author: BAY MITCHELL, Presiding Judge:

text:
    2004 OK CIV APP 33
    In the Matter of S.S., a deprived child, Laura Sparks Sweetin, Appellant, v. State of Oklahoma, Appellee.
    No. 98,576.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    March 12, 2004.

      Letitia D. Kinsey, Kinsey & Associates, Oklahoma City, OK, for Appellant,
    Timothy D. Kuykendall, District Attorney, Robin K. Wilson, Assistant District Attorney, Norman, OK, for Appellee.
   Opinion by

BAY MITCHELL, Presiding Judge:

¶ 1 Laura Sparks Sweetin, the natural mother of S.S., an adjudicated deprived child, appeals from an order terminating her parental rights following a non-jury trial. Mother argues she is entitled to a new trial because she was deprived of her right to be represented by counsel and of her right to a jury trial. Because Mother was deprived of her fundamental right to effective assistance of counsel when her parental rights were terminated, we find that the trial court abused its discretion by refusing to continue the trial, and reverse and remand for a new trial.

¶ 2 In May 2000, DHS took the minor child S.S. into protective custody when they discovered she had a spiral fracture of her right tibula. Mother stipulated that S.S. was a deprived child on May 24, 2000. S.S.’s father was later convicted of the abuse and relinquished his parental rights. Mother initially requested and received court-appointed counsel on May 11, 2000. It appears this attorney withdrew, however, and Letitia Kinsey was appointed as Mother’s counsel on December 19, 2000. Ms. Kinsey represented Mother for the remainder of these proceedings and also represents Mother on appeal.

¶ 3 On November 28, 2001, the State filed a motion to terminate Mother’s parental rights based on her failure to correct the conditions which led to the adjudication and that S.S. had been in foster care for at least fifteen of the most recent twenty-two months. The termination hearing was originally set for jury trial on February 25, 2002. However, on February 22 Mother appeared through counsel and waived her right to a jury trial, and the court set the non-jury trial for April 3, 2002. Later, by agreement of all parties, the non-jury trial was rescheduled for June 5, 2002. Mother’s attorney filed a motion for continuance on May 31, 2002 because she was recovering from surgery. The case then appears to have been continued to October 30, 2002. Each time the trial was rescheduled, the court order noted that it was set for non-jury trial.

¶ 4 On October 25, 2002, five days before trial, Mother’s counsel filed a “Motion to Advise Courts of Potential Conflict.” The case style and number were for a criminal case in Murray County and presumably it was filed there. It was also filed in the instant case. In that pleading Counsel stated she had a criminal jury trial set on October 29 in Murray County that was “set first in time”. The pleading asked both courts to communicate directly and permit a continuance of the non-priority case. It stated that if she (Mother’s attorney) “does not have notice otherwise,” she intended to appear at the criminal trial in Murray County instead of this trial.

¶5 Mother’s counsel makes several allegations in her brief that the State promised a continuance would be granted and that she had tried to contact the judge in this case on several occasions prior to trial. However, these allegations are not supported by any citation to the record or even an attorney’s affidavit and cannot be considered as evidence on appeal. See Matter of Rich, 1979 OK 173, ¶ 15, 604 P.2d 1248, 1253 (noting reviewing court is confined to the record and cannot accept an argument for which there is no foundation in the appellate record).

¶ 6 Mother’s counsel never requested a hearing on her motion, and this matter was not argued until October 30th, the day of the trial. Both the State and the eourt-appoint-ed counsel for the minor child objected to another continuance. Mother’s counsel chose to appear at the Murray County criminal trial, but sent another attorney from her office on the morning of trial in the instant case for the sole purpose of requesting a continuance. Mother’s substitute counsel advised the court that she was not familiar with the case, and that if the court did not grant the continuance, Mother would have to proceed with trial pro se. The trial court nonetheless denied the request for a continuance and stated the trial would begin that afternoon at 1:30 p.m. After opening statements and the testimony of four of the State’s seven witnesses, a second substitute counsel from Ms. Kinsey’s office arrived to represent Mother. This attorney was completely unfamiliar with the case and was only given a short time to determine what had transpired thus far at trial and speak with Mother before the trial continued. At the conclusion of this non-jury trial Mother’s parental rights were terminated.

¶ 7 Mother argues on appeal that she was denied due process when the trial court refused to continue the trial, forcing her to proceed pro se for approximately half of the trial, and then with an unprepared substitute counsel for the remainder of the trial. Mother’s counsel, the same court-appointed attorney who failed to attend the trial, does not raise on appeal the issue of ineffective assistance of counsel. However, if a fundamental constitutional right is violated, it is the duty of this Court to raise the issue sua sponte. In re Adoption ofF.R.F., 1994 OK CIV APP 9, ¶ 11, 870 P.2d 799, 802. Further, we find that this argument was implicit in Mother’s argument that she was denied her right to counsel when she was forced to proceed pro se. The State counters that Mother’s due process rights were not violated because she was adequately represented by the substitute counsel. The State also asserts it had a compelling interest in providing permanency to the minor child, which was sufficient justification to proceed with trial with Mother being unrepresented. Finally, the State contends that Mother’s counsel did not properly request a continuance and did not have a true conflict that prevented her from attending this trial.

¶ 8 A proceeding to terminate parental rights threatens to end the parent-child relationship, which is a fundamental right protected by the due process clause of the Oklahoma Constitution, Art. 2, § 7. In re D.D.F., 1990 OK 89, If 13, 801 P.2d 703, 706. Oklahoma law clearly provides that parents are entitled to representation by counsel at these trials, including court-appointed counsel if they are indigent. In re Chad S., 1978 OK 94, ¶¶ 11-12, 580 P.2d 983, 985; see also 10 O.S.2001 § 7003-3.7(A)(l) (requiring court-appointed counsel for indigent parent in parental termination proceeding if requested). The Oklahoma Supreme Court has emphasized the necessity of counsel at these hearings, stating:

The deprivation of these rights is a serious matter, and failure to provide counsel may result in a deprivation of due process.... [S]uch proceedings shall not be held without the parents having an opportunity to be represented by counsel.

In re D.D.F., ¶¶ 13-14, 801 P.2d at 706-07 (emphasis added).

¶ 9 Due to the fundamental rights involved, a child deprivation proceeding “requires that the full panoply of procedural safeguards must be applied ... including] the right to counsel.” In re Chad S., ¶ 12, 580 P.2d at 985. The Oklahoma Supreme Court has compared this proceeding with a criminal trial, stating:

While a dependency proceeding is not a criminal proceeding, it is substantially similar. The state is the initiating party, the proceeding is formal, and the potential loss is quite substantial. Since the state is threatening the deprivation of a fundamental interest, it must provide counsel to indigent parents unless it can demonstrate a compelling state interest in not providing counsel.

Id. at ¶ 13, 580 P.2d at 985-86 (quoting Davis v. Page, 442 F.Supp. 258 (S.D.Fla.1977) (emphasis added)). The failure to provide counsel during a parental termination proceeding is reversible error. Id. at ¶¶ 14-15, 580 P.2d at 986 (reversing an order terminating mother’s parental rights at a hearing when mother was not represented by counsel and had not been advised that the court would appoint counsel if she was indigent).

¶ 10 The fundamental right to counsel at a termination proceeding includes the right to effective assistance of counsel, because the right would be meaningless if counsel were not required to represent the parent “in a matter consistent with an objective standard of reasonableness.” In re D.D.F., ¶ 15, 801 P.2d at 707. Although the Oklahoma Supreme Court has not enunciated a standard for determining the effectiveness of counsel in termination proceedings, the Court of Civil Appeals has applied the standards used in criminal trials. In re R.S., 2002 OK CIV APP 90, ¶ 16, 56 P.3d 381, 384; In re K.L.C., 2000 OK CIV APP 98, ¶7, 12 P.3d 478, 480. We agree that the standards applied in criminal proceedings regarding effective assistance of counsel should apply to a proceeding to terminate parental rights. See In re Chad S., ¶ 13, 580 P.2d 983, 985-86 (comparing child dependency proceeding to criminal trial because in both proceedings, the State is threatening the deprivation of a fundamental interest).

¶ 11 To prove ineffective assistance of counsel, a parent must show both that the attorney’s performance was deficient, and that it prejudiced the defense. In re R.S., ¶ 16, 56 P.3d at 384. The reviewing court must look at the proceedings as a whole, and “[t]here is a strong presumption that counsel’s performance falls within the wide range of professional assistance.” Id. at ¶ 18, 56 P.3d at 384.

¶ 12 However, the “ ‘actual or constructive denial of assistance of counsel altogether is legally presumed to result in prejudice.”’ Young v. State, 1994 OK CR 84, ¶ 6, 902 P.2d 1089,1090 (emphasis added) (quoting Penson v. Ohio, 488 U.S. 75, 86, 109 S.Ct. 346, 353, 102 L.Ed.2d 300 (1988)). When a defendant is deprived of counsel, it is inappropriate to apply either the prejudice requirement or the harmless error analysis. Young, ¶ 6, 902 P.2d at 1090 (granting defendant new appeal where appellate counsel did not take any action, which resulted in a denial of assistance of counsel the same as if no counsel had been appointed). The United States Supreme Court has also stated that a complete denial of counsel at a critical stage of a criminal trial creates an unfair trial and requires reversal, emphasizing that it “has uniformly found constitutional error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding.” United States v. Cronic, 466 U.S. 648, 659 & n. 25, 104 S.Ct. 2039, 2047, 80 L.Ed.2d 657 (1984).

