author: BAY MITCHELL, Presiding Judge.

text:
    2004 OK CIV APP 45
    HYDRO TURF, INC., an Oklahoma corporation, Plaintiff/Appellee, v. INTERNATIONAL FIDELITY INSURANCE COMPANY, a New Jersey corporation, Defendant/Appellant, Bryan Adair Construction Company, an Oklahoma Corporation, Defendant.
    No. 99,612.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    April 16, 2004.

      Craig A. Fitzgerald, Bryant Law Firm, P.L.L.C., Tulsa, OK, for PlaintiffAppellee.

      Mary Robertson, Christopher R. Graves, John H. Sparks, Crowe & Dunlevy, Norman, OK, and Kayei B. Hughes, Tulsa, OK, for Defendant/Appellant, Crowe & Dunlevy, International Fidelity Insurance Company.
   Opinion by

BAY MITCHELL, Presiding Judge.

¶1 This dispute arises out of construction contracts related to the excavation portion of the South Loop of the Creek Nation Turnpike in Broken Arrow, Oklahoma (“the Project”). Upon default by the original contractor, Defendant/Appellant International Fidelity Insurance Company (“IFIC”) hired Defendant Bryan Adair Construction Company (“BACC”) to complete- the Project. Although IFIC secured the original contractor’s performance by issuing performance, payment, and maintenance bonds as required by 61 O.S.2001 §§ 1 and 2, IFIC did not issue such bonds on BACC’s behalf and did not require BACC to obtain the bonds on its own. BACC subcontracted with Plaintiff/Appellee Hydro Turf, Inc., to undertake seeding, mulching, fertilizing, and mowing services required for the Project. When BACC failed to pay Hydro Turf for its work, Hydro Turf sued IFIC and BACC alleging IFIC negligently failed to secure a payment bond on behalf of BACC or-require BACC to do so. Hydro Turf further charged IFIC had been unjustly enriched as a result of Hydro Turfs work and Hydro Turf was entitled to prejudgment interest on the amount owed. The trial court granted Hydro Turf’s motion for summary judgment against IFIC and denied IFIC’s cross motion. We reverse and remand for trial on the merits.

Facts

¶ 2 On February 18,1999, Oklahoma Turnpike Authority (“OTA”) entered into Contract 1335 with Oklahoma Excavation, Inc. (“OEI”), under which OEI agreed to act as contractor and furnish certain materials and labor required to complete construction of the excavation portion of the Project. Consistent with the mandates of 61 O.S.2001 §§ 1 and 2, OEI posted performance, payment, and maintenance bonds in favor of OTA as obligee, with OEI as principal and IFIC as surety. When OEI defaulted in its performance, IFIC was required to fulfill its performance-bond obligation to OTA. In so doing, IFIC entered into a Completion Contract with BACC on December 20, 2000, under which BACC agreed to furnish the materials and labor necessary to complete the work required by Contract 1335.

¶ 3 The Completion Contract obligates BACC to fully perform and complete the Project work as if it were the original contractor under Contract 1335. The Completion Contract further provides that “[pjrior to commencing work under this Agreement, the Completion Contractor [BACC], as principal, shall deliver to Surety [IFIC], as obli-gee, a Performance Bond, a Statutory and Payment Bond and a Maintenance Bond -” (emphasis added). Despite this provision, IFIC permitted BACC to commence work on the Project without securing the required bonds. Several months later, IFIC and BACC amended the Completion Contract to increase from five to ten percent the amount IFIC would retain from each partial payment it made to BACC after the Project was fifty percent complete. IFIC supervised BACC’s performance, reviewed its invoices, and approved payments to BACC. It was not until October 18, 2001, that IFIC learned BACC was failing to pay its subcontractors. IFIC holds no monies due and owing BACC.

¶ 4 Contract 1335 required OEI to seed all the areas it disturbed and establish initial grass growth. It further obligated OEI to preserve all public and private property and, at its own expense, to repair and restore any and all damaged areas to a condition similar or equal to that existing before the damage or injury, and to make good on all losses to any portion of the project. BACC assumed these obligations under the terms of its Completion Contract with IFIC.

¶5 On April 10, 2001, BACC entered a Standard Subcontract Agreement with Hydro Turf under which Hydro Turf agreed to perform, and BACC to pay for, the seeding, mulching, fertilizing, and mowing required by Contract 1335. The subcontract set the maximum amount Hydro Turf could charge for seeding, mulching, fertilizing, and mowing at $87,800. Hydro Turfs invoices to BACC for the Contract 1335 work show the value of the work to be $57,758.05. Consistent with its obligations under Contract 1335, BACC asked Hydro Turf to restore approximately 40 additional acres that had been damaged or disturbed. BACC provided written authorization to Hydro Turf to perform this necessary “additional or extra work” at the rate set forth in the subcontract. Hydro Turfs invoices to BACC for the extra work under the subcontract show its value to be $30,265.45. Accordingly, the total value of the work Hydro Turf perfprmed for BACC is $88,023.50. BACC paid Hydro Turf $20,127.50 of that amount, leaving $67,896.00 unpaid.

¶ 6 Although Hydro Turf fully performed all of its contractual obligations, BACC failed to pay Hydro Turf for its work. IFIC denied responsibility for payment. Hydro Turf filed suit for breach of contract and unjust enrichment seeking to recover $79,639.75 from BACC. Hydro Turf further sought $67,896 from IFIC under negligence and unjust enrichment theories, claiming IFIC was negligent in failing to secure or cause BACC to secure a statutorily-required bond guaranteeing payment to subcontractors and suppliers. IFIC contends it owes no duty to Hydro Turf, and Hydro Turf, as a matter of law, has no claim against IFIC. Additionally, if a duty is found to exist, IFIC contends disputed fact issues exist precluding summary judgment. For purposes of summary judgment, IFIC admits $67,896 is the outstanding amount not paid to Hydro Turf.

¶ 7 Upon cross-motions for summary judgment between Hydro Turf and IFIC, the trial court ruled in favor of Hydro Turf in the amount of $67,896 on the grounds that under Boren v. Thompson & Assocs., 2000 OK 3, 999 P.2d 438, IFIC breached its duty to require BACC to post a bond to cover the cost of the materials and labor supplied by subcontractors. The trial court further found IFIC liable to Hydro Turf under an unjust enrichment theory and awarded it prejudgment interest.

Standard of Review

¶ 8 IFIC contends the trial court erred in granting summary judgment to Hydro Turf. We will affirm the trial court’s grant of summary judgment if no genuine controversy exists as to any material fact and the movant is entitled to judgment as a matter of law. 12 O.S.2001, Ch. 2, App.l, Rule 13. If a legitimate dispute does exist as to a material fact, however, or if reasonable minds could draw different conclusions from the undisputed facts, summary judgment is not appropriate. Brown v. Prudential Properties of Oklahoma, 1999 OK 7, ¶ 7, 976 P.2d 1043, 1045. In evaluating the trial court’s grant of summary judgment on appeal, we must view the evidence in the light most favorable to the nonmovant. Vance v. Fed. Nat’l Mtg. Ass’n, 1999 OK 73, ¶ 6, 988 P.2d 1275, 1278. Of course, the question of whether a duty exists from IFIC to Hydro Turf and whether Hydro Turf has a legally recognizable claim against IFIC are questions of law, reviewable de novo.

Analysis and Review

¶ 9 Section 1 of Title 61 provides in pertinent part:

A. Prior to an award of a contract exceeding Twenty-five Thousand Dollars ($25,000.00) for construction or repair of a public building or structure, or improvement to real property, the person that receives the award shall:
1. Furnish a bond with good and sufficient sureties payable to the state in a sum not less that the total sum of the contract;
B. The bond ... shall ensure the proper and prompt completion of the work in accordance with the contract and shall ensure that the contractor shall pay all indebtedness the contractor incurs for the contractor’s subcontractors and all suppliers of labor, material, rental of machinery or equipment, and repair of and parts for equipment the contract requires the contractor to furnish.

