”


author: KENNETH L. BUETTNER, Presiding Judge.

text:
    2004 OK CIV APP 61
    O.C.T. EQUIPMENT, INC., an Oklahoma corporation, Plaintiff/Appellee, v. SHEPHERD MACHINERY CO., a foreign corporation, Defendant/Appellant, and Caterpillar Redistribution Systems, Inc., a foreign corporation, Defendant.
    No. 100,418.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    June 18, 2004.
    G. Neal Rogers, Dunlap, Codding & Rogers, P.C., Oklahoma City, OK, for Plaintiff/Appellee.
    David A. Cheek, A. Michelle Campney, McKinney & Stringer, P.C., Oklahoma City, OK, for Defendant/Appellant.

      . The claim against Defendant Caterpillar Redistribution Systems, Inc. (Caterpillar) was dismissed without prejudice on motion of O.C.T. in an order filed December 15, 2000.

   KENNETH L. BUETTNER, Presiding Judge.

¶ 1 Defendant/Appellant Shepherd Machinery Co. (Shepherd) appeals from summary judgment granted in favor of Plaintiff/Appel-lee O.C.T. Equipment, Inc. (O.C.T.). A tractor which O.C.T. agreed to buy from Shepherd was damaged while in the possession of a bailee. The damage occurred before the bailee had acknowledged O.C.T.’s right to possession and before the tractor was made ready for delivery. We find the undisputed facts show that the risk of loss remained on Shepherd at the time the tractor was damaged. We therefore affirm summary judgment directing Shepherd to refund the purchase price to O.C.T.

¶ 2 After the tractor was damaged, O.C.T. refused delivery and sought reimbursement of the $42,000 it had paid for the tractor. Shepherd refused to refund the purchase price. O.C.T. then filed its Petition alleging that Shepherd breached the contract. O.C.T. sought recision of the contract as well as damages and attorney fees. In its Answer, Shepherd asserted that it was not liable because at the time the tractor was damaged, the risk of loss had passed to O.T.C.

¶ 3 The parties’ primary dispute was who bore the risk of loss at the time the tractor was damaged. O.C.T. also argued that it had a right to reject nonconforming goods regardless of the risk of loss, but as will be explained, ultimately the issue is resolved under the risk of loss provisions of the Uniform Commercial Code. The trial court found in favor of O.C.T. and awarded $42,500, the price O.C.T. had paid Shepherd for the tractor.

¶4 The parties’ competing motions for summary judgment, along with responses and replies, show no dispute of material fact. The parties do not dispute that O.C.T. sought to purchase tractors from Caterpillar, which directed O.C.T. to Shepherd. Mike Clark of O.C.T. called Shepherd December 14,1998 to inquire about tractors then owned by Caterpillar. Shepherd’s employee David Solem met Clark at the Keen Transport yard in Santa Paula, California on December 16, 1998. A Keen employee showed the tractors to Clark. Clark agreed at that time to purchase four tractors, including the tractor which is the subject of this suit, serial number JAK0012531. The invoice for the tractors indicated that each would be equipped with EROPS, pat blade, and winch. A fifth tractor was later added to the order and its serial number was hand-written on the invoice. The parties do not' dispute that at the time Clark agreed to buy the tractors, traetor JAK0012531 did not have a winch installed and that it was agreed the winch would be installed before delivery. Although it is not included in the written invoice, the parties do not dispute that they also agreed that the tractors would be painted yellow before delivery.

¶ 5 Shepherd faxed the invoice to O.C.T. and O.C.T. wired payment for the tractors to Shepherd December 22, 1998. The tractors remained at Keen from the time Clark viewed them and agreed to purchase them. Shepherd sent instructions to Keen not to release any of the tractors to O.C.T.’s carrier until Keen had received a bill of lading for each tractor and a verbal release from one of two Shepherd employees. Shepherd sent O.C.T. a fax dated December 23, 1998 which stated that four of the tractors, including tractor JAK0012531, would be ready for pickup December 28, 1998. Shepherd does not dispute that on December 21, 1998, O.C.T. contacted Shepherd to ask that each of the tractors be checked for antifreeze levels, because of O.C.T.’s concern about the tractors going through high elevations en route to Oklahoma. Shepherd employee Solem contacted Keen and asked for the antifreeze readings. Keen sent Shepherd a listing of the tractor serial numbers showing the antifreeze readings for all the tractors O.C.T. had agreed to buy, but the list showed that tractor JAK0012531 had no antifreeze reading. Solem called Keen December 28, 1998 and asked Keen to recheck tractor JAK0012531 for antifreeze.