¶ 13 Here, it is undisputed that Mother did not have any counsel during at least half of the State’s case-in-chief. She was forced to proceed pro se for opening statements and during the State’s examination of four of its seven witnesses. Mother did not present an opening statement and was not able to effectively cross-examine any of these first four witnesses. Because Mother was deprived of her court-appointed counsel during a crucial portion of this trial, we will presume prejudice pursuant to Young v. State and find that Mother was denied her fundamental right to effective assistance of counsel.

¶ 14 We do not agree with the State that representation by substitute counsel during the last half of the trial was sufficient to satisfy Mother’s due process right to assistance of counsel. Mother was entitled to representation during the entire trial. Allowing less would make the right to counsel meaningless. Further, it is undisputed that the substitute counsel was completely unfamiliar with the case before she arrived and was only allowed a few minutes to prepare during a recess in the middle of trial. See Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 59, 77 L.Ed. 158 (1932) (emphasizing court-appointed counsel must be appointed in sufficient time for counsel to be effective).

¶ 15 The State argues, however, that the court correctly refused to grant the continuance because Mother’s attorney did not properly request the continuance and did not have a true conflict that would prevent her from appearing at this trial. Although Mother’s counsel never requested a hearing, she contends that filing the “Motion to Advise Courts of Potential Conflict” satisfied her obligation to notify the courts of the conflict and that the two judges were then required to communicate and grant a continuance in one of the cases. That did not happen and on the day of trial Mother’s attorney sent a substitute counsel for the sole purpose of arguing for a continuance.

¶ 16 We need not determine whether or not Mother’s counsel had an unresolvable conflict with the criminal trial, and whether she complied with the Guidelines for Resolving Scheduling Conflicts in Oklahoma Courts, not to mention whether those Guidelines were even applicable at all. The issue we address here has constitutional significance which is not affected by the questions just mentioned. The question we do address is whether the trial court abused its discretion by denying a continuance, when denying the continuance resulted in the deprivation of Mother’s fundamental right to effective assistance of counsel at trial.

¶ 17 It is well-established that trial courts have the discretion to rule on motions for continuances, and this ruling will only be reversed for an abuse of that discretion. Kinnear v. Dennis, 1924 OK 171, 97 Okla. 206, 223 P. 383, 384. However, when the failure of the court to grant a continuance results in the deprivation of the litigant’s right to be represented by counsel who is familiar with the facts and law of his case, the court abuses its discretion. Id. at 385. In Anderson v. State, 1922 OK CR 21, 21 Okla.Crim. 193, 207 P. 977, 983, the Oklahoma Supreme Court discussed the interaction of a criminal defendant’s right to counsel and the trial court’s discretion to grant continuances as follows:

Absence of counsel is not made one of the statutory grounds for a continuance. If, however, the trial court’s action in overruling an application on this ground resulted in depriving the defendant of the benefit of counsel, or even if it appeared from the record that the defendant had a substantial defense to the charge which he was unable to present by reason of the absence of counsel, this court would unhesitatingly set aside a conviction for failure to grant a reasonable continuance.

(emphasis added). The trial court does not abuse its discretion by refusing a continuance, however, when the defendant was represented by competent co-counsel during the trial. McCormick v. State, 1954 OK CR 146, ¶ 8, 279 P.2d 859, 362.

¶ 18 In a civil trial, the Oklahoma Supreme Court held that the trial court abused its discretion by refusing to grant a continuance where the defendant’s only counsel became ill in the middle of trial, and a law clerk, who was unfamiliar with the case, was required to finish the trial. Kinnear v. Dennis, 1924 OK 171, 97 Okla. 206, 223 P. 383. The Court noted that allowing the trial court’s action “would set a precedent whereby a litigant might be compelled at any time to accept a substitution of the court’s choice of counsel for one of his own.” Id. at 384. Similarly, the Court of Criminal Appeals held that in a criminal trial, the court abused its discretion by denying a continuance filed by lead defense counsel the day before trial due to illness. Wyatt v. State, 1966 OK CR 6, 410 P.2d 86, 90. Although another attorney was available to try the case, the court’s action still resulted in a denial of effective counsel because the substitute counsel was not familiar with the ease. Id. at ¶¶ 24-25, 410 P.2d at 90; see also Gilroy v. State, 1938 OK CR 64, 64 Okla.Crim. 332, 80 P.2d 602 (finding trial court abused its discretion by refusing a continuance and appointing different counsel on day of trial where defense attorney was ill).

¶ 19 We recognize that the State had an interest in proceeding with trial to obtain permanency for the minor child, who had been in foster care for an extended period. See 10 O.S.2001 § 7001-1.2(B). However, this trial had already been continued several times, at least once at the request of both parties. We do not agree that this presented a sufficiently compelling interest to proceed with the trial on that particular day in violation of Mother’s fundamental right to counsel. Similarly, the trial court’s interest in controlling its docket and the attorneys who appear before it did not justify depriving Mother of her right to counsel. The court has other methods at its disposal for controlling attorneys who do not follow the court’s rules or procedures and who fail to appear for trial leaving their clients to fend for themselves.

¶ 20 As stated by the Oklahoma Supreme Court: “We find that parental rights are too precious to be terminated without the full panoply of protections afforded by the Oklahoma Constitution. We know that the best interest and welfare of the child is the primary consideration, but we also know that this goal is best achieved by full compliance with the law.” A.E. v. State, 1987 OK 76, ¶22, 743 P.2d 1041, 1048 (emphasis added and internal footnotes omitted). Here, as in Kinnear and Wyatt, the trial court abused its discretion by denying a continuance and thereby depriving Mother of her fundamental right to counsel.

¶ 21 Because we reverse and remand for a new trial on this ground it is unnecessary to consider Mother’s second proposition of error regarding her right to a jury trial.

¶ 22 REVERSED AND REMANDED.

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

      . It was specifically alleged that Mother had failed to comply with the court-ordered treatment plan in that she failed to follow recommendations indicated by her substance abuse assessment, failed to complete anger management classes, domestic violence counseling, parenting classes and had failed to provide an appropriate home for S.S.

      . This Court has not considered any material submitted by the parties in their Appendixes that were not contained in the certified record. See Oída. Sup.Ct. R. l.ll(i)(l). It is possible that another continuance was granted in the interim, but the certified record is not clear on this point.

      . The "Motion to Advise Courts of Potential Conflict” was apparently an attempt by counsel to comply with Guidelines for Resolving Scheduling Conflicts in Oklahoma Courts, 1997 OK CR 72, 952 P.2d 993, which was adopted by the Oklahoma Court of Criminal Appeals to resolve conflicts that may arise in criminal cases.

      .The record does not indicate how much time the court allowed the substitute counsel to prepare. Mother’s brief states "approximately seven minutes." However, the court allowed her from the time of the recess until 2:45 p.m. Because the trial was scheduled to begin at 1:30 p.m., and the State had already presented four witnesses prior to the recess, substitute counsel could not have had much time to prepare.

      . See footnote 3, supra.

        . See footnote 3, supra.


source: Caselaw Access Project

author: RONALD J. STUBBLEFIELD, Judge.

license: Public Domain

text:
    2004 OK CIV APP 37
    Philip HALLADAY, Plaintiff/Appellant, v. BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF OKMULGEE, and Ernie Arocha, Defendants/Appellees.
    No. 99,801.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    March 16, 2004.
    Phillip Halladay, Lexington, OK, Pro Se Plaintiff/Appellant.
    Robert E. Applegate, Collins, Zorn & Wagner, P.C., Oklahoma City, OK, for Defendants/Appellees.
   Opinion by

RONALD J. STUBBLEFIELD, Judge.

¶ 1 This is a plaintiffs appeal from the grant of summary judgment to the board of county commissioners and an employee of the office of county sheriff in an action claiming civil rights violations by failing to protect the plaintiff 'when he was an inmate in a county jail and assaulted by other inmates. The appeal has been assigned to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36, 12 O.S.2001, eh. 15, app. 1. Based on review of the record on appeal and applicable law, we reverse and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶ 2 Plaintiff Phillip Halladay, an incarcerated inmate, filed a petition in the District Court of Okmulgee County against the Board of County Commissioners of Okmulgee County and Ernie Arocha, an employee of the Sheriffs Department, (the County Defendants), claiming his civil rights were violated by the failure of the County Defendants to protect him from physical attack by other inmates when he was incarcerated in the county jail. He claimed he was assaulted twice, resulting in lasting injury to his knee, for which he sought one million dollars in actual damages and five million dollars in punitive damages.

¶ 3 The date of the filing of the petition is at issue. It was file-stamped January 24, 2002. That caused the County Defendants to file a motion to dismiss, claiming the action was barred by the two-year limitation period prescribed by 12 O.S.2001 § 95(3). They alleged the assaults took place in December 1999, and that the action filed on January 24, 2002, was out of time. However, Plaintiff responded that he placed the petition in the custody of the prison officials for mailing on December 12, 2001. He argued that under the “prison mailbox rule” this was timely. He attached documentation to his response, which tended to prove that he did send mail to the Court Clerk of Okmulgee County on that date.