Section 2 of Title 61 specifies the manner in which contractors are to file bonds and establishes subcontractors’ rights of action thereupon.

¶ 10 In Boren v. Thompson & Assocs., 2000 OK 3, 999 P.2d 438, a school board hired an architecture firm to design and oversee construction of a new library building. The architecture firm’s contractor failed to secure a payment bond required under 61 O.S.1991 §§ 1 and 2. When the contractor failed to pay the subcontractors, they sued the architecture firm alleging negligence in certifying payments to the contractor in the absence of the statutorily-required payment bond. Id., ¶ 8, 999 P.2d at 442^43. The architecture firm filed a motion to dismiss arguing it did not owe a duty to the subcontractors; there was no privity of contract between them; and, given the subcontractors’ constructive knowledge of the contractor’s duty to procure a payment bond, the subcontractors’ own negligence was the proximate cause of their loss. Id. The trial court denied the architecture firm’s motion to dismiss. Id. After a three-day trial on the merits, the jury found the architecture firm liable in negligence to the subcontractors and returned a special verdict finding the firm’s architect had acted wilfully and with reckless disregard for the rights of the subcontractors. Id., ¶ 9, 999 P.2d at 443.

¶ 11 In its review, the Supreme Court noted the fundamental objective of § 2 is to protect subcontractors and materialmen on public construction projects given that no lien rights exist against public land or improvements. Id., ¶ 16, 999 P.2d at 444. The Supreme Court acknowledged it is the duty of the contractor, not the architecture firm, to secure the payment bond, and that “a jury may consider the subcontractors’ neglect in failing to personally verify whether a payment bond has been secured.” It also observed, however, that the damages in the ease “arose from the architect’s negligence in failing to ascertain that there was no payment bond and in making unauthorized payments to the contractor after he discovered that no payment bond existed. Damages would not have arisen had the bond been obtained.” Id., ¶¶ 17, 24, 999 P.2d at 444, 447.

¶ 12 The Court further reasoned “once a public entity has contracted with a private party to oversee a construction project, subcontractors should be able to assume that the private party responsible for certifying payments has verified the existence of the bonds. To do otherwise, would thwart the purpose and intent of the bond statutes.” Id., ¶ 19, 999 P.2d at 445. “Concurrent with a contractor’s duty to secure a bond is the public entities’ duty to withhold payment to a contractor in the absence of a bond.” Id., ¶ 18, 999 P.2d at 445. Finally, “the architect ought to-labor under a duty to subcontractors to refrain from paying the contractor without the required statutory payment bond being secured.”' Id., ¶ 23, 999 P.2d at 447. This holds true despite the lack of privity between the architecture firm and the subcontractors, because the architecture firm’s liability “is based upon proximate cause and the foreseeability that [its] conduct could harm third parties.” Id., ¶22, 999 P.2d at 446.

¶ 13 Thus, in upholding the trial court’s denial of the architecture firm’s motion to dismiss for failure to state a cause of action, the Boren decision stands for the proposition that certain parties involved in contracts for public works have an obligation to subcontractors to ensure contractors obtain payment bonds and thereby avoid the foreseeable harm to subcontractors of nonpayment in the absence of lien rights. In other words, “a subcontractor should not be precluded in all circumstances from asserting a claim against an entity such as the [architecture] firm solely because it did not request a copy of the bond.” Id., ¶ 24, 999 P.2d at 447.

¶ 14 It is undisputed IFIC permitted BACC to commence work on the Project and issued partial payments to BACC even though it had full knowledge of BACC’s failure to secure a payment bond. Nonetheless, IFIC attempts to distinguish itself from the architecture firm in Boren by downplaying its role in the Project. While it is true IFIC did not design the Project as the architecture firm did in Boren, it did much more than approve payments to BACC. Indeed, like the architecture firm, it was the entity that actually paid the contractor. Further, as a result of being the surety on OEI’s performance bond, IFIC was contractually obligated and responsible to OTA for completion of the Project. In furtherance of this goal, IFIC hired its own overseer to the Project, Gary Bierhalter, whose written approval BACC was required to receive before it could do such things as work overtime. In addition, the Completion Contract between IFIC and BACC requires BACC to fully perform and complete the work under Contract 1335 as if it were the original contractor and specifically prohibits BACC from commencing work on the Project until it secured the necessary bonds. IFIC disregarded this provision and permitted BACC to begin work without the required bonds, thus leaving BACC’s subcontractors unprotected. Like the architecture firm in Boren, IFIC was in a position to ensure BACC obtained the payment bond, either by not permitting BACC to commence work on the Project as per the Completion Contract or by withholding all payments until BACC secured the bond.

¶ 15 Next, IFIC argues 61 O.S.2001 §§ 1 and 2 apply only to those entities that are awarded public contracts directly. IFIC maintains it is not obligated to fulfill the bond requirements because OTA awarded the original contract to OEI, and IFIC is merely the performance surety. This argument ignores the public policy behind the statute: it is designed to protect subcontractors, laborers, and suppliers in the event the contractor does not pay them, because such persons cannot obtain a lien on public property. Boren, ¶ 16, 999 P.2d at 444. This need to protect subcontractors from nonpayment is equally great where, as here, a performance surety has been forced to assume the role of the original contractor due to the original contractor’s default in performance.

¶ 16 IFIC’s conduct in increasing the re-tainage from five to ten percent after the Project is fifty percent (50%) complete does not raise a question of fact with respect to the breach of its duty to require BACC to secure a payment bond. The statute does not authorize increasing the retainage amount as an alternative to requiring a bond, and the Boren decision speaks of the duty to withhold any payment until the contractor secures a payment bond. Boren, ¶ 18, n. 23, 999 P.2d at 445. Moreover, that the increased retainage amount was not sufficient to protect subcontractors on the Project is evident by IFIC’s failure to pay Hydro Turf for its work when BACC defaulted. IFIC was obligated either to prohibit BACC from commencing work on the Project or to withhold all payments to BACC until BACC obtained the payment bond.

¶ 17 Finally, IFIC’s knowledge or lack thereof of BACC’s non-payment to Hydro Turf is irrelevant to whether Hydro Turf successfully stated a claim for negligence. Under both the specific terms of its Completion Contract with BACC and the legal precedent established in Boren, IFIC should have prohibited BACC from commencing, work on the project or withheld all payments to BACC unless and until it secured the necessary bonds. IFIC was obligated to do this regardless of whether BACC paid its subcontractors. For these reasons, we agree with the trial court that IFIC owed a duty to Hydro Turf and Hydro Turf may maintain a' negligence action based on IFIC’s failure to secure or to cause BACC to secure a payment bond to guarantee payment of its subcontractors.

¶ 18 However, in addition to holding that a party such as IFIC may be liable to subcontractors despite a lack of privity, the Boren decision also stands for the proposition that in determining liability under such facts, a jury may consider the extent of the subcontractor’s negligence in failing to ascertain the existence of the payment bond prior to commencing work. Boren, ¶ 24, 999 P.2d at 447. By granting Hydro Turfs motion for summary judgment on its negligence claim, the trial court kept the question of Hydro Turfs possible contributory negligence from the finder of fact. For this reason, we reverse the trial court’s award of summary judgment to Hydro Turf on the issue of negligence and remand for trial on the merits.