¶ 6 A bill of lading in the record shows that tractor JAK0012598 was picked up by O.C.T.’s carrier at Keen December 30, 1998. Keen contacted Shepherd December 31, 1998 to inform Shepherd that during the night between December 30 and December 31, 1998, a security guard at Keen had driven tractor JAK0012531. At the time the security guard drove tractor "JAK0012531, it had no antifreeze/coolant in it and the engine was burned up and ruined. Shepherd then called O.C.T. December 31, 1998 to inform O.C.T. of the damage to tractor JAK0012531. Solem indicated that at that time he also informed O.C.T. that O.C.T. owned tractor JAK0012531 and would have to work with Keen to resolve the damage. O.C.T. refused to take delivery of the damaged tractor. After Shepherd and O.C.T. could not agree on who bore the risk of loss to the tractor, and Shepherd refused to refund O.C.T.’s payment for the tractor, O.C.T. filed its Petition.

¶ 7 The UCC provision pertinent to this case is 12A O.S.2001 § 2-509(2). That subsection provides:

§ 2-509 Risk of Loss in the Absence of Breach
(2) Where the goods are held by a bailee to be delivered without being moved, the risk of loss passes to the buyer
(a) on his receipt of a negotiable document of title covering the goods; or
(b) on acknowledgment by the bailee of the buyer’s right to possession of the goods; or
(c) after his receipt of a nonnegotiable document of title or other written -direction to deliver, as provided in subsection 4(b) of Section 2-503.

¶ 8 Shepherd asserts that § 2-509(2)(b) is applicable to this ease and that its application requires a finding that O.C.T. bore the risk of loss at the time of the damage. Shepherd’s primary contention is that Shepherd, the seller, acknowledged to Keen, the bailee, that O.C.T., the buyer, had the right to possession of the tractors and that § 2-509(2)(b) was therefore met in this case and the risk of loss had transferred to O.C.T. at the time tractor JAK0012531 was damaged. We note the evidence shows only that Shepherd informed Keen in writing that a bill of lading and verbal release (from Shepherd) were required before delivery of each tractor to O.C.T.’s carrier. More importantly, however, it is immaterial what Shepherd communicated to Keen. The plain language of § 2 — 509(2)(b) requires acknowledgment by the bailee of the buyer’s right to possession.

¶ 9 Judge Posner, writing for the Seventh Circuit Court of Appeals, has explained that under § 2 — 509(2)(b), even acknowledgment by the bailee, but only to the seller, is insufficient to transfer the risk of loss. See Jason’s' Foods, Inc. v. Peter Eckrich & Sons, Inc., 774 F.2d 214 (7th Cir.1985). In Jason’s Foods, Jason’s Foods agreed to sell to Eck-rich 38,000 pounds of ribs. The ribs were stored by a bailee — an independent meat storage facility. Under the sales agreement, delivery would be made by transferring the ribs from Jason’s account ledger at the storage facility to Eckrich’s account at the facility, without moving the ribs. Jason’s asked the storage facility to move the ribs from Jason’s account to Eckrich’s. The facility clerk noted the transfer on the books immediately. Eckrich did not receive a receipt, and did not know the transfer had been made until 11 days later. In the meantime, the ribs were destroyed by a fire at the storage facility. The parties disputed when the risk of loss transferred. Jason’s contended the risk transferred to Eckrich on the date the clerk transferred the ribs to Eckrich’s account, because on that date Jason’s lost ownership and control over the ribs. Eckrich argued that it should not bear the risk of loss of ribs it did not know it owned or controlled.

¶ 10 The court explained that under § 2-509(2), risk of loss is not related to title, but rather shifts when the transfer is acknowledged. Id. at 217. The court then considered to whom the statute required acknowledgment be made. Judge Posner opined that there would be little purpose in acknowledging to the seller the buyer’s right to possession, particularly because the seller has informed the bailee of the buyer’s right to possession and necessarily already has such knowledge. Id. The court noted that § 2-503(4)(a) also indicates that acknowledgment by the bailee of the buyer’s right to possession is a method of tendering goods sold without being moved. But, that section likewise fails to indicate to whom the bailee must make the acknowledgment. Id. The court noted, however, that the corresponding provision of the Uniform Sales Act, which preceded the UCC, provided that acknowledgment must be made to the buyer, and the UCC comments following § 2-503 state that the section was not intended to change the Uniform Sales Act provision. Id. Additionally, the court noted that the comments to § 2-509 indicate that in the circumstance of delivery without moving goods in the possession of a bailee, the rules on manner of tender apply on the issue of risk of loss. Id. The court deduced that acknowledgment by the bailee to the buyer is required for tender, and likewise for transfer of the risk of loss. Id. The court noted that the acknowledgment need not be in writing, and the court declined to answer whether the pertinent date is when a written acknowledgment is mailed or when it is received, because it found that issue had not been raised by the parties. Id. at 218.