¶ 4 It was discovered that the motion had been received by the Court Clerk sometime in December 2001. Thus, the District Court resolved the motion to dismiss in Plaintiffs favor by a letter order, dated April 26, 2002, which stated:

[T]his case was received by the Okmulgee County Clerk’s office in late December, 2001, but was not file stamped until the 24th of January, 2002, through no fault of the Plaintiffs. The Court therefore finds that this cause of action was brought within the statute of limitations period as provided by statute. Accordingly the Motion to Dismiss on behalf of the Defendants shall be dismissed.

¶ 5 Thereafter, there was a short-lived removal of the action to federal court, then a flurry of discovery-related matters. After Plaintiffs deposition was taken, the County Defendants moved for summary judgment. The Board of County Commissioners sought judgment based on the fact that the claims of Plaintiff dealt with the office of Sheriff, an independent agency which it did not control. Ernie Arocha sought judgment based on Plaintiffs deposition admissions that at the time of the purported attacks Arocha was not the Sheriff of Okmulgee County, but merely a D.A.R.E. officer with the Office of Sheriff, and that Arocha had not had any contact with the Plaintiff in regard to the purported assaults. Both parties also reurged, somewhat, half-heartedly, the statute of limitations as a basis for summary judgment because of Plaintiffs deposition admissions that the first assault occurred in May 1999, and the second assault no later than December 20, 1999.

¶ 6 Plaintiff responded, appending a variety of materials to his pleading. Then, on August 11, 2003, the County Defendants filed a “reply,” which gave greater emphasis to the limitation defense, and included new evi-dentiary material — an affidavit from the Court Clerk in which she stated that the petition of Plaintiff could not have, been received prior to December 28, 2001.

¶ 7 The Trial Court granted summary judgment solely on the basis of the statute of limitations. Plaintiff appeals.

STANDARD OF REVIEW

¶ 8 Summary judgment should be granted only where it is clear from the evidentiary materials that there is no genuine issue of fact and that the moving party is entitled to judgment as a matter of law. First Nat’l Bank and Trust Co. of Vinita v. Kissee, 1993 OK 96, ¶ 7, 859 P.2d 502, 505. On reviewing the lower court’s grant of summary judgment, this Court must view all inferences and conclusions to be drawn from the evidentiary materials in a light most favorable, to the party opposing the motion. Carmichael v. Better, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053.

ANALYSIS

¶ 9 Plaintiff claims the Trial Court’s grant of summary judgment was erroneous because (1) under the “mailbox rule” his petition was timely filed where he put it into the hands of correctional officials on December 12, 2001; (2) the affidavit of the Court Clerk was not admissible because it was dated December 9, 2002, but not received by him until August 18, 2003 (presumably received with the reply of the Defendants, which bears a mailing date of August 11, 2003); and, (3) the Trial Court did not allow Plaintiff to be heard by teleconference, although he had filed a prior motion asking to be heard.

¶ 10 The parties do not dispute that the applicable statute of limitations is the two-year period set out in 12 O.S.2001 § 95(3). Plaintiff also admitted in his deposition that the first assault in the county jail occurred in May 1999, and that the second assault occurred in December 1999, while h¿ was held in the “P.C. tank,” and that he was moved from that holding cell after his criminal conviction on December 20,1999.

¶ 11 The Court Clerk, Linda Beaver, stated in her affidavit that the Plaintiffs petition was received at her office and given a case number, but not immediately filed until Plaintiffs motion to proceed without payment of court costs was reviewed by the district judge. Beaver stated that from examination of the filing dates of the cases numbered immediately before and immediately after the number assigned to Plaintiffs case, Plaintiffs petition could not have been received before December 28, 2001.

¶ 12 In light of Plaintiffs admissions in his deposition and the affidavit of Linda Beaver, it was prima facie established that Plaintiffs petition was not filed within two years of the acts which formed the basis of his claim, unless the December 12th date— the date Plaintiff gave the petition to the correctional officials to be mailed — is, by operation of law or equity, determined to be the date Plaintiff filed his cause of action.

¶ 13 The Oklahoma Supreme Court recognizes a “mailbox rule” for appeals filed by pro se incarcerated prisoners — that the date the prisoner turns a petition in error over to correctional authorities for mailing to the court is the date the petition in error is deemed filed. The Court adopted the rule in Woody v. State ex rel. Dept. of Corrections, 1992 OK 45, 833 P.2d 257, citing the United States Supreme Court case of Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), which dealt with the timeliness of an inmate’s filing of a pro se notice of appeal. The Oklahoma Supreme Court quoted the following passage from Houston:

“And if other litigants do choose to use the mail, they can at least place the notice directly into the hands of the United States Postal Service (or a private express carrier); and they can follow its progress by calling the court to determine whether the notice has been received and stamped, knowing that if the mail goes awry they can personally deliver notice at the last moment or that their monitoring will provide them with evidence to demonstrate either excusable neglect or that the notice was'not stamped on the date the court received it. Pro se prisoners cannot take any of these precautions; nor, by definition, do they have lawyers who can take these precautions for them. Worse, the pro se prisoner has no choice but to entrust the forwarding of his notice of appeal to prison authorities whom he cannot control or supervise and who may have every incentive to delay. No matter how far in advance the pro se prisoner delivers his notice to the prison authorities, he can never be sure that it will ultimately get stamped 'filed’ on time. And if there is a delay the prisoner suspects is attributable to the prison authorities, he is unlikely to have any means of proving it, for his confinement prevents him from monitoring the process sufficiently to distinguish delay on the part of prison authorities from slow mail service or the court clerk’s failure to stamp the notice on the date received. Unskilled in law, unaided by counsel, and unable to leave the prison, his control over the processing of his notice necessarily ceases as soon as he hands it over to the only public officials to whom he has access — the prison authorities — and the only information he will likely have is the date he delivered the notice to those prison authorities and the date ultimately stamped on his notice.”

Woody at ¶ 8, 833 P.2d at 259. Relying on this analysis, the Woody Court determined that, in regard to incarcerated prisoners’ appeals, a “mailbox” rule was necessary to afford pro se inmates equal protection and to prevent a denial of equal access to the courts. The rule is now codified as Supreme Court Rule 1.4(d), 12 O.S.2001, ch. 15, app. 1.

¶ 14 This case does not deal directly with the filing of an appeal or a notice of appeal. It deals with the timeliness of a civil action filed in the district court. Civil actions can only be brought within the time periods specified in 12 O.S.2001 § 95, after a cause of action has accrued. In this instance, Plaintiffs cause is controlled by section 95(3) which provides for a two-year limitation period, and his cause of action would have accrued at the time of the alleged assaults.

¶ 15 A civil action is brought or commenced by “filing a petition with the court.” 12 O.S.2001 § 2003. Thus, in order to timely bring his civil action, Plaintiff had to file his petition with the District Court of Okmulgee County within two years from the date of the last alleged assault, which may have occurred as late as December 20, 1999. Evidentiary materials do indicate that he gave the petition to correctional officials for mailing on December 12, 2001.

¶ 16 The question is whether, in this particular instance, the “mailbox rule” should be considered the filing date of the civil action brought by the incarcerated pro se Plaintiff. We conclude it should, because we find the rationale of Woody and Houston equally applicable to this case. It cannot be denied that the Plaintiff did not have control over the submission of his petition to the District Court of Okmulgee County. Like the pro se inmate in Houston, no matter how far in advance he may have delivered his petition to the prison authorities, he could never be sure that it would ultimately get stamped “filed” before the running of the statute of limitations. Furthermore, he gave the mailing to the prison authorities within the time that normally would have assured a timely filing, if December 20, 2001, is found to be the date the limitation period ended.

¶ 17 There is an additional rationale favoring reversal of this summary judgment. Plaintiff claims he should have been heard on the motion, by teleconference. The Trial Court had authority under Rule 13(0, Rules of the District Court, 12 O.S. Supp.2003, ch. 2, app., to determine the motion without a hearing. However, we conclude that in this instance the timing of the Trial Court’s judgment did violate Rule 13. The County Defendants filed a “reply” summary judgment pleading on August 12, 2003, and that pleading contained new evidentiary material-the affidavit of the Court Clerk. Then the Trial Court ruled on the motions for summary judgment seven days later, on August 19, 2003, citing the Court Clerk’s affidavit as a crucial bit of evidence determinative of the limitations issue. Rule 13 does not specify any “reply” pleading, but the rule does give a party 15 days to respond to a motion for summary judgment. Rule 13(b). We conclude that the spirit of the rule requires that a party have the 15 days to respond to any affirmative summary judgment pleading which raises new issues or submits new evi-dentiary materials. Thus, we find the grant of summary judgment only seven days after the filing of the County Defendants’ “reply” to be error.

CONCLUSION

¶ 18 Based on the foregoing rationale, we conclude that the Trial Court erred in granting summary judgment in favor of the County Defendants. Accordingly, that judgment must be reversed.

¶ 19 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

TAYLOR, P.J., and GOODMAN, J., concur.

      . At the time the lawsuit was filed, Arocha was the County Sheriff of Okmulgee County. However, at the time of the events described in the Petition of Plaintiff, he was not.

      . The statute is currently found at 12 O.S. Supp. 2003 § 95(3).

      .This appears to have been a misstatement, with the Court meaning the Okmulgee County District Court Clerk.

      . The Trial Court did not rule on the merits of the other legal arguments proposed by the County Defendants in support of summary judgment— those other than the limitations issue. Because the Trial Court has not first ruled on those issues, we may not address the merits of those issues in this appeal.


author: KENNETH L. BUETTNER, Presiding Judge:

text:
    2004 OK CIV APP 40
    Barbara TILLMAN, an individual, Plaintiff/Appellant, v. James D. SHOFNER, an individual, Defendant/Appellee.
    No. 99,690.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    March 25, 2004.