¶ 19 We are compelled to reverse the trial court’s grant of summary judgment to Hydro Turf on its unjust enrichment claim as well. Because an adequate remedy at law is available to Hydro Turf through its negligence claim, it was not necessary for the trial court to invoke its equitable jurisdiction on the unjust enrichment issue. See Billingsley v. North, 1956 OK 153, ¶ 6, 298 P.2d 418, 422. In any event, the trial court should have considered Hydro Turfs possible negligence in failing to determine whether BACC had secured a payment bond before it commenced work under the subcontract in balancing the equities.

¶ 20 Because we find the trial court erred in awarding summary judgment .to Hydro Turf on its negligence and unjust enrichment claims, we also must reverse prejudgment interest award to Hydro Turf.

¶21 For these reasons, we reverse the trial court’s grant of summary judgment to Hydro Turf and against IFIC on Hydro Turfs negligence, unjust enrichment, and prejudgment interest claims, and remand for trial on the merits.

REVERSED AND REMANDED.

HANSEN, J., and JOPLIN, J., concur.

      . The order appealed does not dispose of Hydro Turfs claim against BACC. Nevertheless, pursuant to 12 O.S. § 994, the trial court expressly determined there was no just reason for delay and this should be a final order as to IFIC.

      . Under the original Completion Contract, IFIC would retain ten percent of each partial payment but only until the project was fifty percent complete. After that, IFIC would retain five percent of each partial payment to BACC. IFIC would pay the retainage to BACC as part of the final payment.


source: Caselaw Access Project

author: TOM COLBERT, Chief Judge.

license: Public Domain

text:
    2004 OK CIV APP 44
    Brian C. WILSON, Plaintiff/Appellant, v. CITY OF TULSA, and Chief of Police Ron Palmer, Defendants/Appellees, and Bryant Lamont Harris, Defendant.
    No. 99,443.
    Court of Civil Appeals of Oklahoma, Division No. 2.
    April 27, 2004.

      Loren Gibson, Gibson & Associates, Oklahoma City, OK, for Plaintiff/Appellant.
    Ellen Hinchee, Tulsa, OK, for Defendants/Appellees.
   Opinion by

TOM COLBERT, Chief Judge.

¶ 1 Brian C. Wilson appeals from a summary judgment granted in favor of the City of Tulsa (City), and Ron Palmer, City’s former Chief of Police (Chief). The issue on appeal is whether the trial court erred in determining that there was no issue as to any material fact and that City and Chief were entitled to judgment as a matter of law. Upon review of the summary judgment record and applicable law, we conclude that the trial court did not err and affirm its judgment.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 On November 28,1999, Wilson, a police officer employed by City, arrested Bryant Lamont Harris. Harris later complained that Wilson stole $300 from him during the course of the arrest, and the police department conducted an internal investigation. On February 3, 2000, upon reviewing the resulting report and file, Chief terminated Wilson. The police department issued a press release stating the official reasons for Wilson’s termination.

¶3 Wilson, a member of the Fraternal Order of Police (FOP), filed a grievance to appeal his termination under the terms of the collective bargaining agreement between FOP and City. His grievance was prosecuted in arbitration by FOP. The arbitrator concluded Wilson’s termination violated the contract and he was reinstated.

¶4 On February 3, 2001, Wilson filed a tort claim notice with City. On October 30, 2001, he filed this action against City and Chief. City and Chief filed motions for summary judgment. Following a hearing, the trial judge granted both motions. Wilson appeals.

STANDARD OF REVIEW

¶ 5-“Summary judgment is proper only when the pleadings, affidavits, depositions, admissions or other evidentiary materials establish that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Davis v. Leitner, 1989 OK 146, ¶ 9, 782 P.2d 924, 926. Although a trial court considers factual matters when deciding whether summary judgment is appropriate, its ultimate decision is purely legal: “whether one party is entitled to judgment as a matter of law because there are no material disputed factual questions.” Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. Therefore, our standard of review on appeal is de novo. Id.

DISCUSSION

¶ 6 Wilson asserts he was actually terminated for refusing to sign a liability waiver before taking a polygraph examination from an examiner chosen by City. In support of this assertion, he submitted deposition testimony from a retired police officer who stated that Chief admitted he fired Wilson for refusing to take the polygraph examination. Termination for that reason would have been in violation of a newly-adopted policy negotiated between FOP and City and effective January 21, 2000, roughly two weeks before Wilson’s termination. The new policy became part of the contract between FOP and the police department.

¶ 7 Wilson contends there is a fact issue as to whether he was terminated for refusing to submit to a polygraph examination. Assuming he was, Wilson asserts that (1) his termination was wrongful and in violation of Oklahoma’s public policy of free speech; (2) his termination constituted a separate violation of his constitutional free speech rights; and (3) the press release implying he was fired for theft and lying was defamatory. Wilson further asserts that Chief exceeded the scope of his employment and is, therefore, personally liable for defamation and wrongful interference with Wilson’s employment contract.

I

¶ 8 We must first consider the extent to which Wilson is precluded from relit-igating the issues raised in this lawsuit because of the arbitration of his grievance. The availability of the doctrine of issue preclusion presents a question of law to be reviewed de novo. Cities Serv. Co. v. Gulf Oil Corp., 1999 OK 14, ¶ 12, 980 P.2d 116, 124. Whether it applies under the facts presented here calls for an exercise of the trial court’s discretion, which we review for abuse of that discretion. Id.

¶ 9 In Nealis v. Baird, 1999 OK 98, ¶ 51, 996 P.2d 438, 458, the Supreme Court offered the following analysis:

Issue preclusion prevents relitigation of facts and issues actually litigated and necessarily determined in an earlier proceeding between the same parties or their privies. An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined.... An issue is necessarily determined if the judgment would not have been rendered but for the determination of that issue. Additionally, the party against whom issue preclusion is interposed must have had a “full and fair opportunity” to litigate the critical issue in the earlier case.

(Footnotes omitted.) An arbitration award can be the basis for the application of issue preclusion if the other criteria are in place. Cities Serv., 1999 OK 14, ¶¶ 16-17, 980 P.2d at 125-26.

¶ 10 The arbitrator concluded that Wilson’s termination violated the contract between FOP and City, because the evidence was insufficient to establish that Wilson stole the money. He also concluded, however, that City did not willfully or intentionally violate the contract and denied FOP’s request for punitive damages. City asserts that this conclusion is binding on Wilson and precludes his claim here that City’s (or Chiefs) actions were intentional, willful, or malicious.

¶ 11 Wilson argues that issue preclusion does not apply because there is no privity between him and FOP. To be in privity, a party must “actually have the same interest, character, or capacity as the party against whom the prior judgment was rendered.” Hildebrand v. Gray, 1993 OK CIV APP 182, ¶ 16, 866 P.2d 447, 450-51. There are no hard and fast rules; the existence of privity depends upon the circumstances and requires “ ‘a person so identified in interest with another that he represents the same legal right.’” Id. (quoting 46 Am.Jur.2d, Judgments § 532 (1969)).

¶ 12 The Tenth Circuit has held that an employee and his union are not always in privity. Mitchell v. City of Moore, 218 F.3d 1190, 1203 (10th Cir.2000). In Mitchell, the union-had exclusive control over the arbitration and did not vigorously' present the claims because it was not in its interests to do so. Id. In this action, FOP vigorously pursued Wilson’s argument that he was terminated for refusing to sign a liability waiver and take the polygraph examination. FOP also raised the issue of bad faith and willful conduct on City’s part when it asked for punitive damages and directly argued that Wilson was terminated in violation of the policy on polygraph examinations. Wilson had control of the arbitration since he made the decision about whether to pursue lost wages. See Greco v. Foster, 1954 OK 42, ¶ 17, 268 P.2d 215, 220 (“[A] person not a party to the action, but who participates and who has control of and directs the litigation ... and does those things generally done by a party of record, is estopped to deny the validity of a judgment rendered therein.”). Even though the arbitration proceeding arising out of Wilson’s grievance was technically conducted by FOP, the identity of interests between Wilson and FOP, combined with his control over the issues presented by FOP on his behalf, lead us to the conclusion that he was in privity with FOP.