¶ 11 We find the reasoning in Jason’s Foods persuasive. And, the case on which Shepherd relies does not suggest another holding. In Whately v. Tetrault, 29 Mass. App. Dec. 112, 5 UCC Rep. Serv. 838 (1964), the plaintiff owned a boat and trailer which were kept in a storage facility. The defendant’s agent met with the plaintiff and agreed to purchase the boat and trailer on behalf of the defendant. The agent and the plaintiff then went together to the storage facility where the plaintiff explained to the clerk that the boat and trailer had been sold and told him the agent could arrange to pick up the boat and trailer. The agent and clerk at that time agreed to have the boat and trailer picked up the following day. When the defendant went to the bailee’s facility the next day as agreed, the trailer was missing.

¶ 12 The dispute in Whately was over who bore the risk of the loss of the trailer. The court found that the bailee had acknowledged the defendant’s right to possession of the trailer to the defendant’s agent when the two arranged for the time to pick up the boat and trailer. Id. at 840. The court also held that because of the acknowledgment by the bail-ee, there had been a tender of delivery under § 2-503(4)(a). Id. The court found that nothing remained for the plaintiff seller to do under the agreement because he had been paid, he had informed the bailee of the sale, and the bailee had acknowledged to the defendant buyer his right to possession of the trailer. The court concluded that the risk of loss therefore had transferred to the buyer at the time of the loss. Id. We agree that acknowledgment from the bailee to the buyer is required by § 2 — 509(2)(b) to transfer the risk of loss to the buyer in the case of goods in the possession of the bailee held to be delivered without being moved.

¶ 13 In anticipation of this interpretation of the statute, Shepherd argued in its Reply to O.C.T.’s Response to Shepherd’s Motion for Summary Judgment that Keen had communicated to O.C.T. about O.C.T.’s carrier picking up the tractors. The record contains no evidence to support this assertion. The record contains no bill of lading for tractor JAK0012531. We recognize the Seventh Circuit’s holding that an acknowledgment is not required to be in writing, but the record contains no evidence that Keen ever gave O.C.T. verbal or written acknowledgment that O.C.T. had the right to possession of tractor JAK0012531. Indeed, Solem’s affidavit makes clear that all communications from Keen were made to Solem at Shepherd, who then passed the information on to O.C.T. Solem’s affidavit indicates these communications regarded the coolant readings and then the damage to the tractor; nothing in So-lem’s affidavit purports to show that Keen acknowledged O.C.T.’s right to possession by communication passed via Shepherd, even if such indirect acknowledgment could operate to transfer the risk of loss.

¶ 14 Shepherd’s argument, that its release of a different tractor, which O.C.T. picked up December 30,1998, somehow operated as an acknowledgment by Keen to O.C.T. of O.C.T.’s right to possession of all of the tractors at that time, is unsupported. Particularly where the undisputed evidence shows that tractor JAK0012531 was not in fact ready for pick up according to the parties’ agreement because coolant had not been added to it. O.C.T. employee Clark’s affidavit states that Shepherd informed O.C.T. on December 23, 1998 that tractor JAK0012531 would be ready for transport December 28, 1998 and that O.C.T. arranged for transport of the equipment for December 30, 1998. However, tractor JAK0012531 was in fact not ready for transport on December 28 or December 30, 1998, because it did not have coolant in it. Solem’s affidavit shows that Shepherd continued to direct Keen’s actions toward tractor JAK0012531, particularly directing Keen to check the coolant level in the tractor, at the time it was damaged. This fact is important because of the written evidence that Shepherd directed Keen not to release the tractors without a bill of lading and verbal release. It is unreasonable to assume that Shepherd would have given the verbal release of tractor JAK0012531 when Shepherd was still directing Keen to make cheeks and repairs to that tractor, and which clearly were not completed at the time of the damage. Additionally, it would be unreasonable to say that a bailee could make an acknowledgment and effectively pass the risk of loss before the object of the agreement is conforming. The record contains no legitimate evidence that Keen gave O.C.T. acknowledgment of its right to possession of the tractors as required by § 2-509(2)(b).