      R. Tom Hillis, David J. Schaffer, Barkley, Titus, Hillis & Reynolds, Tulsa, OK, For PlaintiffyAppellant.
    Joseph R. Farris, Paula J. Quillin, Jody R. Nathan, Feldman, Franden, Woodard, Farris & Boudreau, Tulsa, OK, For DefendanVAp-pellee.
   Opinion by

KENNETH L. BUETTNER, Presiding Judge:

¶ 1 Barbara Tillman and her attorney, Jim D. Shofner, conspired to defraud the United States Internal Revenue Service and the United States Bankruptcy Court. They each pled guilty in the United States District Court for the Northern District of Oklahoma and were sentenced. Tillman sued her lawyer, Shofner, in the District Court of Tulsa County for conversion and professional negligence with respect to activities which related to their criminal enterprise. The District Court of Tulsa County granted summary judgment in favor of Defendant Shofner. We affirm.

¶2 The facts to which Tillman pled are attached as an appendix. In her conversion claim against Shofner, she alleged that in 1996, he received sale proceeds of the Mill Creek Property, gave her some of the funds occasionally, did not keep records and misappropriated the remainder of the money for his own use. At various times, she requested the money, but he refused to give it to her. Tillman filed her petition November 8, 1999. A claim for conversion must be filed within two years from the time the cause of action accrued. 12 O.S. § 95(3). Shofner asserted the affirmative defense of statute of limitations. “When a defendant moves for a summary judgment on the basis of an affirmative defense, he must show that there is no substantial controversy as to the facts that are material to the affirmative defense and that the facts and inferences that may reasonably be drawn from them are in his favor. When the moving party makes the appropriate showing, the adverse party must then demonstrate the existence of a material fact that would justify a trial of the issue.” Martin v. Chapel, Wilkinson, Riggs, and Abney, 1981 OK 134, ¶7, 637 P.2d 81, 84.

¶ 3 Shofner submitted evidence that he received $121,338.46 from the closing on Tillman’s house. The proceeds were deposited in Shofner’s trust accounts.

Conversion is any distinct act of dominion wrongfully exerted over another’s personal property in denial of or inconsistent with his rights therein, ..., or any wrongful exercise or assumption of authority personally or by procurement, over another’s goods, depriving him of the possession, permanently or for an indefinite time. The act must be essentially tortious, but it is not essential to conversion sufficient to support the action of trover that the defendant should have the complete manucaption of the property, or that he apply the property to his own use, if he has exercised dominion over it in exclusion of, in defiance of, or inconsistent with the owner’s right.

United States Zinc, Co. v. Colburn, 1927 OK 76 255 P. 688, 689. Also see Wetty v. Martinaire of Oklahoma, Inc., 1994 OK 10, 867 P.2d 1273, 1275 (“Conversion is any act of dominion wrongfully exerted over another’s personal property in denial of or inconsistent with his rights therein.”) “Simple conversion occurs when the attorney uses a client’s money for some purpose other than that for which it was intended.” State ex rel. Oklahoma Bar Ass’n. v. Stow, 1998 OK 105, 975 P.2d 869, 874.

¶4 Shofner presented 23 checks totaling over $67,973.46 as paid to or on behalf of Tillman. Shofner also presented other evidence that $121,478.46 was distributed to or on behalf of Tillman. Tillman acknowledged in her Plea Agreement that she received 21 checks from Shofner between May 1996 and November 1, 1996 totaling $110,133.46. However, in her affidavit attached to her Response Brief, Tillman denies that she received the proceeds of 23 cheeks, denies receiving the proceeds of a $24,333 cashier’s check, and denies receiving $9,000 in cash from Shofner in November 1996. In her Response Brief, Tillman claims that Shofner forged Tillman’s endorsement on the checks and cashed them himself, or required Tillman to give Shofner the cash after Tillman cashed them. Rather, Tillman testified that Shofner had control over the money and there were “D]ots of times he wouldn’t let me have any.” She also testified there were several occasions when they would meet at a bank, Shof-ner would give Tillman a check to cash, then Tillman would give the cash to Shofner. These events occurred more than two years before the conversion claim was filed. Thus, while Tillman may claim that Shofner’s “final refusal” occurred in December 1998, it is clear that, according to Tillman, she knew that Shofner was exercising control and dominion over her funds in his trust account, contrary to her wishes. That is sufficient to demonstrate conversion. Based on these facts, neither tolling nor estoppel would be applicable to this claim. Tillman’s conversion claim was barred by the statute of limitations.

¶ 5 Shofner next contends that Tillman’s criminal conduct precludes her from seeking damages against him as a matter of law. We agree. “If it appears to the court that there is no substantial controversy as to the material facts and that one of the parties is entitled to judgment as a matter of law, the court shall render judgment for said party.” 12 O.S. Ch. 2, App. 1, District Court Rule 13(e).

¶ 6 The facts relating to the alleged professional negligence were the same to which Tillman pled in her criminal conspiracy. Consequently, one need go no further than to remark that any damage proximately caused to Tillman was the result of her decision to criminally conspire with Shofner, and not from following negligent advice.

¶ 7 The defense of in pari delicto has been recognized in Oklahoma. The Oklahoma Supreme Court has referred to the general and universal rule “that where parties to an immoral or illegal transaction are in pari delicto with each other, each is es-topped, as to the other, to take advantage of his own moral turpitude, illegal act, or criminal conduct for purposes of recovering damages for injuries sustained as a consequence of their joint wrong.... And as between parties in pari delicto the law will aid neither, but will leave them as it finds them.” Bowlan v. Lunsford, 1936 OK 158, 54 P.2d 666, 668. Also see Ohio Casualty Ins. Co. v. Todd, 1991 OK 54, 813 P.2d 508, 517-518 (Opala concurring); Taylor v. Hesser, 1998 OK CIV APP 151, 991 P.2d 35, 38 (“Assuming, arguendo, that shooting a paintball gun at another person violates § 1364, Taylor was in pan delicto with Martin, Hesser and Hux-man. Therefore, Taylor is estopped from taking advantage of his own possibly illegal act to recover damages.”)

¶ 8 In connection with an attempt to collect on an instrument given for a gambling debt, the Supreme Court upheld the rule that the instrument was invalid:

The basis of this rule is that the law will not lend its aid to a transaction in violation of law, and particularly to a participant ..., “The well settled principle of law is, that no one knowingly participating in a transaction intended to accomplish a purpose forbidden by law can bring an action for any cause directly connected with that illegality.” [Citation omitted.]

Brinley v. Williams, 1941 OK 141, 114 P.2d 463, 464-65.

¶ 9 A factually similar situation occurred in Butler v. Mooers, 2001 ME 56, 771 A.2d 1034, in which a former client sued his lawyer for legal malpractice after the client pled guilty to bank fraud. The attorney also pled guilty to the improper handling of some of the clients’ funds. The court first held the doctrine of collateral estoppel was dispositive of the issues involved in the client’s conviction. The court stated:

Thus, even if we assume that [Lawyer] negligently provided [Client] with inaccurate legal advice, [Client’s] plea of guilty and his acknowledgment that he ‘knowingly and wilfully’ defrauded the banks precludes a finding that his criminal conduct was nonetheless proximately caused by [Lawyer’s] negligent legal advice.

Id. at ¶ 9, p. 1037.

¶ 10 In Heyman v. Gable, Gotwals, Mock, Schwabe, Kihle, Gaberino, 1999 OK CIV APP 132, 994 P.2d 92, Clients and Partners were co-owners of a gas-gathering business. Partners wanted to sell the company, Clients did not, but Clients agreed to sell if a certain minimum bid were obtained. Clients hired the law firm, Gable Gotwals, to prepare a Standstill Agreement. A bid was received which appeared to satisfy the requirements, but Clients, relying on the Standstill Agreement’s language and the firm’s advice, decided the bid was. unacceptable and blocked the purchase. The Standstill Agreement expired, Clients and Partners then had a bidding war and Clients won. Partners were paid less for their shares than they would have been had they been able to accept the bid under the Standstill Agreement. Partners sued and a verdict for fraud was entered against Clients. Clients then sued the law firm for legal malpractice. The Court of Civil Appeals held that Clients’ “fraud was independent of the alleged negligent drafting of the SA and of the trial representation by the Firm ... It would be contrary to public policy to allow the Clients here to benefit from their own confirmed fraud and recover a monetary judgment from the Firm to indemnify them for their fraud.” Id. at ¶ 12, p. 94.

¶ 11 Tillman has argued that she was not quite as guilty as Shofner and should be allowed to recover on that ground. We disagree. When joint tortfeasors are not in pan delicto “and their negligence is substantially different not merely in degree but in character, it is generally recognized that indemnity may be awarded.” Olson Farms, Inc. v. Safeway Stores, Incorporated, 649 F.2d 1370, 1378 (10th Cir.1979). The rule, however, is that “an intentional wrongdoer is not eligible to recover indemnity.” Id. at 1379. Tillman and Shofner both pled guilty to conspiring to commit bankruptcy fraud by knowingly and fraudulently concealing money in Tillman’s bankruptcy case. They accomplished the fraud by filing a false bankruptcy petition and schedules. In addition, Tillman filed a false tax return.