¶ 13 Moreover, the issue was actually litigated and resolved in the arbitration proceeding. The arbitrator was well within his area of expertise when he considered whether the evidence established that the contract was willfully or intentionally violated. Further, the evidence of willful or intentional violation was the same as the evidence Wilson submits here. Based on that evidence, the arbitrator concluded that there was no willful or intentional violation of the contract. Because FOP directly asked the arbitrator to rule on Chiefs alleged reliance on the refused polygraph examination, his ruling necessarily implied a conclusion that there was no willful or intentional violation of the policy on polygraph examinations. In fully analyzing City’s stated reasons for terminating Wilson, the arbitrator also impliedly denied FOP’s assertion that Wilson’s termination was solely for refusing to take' the polygraph examination.

¶ 14 Wilson is precluded from relitigating the issue of whether his termination was made in willful or intentional violation of the policy on polygraph examinations. If there was no willful or intentional violation of the policy on polygraph examinations, there can be no malicious violation of that policy. The issue was fully litigated during arbitration and the parties had a full and fair opportunity to present their arguments. Under these circumstances, the arbitration can be the basis of issue preclusion. For the purposes of this summary judgment, even if Wilson’s employment was terminated in part because Chief believed he had refused to take a polygraph examination, that decision was not made in willful, intentional, or malicious violation of the policy. That factual determination is final.

II

¶ 15 The next issue we consider is whether Chief was outside the scope of his employment, rendering him personally liable on Wilson’s tort claims of defamation and tortious interference with his employment. Both of Wilson’s claims against Chief fall within the Governmental Tort Claims Act. 51 O.S.2001 & Supp.2003 §§ 151-200. If Chief was operating within the scope of his employment, he cannot be held personally liable and should not have been named in this lawsuit. See Carswell v. Okla. State Univ., 1999 OK 102, ¶ 17, 995 P.2d 1118, 1123; 51 O.S.2001 § 163(C). “Scope of employment” is defined as “performance by an employee acting in good faith within the duties of the employee’s office or employment or of tasks lawfully assigned by a competent authority.” 51 O.S. Supp.2003 § 152(9). An employee’s acts are not in the scope of employment if the employee acted with malice or in bad faith. Pellegrino v. State ex rel. Cameron Univ., 2003 OK 2, ¶ 4, 63 P.3d 535, 537.

¶ 16 Chief cannot be held personally liable for Wilson’s claims for several reasons. First, we have already determined that Wilson cannot relitigate the arbitrator’s determination that the contract was not violated willfully or intentionally. Since the violation of the contract was premised on Chiefs ultimate decision to terminate Wilson, this precludes a finding of malice on his part. Moreover, City admitted in its answer that Chief was acting within the course and scope of his employment and never sought to escape its potential liability for Chiefs actions. City is bound by that admission.

¶ 17 Further, Wilson has not alleged any facts that would support a finding of malice. Even if Chief terminated Wilson in violation of the policy regarding polygraph examinations, that fact alone does not take him outside of his scope of employment. “If an employee acts in bad faith and contrary to the interests of the employer in tampering with a third party’s contract with the employer,” the employee may be considered to be acting outside the scope of his employment. Martin v. Johnson, 1998 OK 127, ¶ 32, 975 P.2d 889, 896-97 (emphasis added).

¶ 18 Wilson has alleged only that Chief decided to terminate his employment because he refused to sign the liability waiver, effectively refusing to take the polygraph examination. While such a decision would have been in violation of policy and the contract, Wilson alleges no further basis for concluding that Chiefs decision was made maliciously. In Oklahoma, malice means “gross recklessness.” Burk v. K-Mart Corp., 1989 OK 22, n. 11, 770 P.2d 24 (Opala, J., and Lavender, J., concurring in part and dissenting in part). There is no evidence that Chiefs decision was made with gross recklessness. Indeed, the arbitrator’s opinion holds otherwise. Moreover, there is no evidence that Chiefs decision was made with any degree of malicious intent toward Wilson, even if it was made in violation of the department’s policy on polygraphs.

¶ 19 Acting in good faith and using poor judgment are not mutually exclusive and the use of poor judgment does not, without more, exceed the scope of employment. Martin, 1998 OK 127, ¶ 33, 975 P.2d at 896-97. In Martin, the Oklahoma Supreme Court considered at which point an officer could be determined to have tortiously interfered with his employer’s contract to the degree that he is personally liable. The Court concluded that it is not tortious for an officer to interfere with a contract between his employer and another if it is done “by fair means,” with “honest intent,” and to better the employer’s own business and “not to principally harm another.” Id. at ¶ 31, 975 P.2d at 896 (quoting Mason v. Okla. Turnpike Auth., 115 F.3d 1442, 1453 (10th Cir. 1997) (quoting Morrow Dev. Corp. v. Am. Bank & Trust, 1994 OK 26, n. 21, 875 P.2d 411)). The officer’s action cannot be characterized as malicious or in bad faith based only on the fact of the interference with the contract. Martin, 1998 OK 127, ¶ 33, 975 P.2d at 897. Here, the record is devoid of other evidence regarding Chiefs behavior or intentions toward Wilson in this context or any other. There is, therefore, no legal basis for concluding that Chief acted outside the scope of his employment.

Ill

¶ 20 We next consider Wilson’s claim that he was terminated in violation of Oklahoma’s public policy. A claim for wrongful discharge in violation of public policy is available only to at-will employees. Barker v. State Ins. Fund, 2001 OK 94, ¶ 14, 40 P.3d 463, 468. The Supreme Court has recently reiterated that this cause of action was created as an equitable remedy to balance the doctrine of employment-at-will and as an exception to that generally accepted doctrine. Silver v. CPC-Sherwood Manor, Inc., 2004 OK 1, ¶ 4, 84 P.3d 728, 729. Police officers are not at-will employees. Fraternal Order of Police, Lodge 108 v. City of Ardmore, 2002 OK 19, ¶¶ 6-8, 44 P.3d 569, 571-72.

¶ 21 Wilson relies on two cases considering retaliatory discharge in violation of the Workers’ Compensation Act to argue that a claim for wrongful termination is also available to workers who can only be fired for cause. Hall v. ConAgra Foods, Inc., 2002 OK CIV APP 84, 53 P.3d 432; and Redricks v. Indus. Vehicles Int’l, Inc., 2002 OK 13, 45 P.3d 416. Those cases address the prohibition of discharge in retaliation for filing a workers’ compensation claim, a statutory right far more broadly drawn than has ever been recognized in the context of a common law wrongful discharge claim. 85 O.S.2001 § 5(A). While those eases discuss wrongful discharge as part of their general analysis of the employer’s conduct, they do not support a conclusion that the common law tort of wrongful discharge in violation of public policy has been extended to non-at-will employees. As a contract employee who cannot be terminated without cause, Wilson had no claim for discharge in violation of public policy and the district court properly determined that this portion of his claim failed as a matter of law.

IV

¶22 We next consider whether the press release regarding Wilson’s termination was defamatory. “A communication is defamatory if it tends to so harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” Herbert v. Okla. Christian Coalition, 1999 OK 90, n. 4, 992 P.2d 322; see also 12 O.S.2001 § 1441. As a public official, Wilson had to prove that the press release was published “with actual malice (with knowledge that it was false or with reckless disregard of whether it was false).”' Gaylord Entm’t Co. v. Thompson, 1998 OK 30, n. 46, 958 P.2d 128. The existence of actual malice is a question of law for the court to determine and must be established by clear and convincing evidence. Herbert, 1999 OK 90, ¶ 18, 992 P.2d at 328.