¶ 15 Similarly, we dispense with Shepherd’s contention that O.C.T. owned the tractor at the time of the damage because O.C.T. inspected the tractors December 16 and mailed payment before the damage occurred. O.C.T. asserts that § 2-513 provides that a buyer has a right before payment or acceptance to inspect the goods. Shepherd contends that this allows but one inspection either before payment or before acceptance, and that O.C.T. inspected the goods when it agreed to purchase them. Shepherd’s contention ignores the language of § 2-512(2) that payment does not constitute an acceptance of goods or impair the buyer’s right to inspect or any other buyer’s remedy. It is undisputed that when O.C.T.’s representative looked at the tractors December 16 (which Shepherd refers to as an inspection), the parties then agreed that Shepherd would make several changes to the tractors before delivery. It is unreasonable to assert that if Shepherd had failed to install the winch or had failed to paint the tractors, O.C.T. would still have been forced to accept delivery of the non-conforming tractors. More importantly, we rely, as the courts in Jason’s Foods and Whately did, on § 2-503 regarding time of tender of delivery in the case of goods held by a bailee for delivery without being moved. That section requires acknowledgment from the bailee to the buyer of the buyer’s right to possession before tender of delivery can be found.

¶ 16 The ease of Moses v. Newman, 658 S.W.2d 119, 37 UCC Rep. Serv. 461 (Tenn. App.1983) is not a bailment case, but it does offer instructive analysis on risk of loss where the goods have not been made conforming at the time of the loss. In Moses, the buyer agreed to purchase a habitable mobile home, including installation, from the seller. The seller delivered the mobile home to the buyer’s property and began installation. The buyer began cleaning the interior of the home during the installation. The buyer informed the seller that date that two broken parts had been discovered, and also that the buyer did not have keys to the door of the home. The next day, before those conditions were remedied, the home was destroyed by wind. The dispute was whether the buyer had accepted the home at the time of the damage. The court noted that the seller had not completed the contracted installation at the time of the loss. Id. at 121. The court held that the buyer’s opportunities to inspect the home either at the seller’s lot or during the installation were not reasonable opportunities to inspect under the U.C.C. Id. The court also noted that § 2-510 provides that where a tender or delivery so fails to conform to the contract as to give a right of rejection, the risk of loss remains on the seller until cure or acceptance. Id. at 122. The court noted that the buyer had contracted for a habitable mobile home plus installation. The court found that because the loss occurred before installation was complete, the seller had not delivered conforming goods and the risk of loss remained on the seller. Id. The buyer retained the right to reject the goods because they failed to conform. Id., citing § 2-601.

¶ 17 In this case, there is no evidence that Keen gave the acknowledgment to O.C.T. of its right to possess the goods. Additionally, the parties do not dispute that Shepherd retained control over the tractor and agreed to verify that the tractor had coolant in it. The tractor was damaged before the coolant was added. The risk of loss remained on Shepherd in both respects: either under § 2-509(2)(b) because of lack of acknowledgment, or under § 2-510(1) because of failure to tender a conforming good before the damage occurred. Under 12A O.S.2001 § 2-601(c), O.C.T. was able to reject only tractor JAK0012531, which was a separable commercial unit. We find the undisputed evidence shows that the risk of loss remained on Shepherd at the time tractor JAK0012531 was damaged and O.C.T. rightfully rejected delivery of it. The trial court’s grant of summary judgment to O.C.T. was proper, and the award of the amount paid for the tractor was proper under 12A O.S.2001 § 2-711(1).

AFFIRMED.

ADAMS, J., and JONES, J., concur.

      . Caterpillar sold the tractors to Shepherd for resale to O.C.T.

      . The invoice is stamped with the words "as is where is” and Shepherd also argued that such language absolved it of responsibility. Those words apply to any warranty on the goods; they do not alter the risk of loss provisions of the U.C.C.

      .As explained in a letter from Shepherd to O.C.T.’s counsel dated April 26, 1999, "the machine in question needed to have antifreeze added. Unfortunately, before it was added, an intervention by a third party caused the damage in question.”

      . Bills of lading in the record show that O.C.T. took possession of the other tractors in the agreement.

      . Section 2-503(4)(b) provides for the'manner of tender of delivery and provides:
      (4) Where goods are in the possession of a bailee and are to be delivered without being moved

      (b) tender to the buyer of a nonnegotiable document of title or of a written direction to the bailee to deliver is sufficient tender unless the buyer seasonably objects, and receipt by the bail-ee of notification of the buyer’s rights fixes those rights as against the bailee and all third persons; but risk of loss of the goods and of any failure by the bailee to honor the nonnegotiable document of title or to obey the direction remains on the seller until the buyer has had a reasonable time to present the document or direction, rind a refusal by the bailee to honor the document or to obey the direction defeats the tender.