¶ 12 Tillman argues that differing degrees of guilt is shown by the different sentences imposed by the federal court. The fact that one received a lesser sentence under the Federal Sentencing Guidelines is not disposi-tive in that the Guidelines consider many individual factors. Indeed, in this case Tillman argued for a downward departure because she paid restitution of $121,338.46. The federal judge granted a two point reduction in offense total due- to the restitution, which resulted in Tillman’s lower sentence, not a difference in culpability.

¶ 13 Shofner cites two cases, with similar facts, that are compelling. In Evans v. Cameron, 121 Wis.2d 421, 360 N.W.2d 25 (1985), the client sued her attorney for damages resulting from her false testimony in a bankruptcy proceeding. She claimed her attorney advised her to lie in order to hide $10,000 in cash from creditors. In response to the argument that a client has the right to rely on the advice of counsel, the court said:

There may be circumstances in which the advice given by an attorney is so complex that the client would be unaware of the wrongfulness involved in following that advice. In such circumstances, more weight may be given to the influence an attorney will have over the client and the amount of ■ reliance which the client can justifiably place in the attorney. The wrongfulness of lying while under oath, however, is apparent Absent some allegation of special circumstances constituting an exception to the rule of in pari delicto independent of the attorney-client relationship, the client’s deliberate act of lying under oath places that client in pari delicto with the attorney who advised that client to lie.

Id. at 428, 360 N.W.2d 25. (Emphasis added.)

The client then argued that public policy may intervene to allow the client to recover against the attorney. The court responded:

Although the public interest is served by discouraging attorney misconduct, it would be inappropriate to promote that interest by removing the damage to those who deliberately and willfully lie under oath in bankruptcy proceedings. A Court should not encourage others to commit illegal acts upon their lawyer’s advice by allowing the perpetrators to believe that a suit against the attorney will allow them to obtáin relief from any damage they might suffer if caught. The attorney’s misconduct of advising clients to perform illegal acts should be discouraged by the threat of attorney disciplinary action. ■

¶ 14 The second case is Pantely v. Garris, Garris & Garris, 180 Mich.App. 768, 447 N.W.2d 864 (1989). The client lied by testifying she had lived in the county for at least ten days before the filing of a divorce complaint. The client argued that she was not in pari delicto with her lawyer because she lied at the direction of her attorney at a time when she was emotionally distraught and desperate to secure a divorce. The court found she was in pari delicto:

We can readily envision legal matters so complex and ethical dilemmas so profound that a client could follow an attorney’s advice, do wrong and still maintain suit on the basis of not being equally at fault. But perjury is not complex; and telling the truth poses no dilemma. Even against the backdrop of a moral relativism that passes for intellectual sophistication in contemporary America, perjury is wrong. More pointedly, it is a crime. M.C.L. § 750.422; M.S.A. § 28.664. A law degree does not add to one’s awareness that perjury is immoral and illegal, any more than an accounting degree adds to one’s awareness that tax fraud is immoral and illegal.

Id. at 776, 447 N.W.2d 864. (Emphasis added.)

¶ 15 This principle of law finds support in other states. In General Car & Truck Leasing System, Inc. v. Lane & Waterman, 557 N.W.2d 274 (Iowa 1996), the client signed and submitted a false affidavit, on advice of counsel, to the Patent and Trademark Office to obtain federal registration of a service mark. The court found the client and lawyer in pari delicto, even though the lawyer may have given negligent advice regarding the scope of the registration. The potentially negligent advice did not change the deceptive nature of the affidavit. In Blain v. The Doctor’s Co., 222 Cal.App.3d 1048, 272 Cal. Rptr. 250, 261 (1990), the California Court of Appeals dismissed a physician’s lawsuit against his former lawyer for advising the doctor to lie at his deposition in a previous malpractice action. It stated, “Lay persons may be confused about the legality of sham transactions employed to frustrate creditors. But there is little plausibility in the claim that one was confused about the legality of lying in the teeth of the oath just sworn.” Id. at 1062, 258. Also, see Feld & Sons, Inc. v. Pechner, Dorfman, Wolfee, Rounick & Cabot, 312 Pa.Super. 125, 458 A.2d 545, 552 (1983) in which the client’s malpractice claim was dismissed. The lawyers had advised the clients to commit perjury, falsify exhibits and offer a potential witness a bribe. They were in pari delicto.

¶ 16 We agree that the 'wrongfulness of lying under oath and submitting false, pleadings to a court is readily apparent, and places Tillman in pari delicto with Shofner. To hold otherwise would supply a safety net to the prevaricating client to recover from her attorney the damages resulting from the lie. We agree that the attorney’s misconduct is amply discouraged by the threats of criminal sanctions and disciplinary proceedings.

¶ 17 The trial court properly granted summary judgment in favor of Defendant. We AFFIRM.

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

PLEA AGREEMENT OF BARBARA JEAN TILLMAN

I, BARBARA JEAN TILLMAN, admit that I, between about June 26, 1995, and March 24, 1997, in the Northern District of Oklahoma, did conspire with JIM D. SHOFNER (Shofner) to commit concealment of assets in violation of Title 18, U.S.C., § 152(7), and to defraud the United States Department of the Treasury, Internal Revenue Service, by defeating the lawful functions of the Internal Revenue Service in the collection of the revenue and by knowingly and fraudulently concealing my money and property from the appointed trustee and creditors, including the Internal Revenue Service, in the case of Barbie Hale, a/k/a B. Hale, case no 96-01454-R, in the United States Bankruptcy Court for the Northern District of Oklahoma with the intent to defeat the provisions of Title 11 and the payment of said creditors, including the Internal Revenue Service, and did knowingly and voluntarily participate in the conspiracy, knowing the essential objectives of the conspiracy, by joining in the commission of the following overt acts to effect the conspiracy’s objects:

(1)On May 22, 1995, I signed a contract for the purchase of property described as Lot 15, Block 4, Mill Creek Pond, Plat No. 3897, a/k/a 6114 E. 98th Street, Tulsa, Oklahoma (the property), but on June 26,1995, Shofner and I instructed the settlement agent to prepare the deed to the property in the name Jean MacHale, a pseudonym, I and Shofner used to conceal the home’s true ownership from the Internal Revenue Service and other creditors.

(2) In order to conceal assets from the Internal Revenue Service and to defeat the payment of creditors in my bankruptcy case, on April 19, 1996, Shofner and I participated in closing transactions respecting the sale of the property for net proceeds of $21,338.46 cash and $100,000.00 due on April 30, 1996, and payable to Jean MacHale. With the intent to deceive the Internal Revenue Service in the ascertainment and collection of revenue, I signed an IRS Reporting Information form respecting the sale of the property that was falsely completed with a social security number that was not assigned to me.

(3) On April 22, 1996, Shofner and I caused to be filed in the United States Bankruptcy Court for the Northern District of Oklahoma a voluntary petition seeking relief pursuant to chapter 7 of Title 11, United States Code. Simultaneously, Shofner and I caused to be filed with the Bankruptcy Court schedules and a statement of financial affairs that falsely concealed my interest in the property and the $121,338.46 payable to me.

(4) On April 30, 1996, by agreement with Shofner, I endorsed and delivered to Shofner for deposit to his attorney trust accounts two closing proceeds checks payable to Jean MacHale in the total amount of $121,338.46.

(5) Between May 3, 1996, and November 1, 1996, by agreement with Shofner, I requested and received 21 checks payable to me, Jean MacHale, and another individual that totaled approximately $110,133.46.

(6) On March 24,' 1997, I, with Shofner’s concurrence, caused a 1996 U.S. Individual Income Tax Return (Form 1040), falsely reporting the sale of the property, to be prepared on behalf of, and signed by, another individual in Tulsa, Oklahoma. The return was subsequently filed with the Internal Revenue Service. Then I filed my 1996 income tax return with the Internal Revenue Service, I falsely omitted the sale of the property in order to deceive the Internal Revenue Service.

/§/_ 1-23-01 BARBARA JEAN TILLMAN, Defendant

      . Tillman asserted other claims against Shofner which were dismissed after the summary judgment ruling in order to allow this appeal to proceed.

      . The Plea Agreement indicates that proceeds were obtained April 30, 1996, endorsed by Tillman, and given to Shofner for deposit into Shof-ner’s trust account.

      .Tillman argued in her Response Brief that Shofner waived the statute of limitations and the in pari delicto defenses because he failed to file an answer asserting these affirmative defenses. Shofner’s Answer, filed October 29, 2002, asserting these defenses, is part of the record on appeal.

      . Tillman received 5 months incarceration and was ordered to pay restitution of $121,338.46. Shofner received 18 months incarceration. The court refused Shofner’s request for downward departure because of his status as an attorney.

      . However, the court held that although the client's action for compensatory and punitive damages was barred by the doctrine of in pari delicto, "... when a lawyer has by immoral or illegal conduct violated his professional obligations to his client, an action by the client to recover the lawyer’s fee will not be barred on the lawyer’s plea that the client also engaged in immoral or illegal conduct.” Id. at 142.

      . Shofner was disbarred because of his conviction. State ex rel. Oklahoma Bar Assn. v. Shofner, 2002 OK 84, 60 P.3d 1024.


author: JOHN F. REIF, Presiding Judge.

text:
    2004 OK CIV APP 38
    In the Matter of the ESTATE OF Ronald Curtis SHAW, Deceased. Kevin Park McKnight, Proponent/Appellant, v. Sherry Shaw, Contestant/Appellee.
    No. 97,137.
    Court of Civil Appeals of Oklahoma, Division No. 2.
    April 6, 2004.