¶ 23 The press release issued on February 3, 2000, stated:

Officer Terminated for Alleged Theft
Officer Brian C. Wilson a 4-year veteran of the Tulsa Police Department was terminated today for issues regarding the alleged theft of money and truthfulness after the fact. The termination is the result of an incident, which occurred on November 28th, 1999 and involved the arrest of a domestic violence suspect.
This person reported the alleged theft of $300.00 from his personal property.
Officer Wilson is accused of being in violation of the following TPD Rules and Regulations:

Rule 3: DUTY TO KNOW, ENFORCE, AND OBEY LAWS AND ORDINANCES

Rule 6: DUTY TO BE TRUTHFUL AND OBEDIENT

City argues that the press release was accurate and was not published with malice. We agree. The uncontested fact is that Wilson was officially terminated for the reasons stated in the press release. See 12 O.S.2001 § 1443.1(A)(Third). Even if Chief had another, privately-held and improper reason for concluding that Wilson was lying, there is no evidence that the reasons stated in the press release were not also true. There is simply no evidence of malice in the defamatory sense. See Gaylord, 1998 OK 30, n. 46, 958 P.2d 128.

The “actual malice” standard to be met by the public figure plaintiff is a formidable one. This Court has said that when public figures ... sue for libel or slander, their rights to recover are severely limited. “Actual malice” requires, for example, “false statements made with [a] high degree of awareness of their probable falsity.” Failure to conduct a thorough investigation is not a sufficient basis to establish actual malice. Negligence is not enough to rise to the level of “actual malice,” and malice may not be inferred simply from a showing that the publication was untrue.

Herbert, 1999 OK 90, ¶ 19, 992 P.2d at 328 (footnote; citations omitted). Based on the evidence presented, we cannot infer that Chiefs alleged improper motive was the only motive. This is the inference we would have to make to conclude that there was a question of fact regarding malice in the defamatory sense.

¶ 24 Moreover, the press release was made in accordance with Chiefs standard policy of communicating decisions regarding allegations of police wrongdoing to the press. This policy, while voluntary, was unquestionably in furtherance of Chiefs duty to foster and promote a “proactive relationship with the citizens of the City of Tulsa,” as set forth in his official job description. There is no evidence that the press release about Wilson’s termination was made for any other reason than standard policy. The press release was, therefore, privileged pursuant to 12 O.S.2001 § 1443.1(A)(Second) because it was made “[i]n the proper discharge of an official duty.” The element of “proper discharge” is not lost merely because some part of Chiefs decision may have been contrary to City’s official policy. See generally Martin v. Johnson, 1998 OK 127, ¶ 33, 975 P.2d 889, 897.

V

¶ 25 Finally, we consider Wilson’s allegation that his rights of free speech, based on the Oklahoma Constitution, were violated because he was terminated for refusing to sign the waiver. Article 2, § 22 of the Oklahoma Constitution provides, in pertinent part, the following:

Every person may freely speak, write, or publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.

A city is not generally liable for the acts of its employees under the theory of respondeat superior. Brander’s Club, Inc. v. City of Lawton, 1996 OK 66, ¶ 11, 918 P.2d 69, 72. For a municipality to be hable for a violation of the United States Constitution, the acts complained of must fairly be said to represent official policy. Id. We will apply this same standard to the Oklahoma Constitution’s guarantee of free speech.

¶26 It is arguable that Chief may be, under some circumstances, a policy-maker such that his actions could be construed as City’s policy. Barnthouse v. City of Edmond, 2003 OK 42, ¶ 30, 73 P.3d 840, 851-52. Here, however, City’s official policy was that a polygraph examination or the refusal to take a polygraph examination would not be the basis for any discipline. Wilson’s constitutional right of free speech was not violated by his termination, even if his termination was solely due to the polygraph examination issue, because that was not City’s policy.

CONCLUSION

¶ 27 The trial court did not err in granting summary judgment in favor of City and Chief in a police officer’s action for wrongful termination, violation of constitutional rights, defamation, and tortious interference with contract. There is no evidence that Chiefs actions, even if in violation of policy, were outside the scope of his employment so as to make him personally liable. Further, Wilson, who could be fired only for cause, has no claim for wrongful termination in violation of public policy because that tort is an exception to the doctrine of employment-at-will. Moreover, Wilson did not introduce evidence that the press release setting forth the official reasons for his termination was untrue or was done in reckless disregard of the truth. Finally, even if Chiefs decision to terminate Wilson was solely based on Wilson’s refusal to submit to a polygraph examination, that decision was not in accord with City’s policy and could not form the basis of a constitutional claim. The material facts were not contested and the issues confronting the district court were legal issues. Summary judgment, therefore, was appropriate.

¶ 28 AFFIRMED.

REIF, P.J., and RAPP, J., concur.

      . An arbitration award will not, however, preclude relitigation of a constitutional claim under the theory of claim preclusion where the arbitrator's consideration of the constitutional issue was necessarily limited. Ryan v. City of Shawnee, 13 F.3d 345 (10th Cir.1993). Where the issue is fully litigated during the arbitration and the parties had a full and fair opportunity to present their arguments, arbitration can be the basis of issue preclusion. Cities Serv. Co. v. Gulf Oil Corp., 1999 OK 14, ¶¶ 16-17, 980 P.2d 116, 125-26.

      . Although he denies he is in privity with FOP, Wilson relies on the arbitrator's decision to argue that he Was found innocent.

      . Unlike Carris v. John R. Thomas & Assocs., P.C., 1995 OK 33, ¶ 13, 896 P.2d 522, 528, where it was impossible to tell whether the arbitrator addressed the issue sought to be precluded.

      . Interestingly, FOP also argued that significant weight should be given to the fact that Wilson subsequently took and passed a polygraph examination using another examiner. The arbitrator declined to do so, but FOP’s position seems to advocate a violation of the policy just as Chiefs alleged decision would have been.

      . Because we reach the conclusion we do, we need not address Chiefs assertion that Wilson's claims against him are time-barred.

      . Wilson correctly asserts that malice in the defamatory sense is not the same as malice in the general sense as discussed elsewhere in this opinion.

      . City’s reliance on Hughes v. Bizzell, 1941 OK 277, 117 P.2d 763, however, is misplaced. The finding of absolute privilege in Hughes was based on the fact that the alleged defamatory comments were made to the Board of Regents during a session convened to consider the discharge of the plaintiff. The determining factor, therefore, was the venue in which the statements were made, not whether the defendants were acting in the proper discharge of their duties. Id. at ¶¶ 8-9, 117 P.2d at 765.

      . The Governmental Tort Claims Act, 51 O.S. 2001 & Supp.2003 §§ 151-200, is not applicable to constitutional claims. Brander’s Club, Inc. v. City of Lawton, 1996 OK 66, ¶ 8, 918 P.2d 69, 71.


text:
    2004 OK CIV APP 50
    In the Matter of W.A., An Alleged Deprived Child. State of Oklahoma, ex rel., Department of Human Services, Petitioner/Appellee, v. Carol Hushelpeck, Respondent/Appellant.
    No. 100,032.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    April 30, 2004.
    Carrie Griffith, Siloam Springs, AR, for Petitioner/Appellee.
    Nicholas P. Leleeas, Jay, OK, for Respondent/Appellant.
   Opinion by

BAY MITCHELL, Presiding Judge.

¶ 1 Carol Hushelpeck (Mother) appeals an order terminating her parental rights to her son, W.A. The case was tried to a jury resulting in a unanimous verdict that her parental rights should be terminated. Deficiencies in the termination order, however, require that it be vacated.