      John K. Harlin, Jr., Tulsa, OK, for Appellant.
    Ollie W. Gresham, Tulsa, OK, for Appellee.
   Opinion by

JOHN F. REIF, Presiding Judge.

¶ 1 This appeal concerns the trial court’s refusal to admit the holographic will of decedent Ronald Curtis Shaw to probate. The proponent of the will contends that the trial court erred in denying the will to probate on grounds of undue influence and lack of testamentary capacity. The proponent argues that these conclusions are contrary to the clear weight of the evidence and, in fact, unsupported by any evidence. Despite a persuasive effort by counsel for the proponent to demonstrate the merit of these arguments, we nonetheless affirm the refusal to admit the holographic will to probate.

¶ 2 Probate proceedings are proceedings of equitable cognizance in which an appellate court may and will examine and weigh the evidence. Estate of Bartlett, 1984 OK 9, ¶ 4, 680 P.2d 369, 374 (footnotes omitted). “Once invoked in a proper proceeding, equity will administer complete relief on all issues formed by the evidence regardless of whether the pleadings specifically tendered [the issues] for resolution.” Id. An appellate court is neither bound by the reasoning nor by the findings of the trial court, but must render, or cause to be rendered, the judgment which in its opinion the trial court should have rendered. Id. “If the result is correct, the judgment is not vulnerable to reversal because the wrong reason was ascribed as a basis for the decision or because the trial court considered an immaterial issue or made an erroneous finding of fact.” Id. Whenever the law and facts so warrant, an equity decree may be affirmed if it is sustainable on any rational theory and the ultimate conclusion reached below is legally correct. Id.

¶ 3 In our examination and weighing of the evidence in this case, the issue formed by the evidence about which this court is most concerned is the proponent’s alteration of each sheet of the holographic will. The proponent procured the addition of a notarial jurat to each sheet after decedent’s death and asked the notary to back date each jurat to the date written on each sheet. Obviously, the proponent believed that the will was incomplete and invalid without a contemporaneous jurat and added the jurats so he could pass the will off as a fully effective instrument.

¶ 4 This addition of the jurats was an alteration of the will that was designed to deceive the court and heirs, and to illegally promote proponent’s claim to the decedent’s estate. The fact that the proponent acted from a mistaken belief is immaterial to the effect that the alteration of the will had on its validity. As the Supreme Court of California has observed: “[W]e think the obvious purpose and intent of the legislature of making an holographic will ... the exclusive act of the testator, leads necessarily to the conclusion that the slightest change by a stranger [even] with knowledge and consent of the testator, at any time during its existence, will completely vitiate any instrument as a holographic will.” In re Towles Estate, 14 Cal.2d 261, 93 P.2d 555, 561 (1939) (emphasis added). We adopt and apply this rule to the instant case because the “issue as to whether [a] writing is sufficient, in form, to constitute a valid holographic will [is] not a factual, but [is] a legal one.” In re Bennett’s Estate, 1958 OK 97, ¶ 10, 324 P.2d 862, 866.

¶ 5 In holding that the addition of the back-dated jurats after decedent’s death vitiated any testamentary effect of the holographic will in question, we are cognizant of the holding in Hartman v. Perdue, 1961 OK -, 365 P.2d 163. There, the Oklahoma Supreme Court held that a holographic will was valid even though “the will was ‘witnessed’ by two friends of the testatrix.” Id., 365 P.2d at 164. There is a significant difference, however, between the inclusion of witness attestations from ignorance or mistake on the part of the testator, and the fraudulent addition of a false, back-dated notarial jurat that was procured by the proponent and beneficiary with the intent to deceive the court and heirs. While equity will grant relief for the mistaken addition of witness attestations by treating it as surplusage, “[t]he general rule is that where a party has participated in fraud, equity will grant such party no relief.” State ex rel. Burk v. Oklahoma City, 1973 OK 134, ¶ 32, 522 P.2d 612, 619 (citation omitted).

¶ 6 For the foregoing reasons, the judgment denying the admission of the holographic will in question is AFFIRMED.

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

      . The will consists of two sheets of lined yellow pad paper. One sheet contains a handwritten statement that is signed and dated 01-07-98, leaving decedent's mother one dollar. The other sheet contains a handwritten statement that is signed and dated 01-07-98, leaving "all my assets to Kevin Parker McKnight.” Two separate written statements of the same date can constitute a holographic will. In re Murphy's Estate, 104 Cal. 554, 38 P. 543 (1895). By statute, multiple testamentary instruments executed by the same testator are to be taken together as one instrument. 84 O.S.2001 § 154.

      . In the decision announced from the bench, the trial court made several comments about this addition of back-dated notarial jurats after decedent’s death and obviously gave this great weight in reaching the decision. However, both the decision from the bench and the order denying the will to probate were grounded on undue influence and lack of testamentary capacity, not alteration of the will.


author: RONALD J. STUBBLEFIELD, Judge:

text:
    2004 OK CIV APP 47
    EQUIPMENT WORLD, INC., Plaintiff/Appellee, v. INTERNATIONAL FIDELITY INSURANCE COMPANY, Defendant/Appellant, and Oklahoma Excavation, Inc., Defendant.
    No. 100,054.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    April 13, 2004.

      Charles Greenough, Boone, Smith, Davis, Hurst & Dickman, Tulsa, OK, for Plaintiff/Appellee.
    Mary Robertson, Christopher R. Graves, Crowe & Dunlevy, Norman, OK, and Kayci B. Hughes, Crowe & Dunlevy, Tulsa, OK, for Defendant/Appellant.
   Opinion by

RONALD J. STUBBLEFIELD, Judge:

¶ 1 This is an appeal by the surety on a “Statutory and Payment Bond” from sum-' mary judgment entered by the District Court of Tulsa County in favor of an equipment leasing company. The appeal has been assigned to the accelerated docket pursuant'to Okla. Sup.Ct. R. 1.36, 12 O.S.2001, ch. 15, app. 1. Based on our review of the record on appeal and applicable law, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2 This lawsuit arises from two separate road construction projects in Tulsa County in which the Oklahoma Transportation Authority contracted with the company Oklahoma Excavation, Inc. (OEI or the contractor). The contractor leased equipment from Equipment World, Inc. (EWI), and that equipment was used on the state projects. However, OEI did not pay all its indebtedness to EWI, and eventually OEI was terminated from the projects. EWI removed its equipment from the job and sought payment from the surety on the statutory performance bond, International Fidelity Insurance Company (Fidelity). Fidelity did not dispute that the equipment had been used on the state road projects and paid EWI for rental fees for the time the equipment was used. However, Fidelity disputed its obligation to pay EWI for post-return repairs on the equipment and for interest accruing on the unpaid balances according to the terms of the contract between EWI and OEI.

¶ 3 EWI filed -this lawsuit, and largely the dispute is a legal one — whether post-return repairs and contractual interest are covered under the statutory bond' posted pursuant to 61 O.S.2001 § 1. We conclude they are.

STANDARD OF REVIEW

¶ 4 The appellate standard of review of a trial court’s grant of summary judgment is de novo. Carmichael v. Better, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. On review, this Court will examine the pleadings and eviden-tiary materials submitted by the parties to determine if there is a genuine issue of material fact. Id. All inferences and conclusions to be drawn from the evidentiary materials will be viewed in the light most favorable to the non-moving party. Id. This Court will reverse the grant of summary judgment where it appears from the evidentiary materials that there is a genuine issue as to any material fact or, if the material facts are undisputed, reasonable persons might reach different inferences on conclusions from those facts. Buck’s Sporting Goods, Inc. v. First Nat’l Bank & Trust Co. of Tulsa, 1994 OK 14, ¶11, 868 P.2d 693, 697-98. In a summary judgment review an appellate court has the same power as the trial court to resolve any disputed issues of law. U.S. Mortg. v. Laubach, 2003 OK 67, ¶ 31, 73 P.3d 887, 900.

DISCUSSION OF ISSUES

¶ 5 Fidelity raises several contentions of error on appeal which are posed as questions. These propositions may be summarized as contentions that the Trial Court erred in granting summary judgment to EWI because (1) under 61 O.S.2001 § 1, a performance bond surety is not liable for the post-return repair of leased equipment which is no longer being used on a state project, nor for interest on the debt specified in the lease contracts; (2) the surety is not liable for repairs “in excess of normal wear and tear” or “tort damages” to leased equipment no longer being used for completion of the bonded project; and, (3) the equipment lessor (EWI) should be required to recover the cost of “extraordinary repairs” under liability and property insurance it was required to obtain on a state project. We reject these contentions.

I. Costs of Repair and Interest

¶ 6 61 O.S.2001 § 1 (emphasis added) provides:

Bond, irrevocable letter of credit or affidavit of payment of indebtedness to be furnished on public works contracts
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 than the total sum of the contract; or
2. Cause an irrevocable letter of credit, containing terms the Department of Central Services prescribes, to be issued for the benefit of the state by a financial institution insured by the Federal Deposit Insurance Corporation in a sum not less than the total sum of the contract.
B. The bond or irrevocable letter of credit 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.
C. For a contract not exceeding Twenty-five Thousand Dollars ($25,000.00), in lieu of a bond or irrevocable letter of credit, the contractor shall submit an affidavit of the payment of all indebtedness incurred by the contractor, the contractor’s subcontractors, and all suppliers of labor, material, rented machinery or equipment, and repair of and parts for equipment used or consumed in the performance of the contract. The execution of the affidavit with knowledge that any of the contents of the affidavit are false, upon conviction, shall constitute perjury, punishable as provided for by law.

Fidelity acknowledges it is responsible to EWI for “repair of and parts for equipment used or consumed in the performance of the contract,” but argues that this language means only that it is liable for cost of repair of the machinery while it was being used on the state project. It claims that when the machinery was returned to EWI with no intent that the equipment ever be used on the job again, it had no further liability for repair costs. We find this to be a strained construction of the statutory language, and more specifically one that overlooks the most descriptive phrase in the statute in regard to legislative intent.

¶ 7 In defining the scope of the surety’s liability, the Oklahoma Legislature chose to use the phrase “all indebtedness the contractor incurs,” rather than more specific terms such as charges or rents. The use of such a broad term as “all indebtedness” indicates a legislative intent to give considerable protection to subcontractors and suppliers of materials and equipment for construction of state projects. This is in keeping with the basic purpose of the law noted by the Oklahoma Supreme Court in Richards & Conover Steel Co. v. Nielsons, Inc., 1988 OK 48, ¶ 14, 755 P.2d 644, 649, “to as fully indemnify against loss those who deal with public improvement contractors as those who deal with other contractors with private persons are indemnified by the provisions of the mechanic’s and materialmen’s lien laws.” We shall review the claim of EWI against the surety in that light.

¶8 Under section 12 of the lease agreements, OEI clearly had a contractual responsibility to keep the rented equipment in a good state of repair. Therefore, EWI was entitled to the return of its leased equipment in good and workable condition. When the returned equipment was found to be damaged, EWI was entitled under sections 12 and 14 of the contracts to undertake -repairs for which OEI and the performance bond surety were responsible. The important fact is that the equipment’s need for repair was due to use by OEI on the state projects, as attested to by the president of OEI and not controverted by Fidelity. If the equipment was damaged while working on the state projects, it is of no significance that the machinery was not scheduled to return to those projects.

¶ 9 Fidelity also claims it should not be responsible for the interest on the delinquent debt, which the lease contracts specified at a rate of 18 percent. Fidelity argues that it “cannot be deemed to have assumed, by its bonds, any contract to which it is not a party.” We believe the Oklahoma Legislature has specified otherwise. Under 61 O.S. 2001 § 1, Fidelity’s responsibility is for “all indebtedness the contractor incurs.” Clearly that would include interest specified in the lease contracts for delinquent accounts. Fidelity alternatively claims that the proper interest should be the statutory rate. However, neither the Oklahoma Legislature nor the courts of this state may wrongfully impair legal contracts. Okla. Const, art. 2, § 15. Thus, the statute regarding interest on judgments clearly specifies “[i]f a rate of interest is specified in a contract, the rate specified shall apply and be stated in the journal entry of judgment.” 12 O.S.2001 § 727(D). The rate specified by the contracts between EWI and OEI was correctly stated in the judgment of the Trial Court.

II. Nature of the Repairs and Collateral Source

¶ 10 Fidelity claims it was not responsible for damages to the equipment which were “in excess of normal wear and tear” or for “extraordinary repairs.” However, the eviden-tiary materials do not bear, out this attempted characterization of the repairs. Once again the affidavit of the OEI executive officer is dispositive of the issue. He states that the damage done to the EWI equipment was incurred entirely by performing work under the state contracts. Fidelity did not controvert this evidence. Thus, there simply is no evidentiary basis for Fidelity’s attempt at categorizing the repairs effected by EWI as extraordinary, unusual, or necessitated by tort injury to the equipment.

¶ 11 The last conclusion is also dispositive of Fidelity’s question whether EWI could recover from the performance bond for “extraordinary repairs which should be covered by and compensated for by the liability and property insurance required to be obtained by OEI and [EWI].” The short answer is that EWI can recover under the surety bond, because' there was no indication that there were “extraordinary repairs” or “tort damages.” The evidence establishes that the need for repairs was due to the work performed on the state projects, and not from occurrences that would be covered by liability and/or property insurance.

¶ 12 We reiterate that the cost of repairs was part of the “indebtedness [contractually] incurred by the contractor.” Thus, by statute they were costs for which the contractor’s surety was contractually liable. The existence of an alternative or collateral feource for possible payment of the expense would neither extinguish the contractor’s debt nor the equipment lessor’s right to recover on the performance bond.

CONCLUSION

¶ 13 We find no error in the Trial Court’s grant of summary judgment. The cost of repairs and the contractually specified interest on unpaid charges were “indebtedness the contractor incurs.” Thus, to deny recovery against the performance bond for those charges would violate the clear mandate of the legislature in 61 O.S.2001 § 1(B). Accordingly, the judgment of the lower court is affirmed.

¶ 14 AFFIRMED.

TAYLOR, P.J., and GOODMAN, J., concur.


author: KENNETH L. BUETTNER, Presiding Judge.

text:
    2004 OK CIV APP 42
    Peggy HADDOCK, Plaintiff/Appellant, v. WOODLAND PARK HOME, INC., Defendant/Appellee.
    No. 98,874.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    April 16, 2004.
    Laurence L. Pinkerton, Judith A. Finn, Pinkerton & Finn, P.C., Tulsa, OK, For Plaintiff/Appellant.

      Jody R. Nathan, Paul F. Prather, Feld-man, Franden, Woodard, Farris & Bou-dreaux, Tulsa, OK, For Defendant/Appellee.
   Opinion by

KENNETH L. BUETTNER, Presiding Judge.

¶ 1 Plaintiff/Appellant Peggy Haddock appeals from the trial court’s order granting in part her application for litigation costs and denying her application for attorney fees. Following a jury trial, Haddock sought costs, pre-judgment interest, and attorney fees from Defendant/Appellee Woodland Park Home, Inc. (“Woodland Park”) based on Haddock’s contention that thie damages award was greater than the counteroffer of judgment she made before trial. The trial court found that Woodland Park had previously paid the pre-judgment interest. The trial court awarded costs to Haddock, but found that the offer of judgment was invalid, as was Haddock’s counteroffer of judgment, and the court denied Haddock’s quest for counsel fees. We affirm.

¶ 2 The facts of this case are not disputed. Haddock and her husband, Plaintiff Randall Haddock, filed suit against Woodland Park after Haddock was injured in an auto accident involving a car driven by one of Woodland Park’s employees. Haddock sought damages for personal injuries and her husband made a claim for loss of consortium.

¶ 3 Woodland Park filed its Offer of Judgment July 22, 2002, in which it offered “to confess judgment in favor of Plaintiffs, Peggy Haddock and Randall Haddock, in the amount of $85,000.... This offer must be accepted by both Peggy Haddock and Randall Haddock in order to be enforceable.”

¶ 4 Haddock and her husband filed a Counteroffer of Judgment July 29, 2002. That document provides that “Plaintiff, without conceding the validity of the Offer of Judgment of the Defendant ..., or waiving their right to object to it, submit the following counteroffers ...” The Counteroffer then provided that Haddock counteroffered $353,000, her husband counteroffered $20,000 and together they counteroffered $373,000.

¶ 5 Haddock and her husband then filed on October 15, 2002 a Motion to Strike Offer of Judgment. They contended that Woodland Park’s. Offer of Judgment did not comply with 12 O.S. § 1101.1 because it made one offer to both plaintiffs and did not afford them the opportunity to accept or reject the offer individually. Haddock and her husband asked that the offer be stricken, or in the alternative, that they be allowed to comment on the offer at ⅛¾1.

¶ 6 Woodland Park filed its Objection to Motion to Strike October 17, 2002. Woodland Park argued that its Offer of Judgment was proper under § 1101.1, and also argued that Haddock’s Motion-to Strike was untimely where Haddock had previously submitted a Counteroffer of Judgment. Woodland Park also argued that § 1101.1(C) expressly provides that evidence of offers or counteroffers of judgment is not admissible except in actions to enforce settlement agreement or to determine reasonable attorney fees and costs.

¶7 Jury trial was held October 21-24, 2002. The journal entry of judgment was filed November 13, 2002, which provided that the jury found in favor of Haddock and awarded her $350,000 in damages. The jury found in favor of Woodland Park on the husband’s claim for loss of consortium. The court entered judgment in favor of Haddock for $350,000 plus pre-judgment interest, costs and post-judgment interest as prescribed by law.

¶ 8 Haddock filed her Application for Prejudgment Interest, Attorney Fees, and Costs November 13, 2002. Haddock sought $148,229.41 in pre-judgment interest. Haddock asserted that the damages award and pre-judgment interest totaled $498,229.41, which exceeded the Offer of Judgment made by Woodland Park. Haddock asserted that because Woodland Park did not accept Haddock’s Counteroffer of Judgment and because Haddock received a judgment for more than the amount of her counteroffer (after adding pre-judgment interest), then she was entitled to attorney fees incurred from the date of the counteroffer to the date of the verdict, plus costs. Haddock requested $12,043.09 in costs and $28,525 in attorney fees. Haddock later supplemented her application for costs seeking an additional $750.