¶ 2 W.A. was born on October 22, 2000. A “deprived” petition was filed in January, 2003. Mother stipulated to the allegations therein and W.A. was adjudicated deprived in March, 2003. The next month a dispositional order was entered adopting the treatment plan recommended by the Department of Human Services (DHS). The petition to terminate Mother’s parental rights was filed August 1, 2003. The statutory ground alleged for termination was Mother’s failure to correct the conditions which led to the child’s adjudication (10 O.S.2001 § 7006-1.1(A)(5)). It was ^lleged that the termination would be in W.A.’s best interests.

¶ 3 As noted above, the jury found Mother’s parental rights should be terminated. The jury made no findings, nor did the verdict form require any. The judgment on jury verdict made no additional findings and merely ordered Mother’s parental rights terminated.

¶ 4 On appeal, Mother contends the termination order is fundamentally deficient because it lacks statutorily required findings. She also contends termination is not supported by clear and convincing evidence and that the child’s rights were violated by the trial court allowing child’s attorney to be elsewhere during the reading of jury instructions and closing arguments. We review factual findings by the clear-and-convincing-evidence standard. Matter of S.B.C., 2002 OK 83, ¶ 7, 64 P.3d 1080. Legal errors, of course, are reviewed de novo.

¶ 5 On the first proposition, Mother is correct. Division 3 addressed this issue most recently in Matter of M.D.R., 2002 OK CIV APP 75, 50 P.3d 1160. It held, consistent with previous decisions, that an order terminating parental rights must “identify the specific statutory basis relied on” and must “contain the specific findings required by that statutory provision.” Id. at ¶ 7, 50 P.3d at 1161. The Journal Entry of Judgment here is completely lacking in that regard. In the absence of the required findings, “we are effectively precluded from determining if the trial court acted properly in terminating ... parental rights.” Matter of E.M., 1999 OK CIV APP 32, ¶ 13, 976 P.2d 1098, 1102 (quoting from Matter of B.M.O., 1992 OK CIV APP 89, ¶ 10, 838 P.2d 38, 40).

¶ 6 The order terminating Mother’s parental rights is vacated and this matter is remanded to the trial court for further action consistent with this opinion. It is unnecessary to address Mother’s remaining allegations of error.

¶ 7 VACATED AND REMANDED.

HANSEN, J., and JOPLIN, J., concur.

      . The treatment plan required Mother to: maintain adequate housing and utilities on a monthly basis; maintain regular employment; locate, enroll, and complete age-appropriate parenting classes; sign all release of information forms in order for DHS to monitor progress; pay child support as ordered by the court; continue taking medication for depression; continue counseling services to monitor chronic depression; visit with the child as ordered by the court or to develop a visitation schedule with the child welfare worker assigned to the case; sign releases of information to enable DHS to exchange information with providers of services and/or treatment to the family; initiate and maintain contact with the child welfare worker assigned to the case a minimum of one time per month or as ordered by the court; and, attend and participate in any scheduled permanency planning review.

      . Those previous decisions are Matter of L.S., 1990 OK CIV APP 94, 805 P.2d 120; Matter of E.M., 1999 OK CIV APP 32. 976 P.2d 1098: and Matter of B.M.O., 1992 OK CIV APP 89, 838 P.2d 38.


author: CAROL M. HANSEN, Judge: Bay Mitchell, Presiding Judge:

text:
    2004 OK CIV APP 51
    Jewell A. DYER, Plaintiff/Appellant, v. EMERGENCY CARE, INC., an Oklahoma corporation, and Mark Brandenburg, M.D., Defendants/Appellees, and Saint Francis Hospital, an Oklahoma corporation, Defendant.
    No. 97,917.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    May 7, 2004.

      Glenn R. Beustring, Glenn R. Buestring & Associates, and Joan Godlove, Tulsa, OK, for PlaintiffiAppellant.
    William A. Fiasco, Marthanda J. Beck-worth, Atkinson, Haskins, Nellis, Holeman, Phipps, Brittingham & Gladd, Tulsa, OK, for Defendants/Appellees.
   Opinion by

CAROL M. HANSEN, Judge:

¶ 1 In this action which was tried on issues of medical negligence, Appellant, Jewell Dyer (Dyer), appeals from the trial court’s order disposing of [a] the parties’ post-trial opposing motions to compel the other to pay the fees of experts who testified live at trial, and [b] Dyer’s post-trial motion seeking an order to require one of those experts to “disgorge” part of the fee Dyer paid for his deposition during discovery. The trial court found against Dyer and in favor of Appellees, Emergency Care, Inc. and Mark Brandenburg (collectively Appellees), as to all motions.

¶ 2 During the discovery phase of the case, Dyer identified Dr. Cary Bartlow (Bartlow) as a retained expert to testify on a “Life Care Plan” for Dyer and regarding future economic loss she would suffer as a result of permanent blindness. Appellees retained Dr. Anthony Billings (Billings) as an expert on neurosurgical issues. Dyer deposed Billings and Appellees deposed Bartlow. Both depositions were videotaped under a standing order which allowed all depositions to be videotaped.

¶ 3 Before taking Billings’ deposition, Dyer objected to, among other things, Billings’ expert witness fee to be deposed. Dyer argued the fee was “unreasonable” within the meaning of 12 O.S.2001 § 3226(B)(3)(c)(l), which provides “[t]he court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery.” The trial court denied Dyer’s motion to set reasonable expert witness fees and Dyer paid the fee demanded by Billings for his deposition.

¶ 4 Prior to trial, Dyer indicated she would use the video tape of Bartlow’s deposition at trial in its entirety and would use parts of Billings’ videotaped deposition, but would call neither to appear for live testimony. Appel-lees, who had not endorsed Billings as a witness in the pretrial conference order, subpoenaed Bartlow and Billings to appear at trial. Over Dyer’s objections, Appellees were allowed to call both for cross-examination during Dyer’s case-in-chief immediately after their respective depositions had been played. Appellees tendered the standard statutory witness fee for attendance and mileage when the subpoenas were served on Bartlow and Billings.

¶ 5 After their appearances at trial, both Bartlow and Billings sent invoices to Appel-lees for their expert witness fees for the trial. Appellees declined to pay Bartlow’s fees, suggesting he seek compensation from Dyer on the basis that he was Dyer’s witness. Appellees did pay Billings, but demanded reimbursement from Dyer on the same basis that Bartlow’s invoice was refused. Dyer filed her motion to compel Appellees to pay Bartlow’s fees. Appellees then filed their motion to compel Dyer to pay for Billings’ fees. Dyer responded to Appellees’ motion to compel with a “cross-motion” to “disgorge excessive fees” paid to Billings for his discovery deposition. As noted above, the trial court found in favor of Appellees on all motions and Dyer filed this appeal.

¶ 6 Here on appeal Dyer contends the trial court erred in its determinations on the two motions to compel payment of expert witness fees and on her motion to require Billings to disgorge a portion of his allegedly unreasonable fee for being deposed. In that expert witness fees “are only recoverable when specifically made so by statute”, Andress v. Bowlby, 1989 OK 78, 773 P.2d 1265, legal questions regarding statutory interpretation are necessarily implicated in our consideration. In such cases, our review is de novo. Heffron v. District Court Oklahoma County, 2003 OK 75, 77 P.3d 1069. With respect to the reasonableness of expert witness fees, that determination is a matter of discretion for the trial court. R.J.B. Gas Pipeline Co. v. Colorado Interstate Gas Co., 1990 OK CIV APP 47, 813 P.2d 14. We may not reverse a trial court determination for abuse of discretion unless we find the court “made a clearly erroneous conclusion and judgment, against reason and evidence.” Green Bay Packaging, Inc. v. Preferred Packaging, Inc., 1996 OK 121, 932 P.2d 1091.