¶ 9 Woodland Park filed its Objection to the application for attorney fees November 25, 2002. Woodland Park asserted, as had Haddock in her Motion to Strike Offer of Judgment, that § 1101.1 provides that any defendant may file an offer of judgment for a sum certain to any plaintiff. Woodland Park asserted that based on Haddock’s Motion to Strike, the trial court had ruled before trial that the Offer of Judgment was ineffective because it was made jointly to both plaintiffs. Woodland Park argued that because its Offer of Judgment was invalid, Haddock’s Counteroffer of Judgment was likewise invalid, because there was no valid offer to counter, and that Haddock was therefore not entitled to attorney fees. Woodland Park also argued that if the court had not ruled that the offer and counteroffer were ineffective, Woodland Park would be entitled to an award of fees from Randall Haddock, who did not prevail and necessarily received less than his counteroffer of judgment. Woodland Park also argued that the costs requested were unreasonable and unsupported by the record. Woodland Park lastly asserted that on November 22, 2002 it had delivered to Haddock’s counsel a check for $499,891.10, representing the damages award plus pre-and post-judgment interest. Woodland Park asked that the court deny Haddock’s request for attorney fees and costs.

¶ 10 Woodland Park filed its Motion to Tax Costs December 2, 2002. Woodland Park asserted that it was the prevailing party as to Randall Haddock and was therefore entitled to an award of costs pursuant to 12 O.S. § 929. Woodland Park asked for an award of $6,697.59 as costs.

¶ 11 Haddock filed her “Second Supplemental Application Costs” December 16, 2002, in which she sought $29,218.27. Many of the costs itemized in the second supplement were similar, but not identical, to those amounts itemized in the original application for costs and first supplement. To this, Haddock added a request for $17,738.76 for expert witness expenses.

¶ 12 The trial court issued its final order on Haddock’s applications for pre-judgment interest, attorney fees and costs, and on Woodland Park’s motion for costs January 17, 2003. The trial court denied Haddock’s application for attorney fees under 12 O.S. § 1101.1. The trial court itemized the costs it granted to Haddock, totaling $4,059.56. The trial court awarded Woodland Park the cost of the deposition of Randall Haddock, in the amount of $205. The trial court denied all other costs requests. The court found that pre-judgment interest previously had been paid. It is from this order that Haddock appeals.

¶ 13 Haddock first argues that the trial court erred in ruling that Woodland Park’s Offer of Judgment was invalid because it offered one sum to both plaintiffs, without apportionment. Haddock has failed to acknowledge that this is the exact argument she made in support of her Motion to Strike the Offer of Judgment. Haddock in essence appeals from the trial court’s decision to do exactly as Haddock requested it to do. Nevertheless, we find the trial court correctly denied Haddock’s application for attorney fees.

¶ 14 The Offer of Judgment by Woodland Park provided one judgment amount directed to both plaintiffs and expressly required' the plaintiffs to accept the judgment together. Such an offer of judgment is invalid. Section 1101.1 provides that any defendant may make an offer of judgment as to any plaintiff. No published Oklahoma case has ruled whether the use of the singular in the statute requires that an offer be made to each plaintiff singly. The following holdings from the Florida Supreme Court and Court of Appeals are illustrative:

Generally, an offeror must apportion an offer of settlement among offerees, whether the offerees are plaintiffs or defendants. See, e.g., Allstate Indem. Co. v. Hingson, 808 So.2d 197, 199 (Fla.2002) (holding that the old rule required an offer to multiple plaintiffs to be apportioned among the plaintiffs, even without the specificity requirement that was added to the rule in 1997); Dudley v. McCormick, 799 So.2d 436, 441 (Fla. 1st DCA 2001) (holding that Rule 1.442 requires that a joint offer made by a single defendant to two separate plaintiffs must specify the amount to go to each plaintiff); McFarland & Son, Inc. v. Basel, 727 So.2d 266, 270 (Fla. 5th DCA 1999) (“[A] general offer to a group of defendants without assigning each defendant a specific amount must be held to lack the particularity required by the rule.”); Ford Motor Co. v. Meyers ex rel. Meyers, 771 So.2d 1202, 1204 (Fla. 4th DCA 2000) (holding that a general offer made to two defendants was deficient even though there was an indemnification agreement between the two defendants);.... This specificity requirement, applied even prior to the amendment to Rule 1.442, allows each party to evaluate the offer independently. See C & S Chem., Inc. v. McDougald, 754 So.2d 795, 797-98 n. 3 (Fla. 2d DCA 2000).

Hilyer Sod, Inc. v. Willis Shaw Exp., Inc., 817 So.2d 1050, 1052 (Fla.App.2002). In Hi-lyer, the court noted that the Florida statute had been amended to require apportionment of offers of judgment between multiple plaintiffs. The court noted that if a single offer of judgment was made to multiple plaintiffs, the trial court would then be in the difficult position of determining whether either plaintiff qualified for an award of attorney fees based on the trial court’s own apportionment of the settlement offer among the plaintiffs. Id. citing Allstate Indem. Co. v. Hingson, 808 So.2d 197, 199 (Fla.2002).

¶ 15 Other courts have reached the same conclusion on this issue. In Weeks v. City of Colorado Springs, 928 P.2d 1346, 1351 (Colo.App.1996), a case involving derivative claims of parents for injuries to their child, the Colorado Court of Appeals held that an offer of settlement made to multiple,.plaintiffs must apportion the settlement amount among the plaintiffs and allow each plaintiff to decide independently whether to settle. Otherwise, an individual plaintiff cannot independently weigh the risks and benefits of the offer against the judgment that may be obtained for that plaintiff. Gavoni v. Dobbs House, Inc., 164 F.3d 1071 (7th Cir.1999), held that a joint offer of judgment to multiple plaintiffs is impossible for plaintiffs to evaluate or compare to, their likely recovery at trial and therefore is invalid to trigger the costs and attorney fees provision of Rule 68, Federal Rules of Civil Procedure, which is comparable to § 1101.1. The court in Gavoni noted that if a joint offer to multiple plaintiffs was allowed to trigger the costs rule, then courts would be faced with litigation over the proper allocation of the costs order between various plaintiffs who may have sought different amounts of damages. Lintz v. American. General Finance, Inc., 76 F.Supp.2d 1200 (D.Kan.1999) relied on Gavo-ni to reach the same result.

¶ 16 Haddock argues that her husband’s claim for loss of consortium was derivative of her claim for personal injuries and therefore Woodland Park’s Offer of Judgment to both plaintiffs together was valid. Haddock relies on Deocampo v. Ahn, 101 Cal.App.4th 758, 125 Cal.Rptr.2d 79 (2 Dist.,2002) which held that spousal plaintiffs could make a joint offer of settlement to a single defendant. Wiese v. Dedhia, 354 N.J.Super. 256, 806 A.2d 826 (A.D.2002) also held that a joint offer from spousal plaintiffs to an individual defendant was valid, where the offer of judgment statute referred to an offer from any party to any other party. These cases are distinguishable from the instant case at a minimum in that they involved an offer made by two plaintiffs to a single defendant. Additionally, those eases allowed an offer of settlement to be made by plaintiffs to defendants.

¶ 17 The Oklahoma offer of judgment statute, § 1101.1, does not allow a plaintiff to initiate an offer of settlement to a defendant. And, the Oklahoma statute uses the singular “any defendant” and “any plaintiff.” Most importantly though, we agree with the eases which find that an unapportioned offer to multiple plaintiffs prevents each plaintiff from evaluating the settlement offer against the value of his or her claim and would lead to confusion in apportioning the various plaintiffs’s responsibility for the attorney fees award after a judgment for less than the settlement offer. Even though the loss of consortium claim was derivative of Haddock’s claim, it is still unclear from Woodland Park’s offer of judgment which portion of the offer was directed to Haddock and which portion to her husband. Clarity requires separate offers to each plaintiff (or to “any plaintiff’ as the statute provides). We find no error in the implicit finding that Woodland Park’s Offer of Judgment, containing one amount to be accepted jointly by both plaintiffs, was invalid under § 1101.1.

¶ 18 Haddock next argues that the trial court erred in determining that her Counteroffer of Judgment was invalid. As noted above, § 1101.1 does not contain a provision for a plaintiff initiating an offer of judgment. Without a valid offer from Woodland Park, Haddock’s “counteroffer” was at best an offer of judgment, which is not embraced by § 1101.1. We conclude that the trial court correctly determined that Haddock’s counteroffer was invalid because Woodland Park’s offer was invalid.

AFFIRMED.

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

      . The Oklahoma Court of Civil Appeals has held that pre-judgment interest may be added to a verdict to determine the amount of judgment before comparing the amount of judgment to the amount of a rejected counteroffer, for purposes of awarding or not awarding attorney fees under § 1101.1. Morava v. Central Oklahoma Medical Group, Inc., 2001 OK CIV APP 84, 26 P.3d 779, 784 (cert.denied); Lawson v. National Steel Erectors Corp., 2000 OK CIV APP 69, ¶ 37, 8 P.3d 171, 179 (cert.denied).

      . Nothing in the record documents that the trial court made this decision before trial. But as will be discussed, the court’s order denying Haddock's application for attorney fees effectively granted her Motion to Strike the Offer of Judgment. And, in her Petition in Error and Brief, Haddock also asserts that the trial court ruled before trial that Woodland Park's offer of judgment was invalid.

      . Woodland Park additionally asserted 1) that Haddock's application for fees was deficient because it failed to distinguish between fees incurred on behalf of Haddock and those incurred pursuing her husband's claim; and 2) the hourly rate requested was unreasonably high for a personal injury case.