¶ 7 We find merit in Dyer’s contention the trial court erred in ordering her to pay Billings’ expert witness fees for his live appearance at trial. At the time Dyer deposed Billings, he had been retained by Ap-pellees as an expert in neurosurgery. After Billings had been examined by Dyer’s counsel at the deposition, Appellees’ counsel chose to ask only three questions on cross-examination. Appellees’ counsel then stated on the record that Appellees would “reserve the rest of our examination until trial.” Dyer’s counsel then asked a few questions on redirect before concluding the deposition.

¶8 Appellees’ counsel made a considered decision not to make a complete record on Billings’ cross-examination at the deposition, apparently expecting to elicit Billings’ expert opinion as Appellees’ witness at trial. He did so as a matter of legal strategy. Although we find no authority directly on point with the question before us, federal courts have concluded, in analogous circumstances, that a party’s decision to limit cross-examination in a discovery deposition is a “strategic choice” and “calculated risk”. Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492 (11th Cir.1985).

¶ 9 In Hendrix, one party was opposing, pursuant to Fed.R.Civ.P. 804(b)(1), introduction of a discovery deposition at which it had not cross-examined the deponent. Rule 804(b)(1) provides that the deposition testimony of an unavailable witness is not excludable hearsay if the opposing party “had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.” The opposing party in Hendrix argued it had not been motivated to cross-examine the deponent because “the deposition was taken for discovery purposes only.”

¶ 10 The Hendrix Court, at 1506, noted the decision not to cross-examine was a “strategic choice” which did not preclude the adversary’s use of the deposition at a subsequent proceeding. Citing Gill v. Westinghouse Electric Corp., 714 F.2d 1105 (11th Cir.1983), the Hendrix Court further noted in its reasoning that pretrial depositions are not only intended as a means of discovery, but also serve to preserve relevant testimony that might otherwise be unavailable for trial.”

¶ 11 Here, Appellees argue Dyer should be liable for the cost of Billings’ expert witness fees because Dyer utilized Billings’ deposition at trial and Appellees had a right to cross-examine Billings at trial also. We agree Appellees had the right to subpoena Billings for cross-examination under 12 O.S. 2001 § 3232(A)(3), which provides, inter alia, that the deposition of an expert witness “may be used for any purpose”, but expressly does not limit issuance of a subpoena “to compel an expert witness to appear in the same manner as any other witness.” We do not agree, however, that Dyer should be responsible for the expense of Billings’ live testimony where Appellees made the tactical decision not to cross-examine Billings with the knowledge that the deposition could be used by Dyer at trial under § 3232(A)(3).

¶ 12 In an argument similar to that raised in Hendrix, Appellees assert they would have acted differently in examining Billings if the deposition had been a trial deposition rather than a discovery deposition. However, § 3232, which authorizes use of depositions in court proceedings, does not differentiate between trial and discovery depositions. In fact, the difference on which Appellees rely is more the result of normative legal practice rather than any statutory prescription.

¶ 13 Section 3232 generally allows use of any part of or all of a deposition, otherwise admissible under the Evidence Code, “against any party who was present or who was represented at the taking of the deposition or who had reasonable notice thereof.” Thus, depositions may not be used for any of the purposes allowed under § 3232 unless the party against whom it is going to be used had, at a minimum, the opportunity to be present and examine the deponent. The decision whether to take advantage of that opportunity is one for the party put on notice.

¶ 14 Appellees were represented at Billings’ deposition and are charged with the knowledge that the deposition could be used at trial by Dyer even though its purpose at the time was for discovery. Appellees made the “strategic choice” to defer, any further examination of Billings until trial, at the time knowing they would be responsible for the expert witness fees when they called him. They may not now shift the burden of those fees to Dyer when they could have cross-examined Billings at the deposition.

¶ 15 In choosing to defer a complete examination of Billings, presumably to avoid further disclosure of his expected testimony, Appellees assumed the risk of having to pay for the testimony if Billings had to be called live at trial. Appellees are not deprived of their right to cross-examine Billings, but they must bear the expense resulting from their choice. Appellees concede expert witness fees may not be assessed as litigation costs, unless specifically authorized by statute. See, Dulan v. Johnston, 1984 OK 44, 687 P.2d 1045. We have not been made aware of any statutory authority to assess such costs here. The trial court erred in ordering Dyer to pay Billings’ expert witness fees for his appearance at trial under Appel-lees’ subpoena.

¶ 16 With respect to Bartlow, the facts are somewhat different, but in our view the consequences are the same as with Billings. Bartlow was Dyer’s retained expert and was deposed by Appellees. Appellees therefore had the opportunity to fully examine Bartlow at the deposition. Additionally, calling Bartlow at trial after his videotaped deposition had the curious effect of Appellees “cross-examining” their own direct examination at the deposition. In any event, as with Billings’ deposition, Appellees were charged with the knowledge that Bartlow’s deposition could be used at trial and had the opportunity to expand the deposition examination as necessary to make a complete record.

¶ 17 Dyer chose to stand on Bartlow’s deposition testimony, at which Appellees were not only represented but were able to fully examine the deponent. Appellees’ choice to subpoena Bartlow for “cross-examination” at trial was their prerogative' under § 3232(A)(3), but they may not shift the cost of doing so to Dyer.

¶ 18 We are not, however, persuaded by Dyer’s third contention of trial court error. She asserts the trial court should have ordered Billings to disgorge a portion of his expert witness fees for his deposition appearance. She argues $4,200.00 for approximately five hours of deposition testimony is unreasonable because it was, according to her calculations, eight times more than Billings would have received for performing professional services as a neurosurgeon in a comparable period of time.

¶ 19 Pursuant to 12 O.S.2001 § 3226(B)(3)(e)(1), unless manifest injustice would result, a party seeking discovery must pay experts a “reasonable fee” for time spent responding to the request. What is a reasonable fee is not defined by the Discovery Code, and has not been defined by our courts. In Drake v. Wal-Mart, Inc., 1994 OK CIV APP 47, 876 P.2d 738, the Court of Civil Appeals, citing Anthony v. Abbott Laboratories, 106 F.R.D. 461 (D.R.I.1985), articulated that in setting a reasonable expert witness fee:.

... the ultimate goal is balance, so that parties will not be hampered in their efforts to .attract competent experts, while at the same time the opposing parties will not be burdened by excessive fees which produce windfalls for the experts.

¶ 20 The Drake Court found Anthony distinguishable because the expert in the latter case had charged a “friendly” litigant less than what was billed in Anthony, the expert had no “discernible overhead”, and the record contained no indication of “manifest inconvenience or consequential loss” to the expert. There was evidence the Drake expert did incur “material inconvenience and possible financial loss”, and there was no evidence the expert had charged “friendly” litigants less. The Drake Court held, under the circumstances, a fee of $2,500.00 for four hours and twenty minutes of deposition time and one and one half hours spent responding to discovery requests was not unreasonable.

¶ 21 Appellees produced evidence that other neurosurgeons in the area charged similar or higher fees than Billings demanded here, and also increased their fees if thé deposition was to be videotaped. There was no evidence Billings charged other litigants less or otherwise engaged in discriminatory practices in his fees for discovery. We find no authority for Dyer’s contention that Billings should be restricted in his expert fees for discovery to an equivalent of the amount he might make for the same period of time in his regular medical practice. The trial court had a sufficient basis for determining what was a “reasonable fee” within the meaning of § 3226(B)(3)(c)(1). There was no clearly erroneous conclusion arid judgment, against reason and evidence, such as to evidence an abuse of discretion. Green Bay Packaging, Inc. v. Preferred Packaging, Inc., 932 P.2d at 1097.

¶22 Those portions of the trial court’s order denying Dyer’s motion to .compel Ap-pellees to pay Bartlow’s expert witness fees, and granting Appellees’ motion to compel Dyer to pay Billings’ expert witness fees, are REVERSED. The remainder of the trial court’s order is AFFIRMED. Dyer’s request for appellate attorney fees is DENIED.

JOPLIN, J., concurs; and MITCHELL, P. J., concurs in part and dissents in part with a separate opinion.

Opinion by

Bay Mitchell, Presiding Judge:

Concurring in Part; Dissenting in Part.

¶ 11 dissent because I believe the majority fails to recognize the difference between discovery depositions and trial depositions. This ignores the practical and very real distinctions between the two. I would affirm the trial court’s decision in all respects.

¶2 Originally, Brandenburg retained Dr. Billings as an expert witness. -Later, Dyer took Dr. Billings’ discovery deposition. Pri- or to the pretrial conference, Brandenburg decided not to call Dr. Billings as a witness, and did not list him as a witness on the final Pretrial Order. Dyer, however, designated portions of Dr. Billings’ deposition testimony to present to the jury in her case-in-chief. Brandenburg’s counsel then issued a trial subpoena to Dr. Billings so he could cross-examine Dr. Billings live immediately following Dyer’s presentation of parts of his deposition testimony. At trial, Dyer did use portions of Dr! Billings’ video discovery deposition in her case-in-chief. Brandenburg then cross-examined the subpoenaed Dr. Billings live.

¶ 3 The deposition Dyer introduced at trial was a discovery deposition taken by Dyer’s counsel. Obviously, the motives of a party to conduct a full examination of its own retained expert are much different in a discovery deposition than in a trial deposition. During this discovery deposition, Brandenburg’s counsel did not have any need to ask discovery questions of his own expert, because he did not need to discover Dr. Billings’ opinions. Although certain discovery depositions may be used at trial, these depositions are not generally conducted formally or with the expectation that the witness will not be available for trial. During discovery depositions, attorneys routinely make the tactical decision to not cross-examine and thereby reveal their trial strategies. A trial deposition, on the other hand, is normally conducted by the party who retained the expert, and is conducted with all the formalities of trial because the parties assume the deposition will be used at trial in place of the expert’s live testimony. The opposing party conducts the cross-examination just as if they were in trial, and all objections are generally made at the time the deposition is taken. Another distinction is that a discovery deposition is paid for by the party seeking or doing the discovery pursuant to 12 O.S. Supp.2002 § 3226(B)(3)(c), while a trial deposition is paid for by the party who retained the expert and is seeking to preserve his testimony for use at trial in his case-in-chief.

¶4 Here, Brandenburg clearly did not have the motive to conduct a full cross-examination during Dyer’s discovery deposition of Dr. Billings. It is clear from Dr. Billings’ deposition that it was never intended to be a trial deposition, even though it was videotaped. There is no rule requiring parties to ask cross-examination questions of their experts in routine discovery depositions or lose their opportunity to “cross-examine” these witnesses at trial. Cross-examination of an expert witness is an important right.

¶ 5 As to who should be required to pay for Dr. Billings’ trial testimony, under these unique circumstances the trial court did not err in requiring Dyer to pay. Dyer contends Dr. Billings was originally retained by Brandenburg, and Brandenburg had issued the trial subpoena, thereby “voluntarily incurring” Dr. Billings’ expert witness fees as an expense of litigation. However, Dyer chose to call Dr. Billings as a witness in her casein-chief, even after being made aware by the trial judge that Dr. Billings would then be considered her witness. If Dyer had not called Dr. Billings by deposition, he would not have been a witness at all at trial and there would be no witness fee to argue about. It was Dyer’s voluntary act of using Dr. Billings’ deposition testimony in her case-in-chief that caused these fees to be incurred. In all important respects, Dr. Billings was Dyer’s expert at trial.

¶ 6 In general, the party who calls an expert to testify at trial is responsible for paying all of that expert’s witness fees, including those incurred during cross-examination. See generally, Finnell v. Jebco Seismic, 2003 OK 35, ¶ 11, 67 P.3d 339, 343 (emphasizing that absent a statute, contractual provision or the court’s power to assess expenses incurred in litigation-related misconduct, “every litigant is responsible for his (or her) own litigation costs ... ”); McCoy v. McCoy, 1967 OK 86, ¶¶ 37, 47, 429 P.2d 999, 1011-12 (including expert witness fee and preparation for trial testimony as a litigation expense incurred by the party presenting that witness, but noting that expense could be shifted in a divorce action based on the status of the parties). Thus, the fact that Brandenburg issued the subpoena for Dr. Billings is irrelevant, because he was subpoenaed solely for the purpose of cross-examination. Further, the fact that Dr. Billings was initially Brandenburg’s retained expert is also irrelevant because Brandenburg decided not to use Dr. Billings as an expert and removed him from his witness list no later than the last pretrial conference. Instead, it was Dyer who utilized Dr. Billings’ testimony in her case-in-chief, and it was not contrary to law for the trial court to require her to pay all the expert witness fees associated with calling Dr. Billings as a witness, including his fees for testifying live for cross-examination.

¶ 7 Similar reasoning applies to Dr. Bart-low’s witness fees. Dr. Bartlow was Dyer’s expert witness who was retained to develop a “Life Care Plan” and testify regarding future economic loss caused by Dyer’s permanent blindness. Brandenburg took Dr. Bartlow’s discovery deposition, which Dyer presented at trial in its entirety during her case-in-chief pursuant to 12 O.S.2001 § 3232(A)(3)(e). Dr. Bartlow was subpoenaed by Brandenburg to testify live for cross-examination. Dr. Bart-low charged $1,486.77 for his live trial testimony and associated expenses, which the trial court ordered Dyer to pay.

¶ 8 The trial court’s treatment of Dr. Bart-low’s fees was consistent with its treatment of those of Dr. Billings. When either party uses a discovery deposition in its case-in-chief, the other side, in order to conduct a meaningful and effective cross-examination may call the witness to testify live, and any witness fees incurred will be the responsibility of the party who used the witness in its case-in-ehief. The trial court did not err by requiring Dyer to pay for the cross-examination of her own expert witness that she presented during her case-in-chief by deposition. No authority is cited, nor do we find any, that would obligate a party to pay for the right to cross-examine the opposing party’s witness.

¶ 9 For these reasons, I dissent to the majority’s opinion reversing the trial court’s order that Dyer should pay the witness fees of Dr. Billings and Dr. Bartlow for testifying live at trial. In all other respects, I concur.

      . Appellant Jewell Dyer filed a separate Petition in Error' — Appeal No. 97,407 — from judgment in favor of Appellees on her medical negligence claim. The substantíve questions from that appeal are not at issue here.

      . Federal counterpart of 12 O.S.2001 § 2804(B)(10).

      . See also, Henkel v. XIM Products, Inc., 133 F.R.D. 556 (D.Minn.l991)(protective order was issued against deposing witness again after discovery period had ended and party had refrained from examining deponent who was beyond subpoena power of court.)

        .Compare with, Hall v. Brookshire Bros. Ltd., 831 So.2d 1010 (La.App. 3 Cir.2002)(Under Louisiana statutoiy scheme [La.Code Civ. P. art. 1450(A)(5)] a party may object to use of expert deposition and require live testimony, however, the objecting party must pay in advance the fee, reasonable expenses and actual costs associated with such live testimony.)

      . See, Henkel v. XIM Products, Inc., 133 F.R.D. at 557 (Neither the Rules of Civil Procedure nor the Rules of Evidence make any distinction between discovery depositions and depositions for use at trial.)

      . It should be emphasized that if these depositions had been trial depositions instead of mere discoveiy depositions, a different result would be required.