author: LARRY JOPLIN, Viece-Chief Judge.

text:
    2003 OK CIV APP 40
    BRITTON AND GRAY, P.C., Plaintiff/Appellee/Counter-Appellant, v. Debbie SHELTON, Defendant/Appellant/Counter-Appellee.
    No. 97,053.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Feb. 6, 2003.
    Certiorari Denied April 29, 2003.

      Lon J. Darley, III, Holloway, Dobéon & Bachman, Oklahoma City, OK, For Appellant.
    Michael D. Gray, Britton & Gray, P.C., Oklahoma City, OK, For Appellee.
   Opinion by

LARRY JOPLIN, Viece-Chief Judge.

11 Defendant Debbie Shelton (Client) seeks review of the trial court's order granting judgment to Plaintiff Britton and Gray, P.C. (Firm) on their prayer for declaratory relief and Client's counterclaims, by which the parties sought an adjudication of rights in and possession of certain documents following termination of their attorney-client relationship. In the principal appeal, Client asserts a superior right to possession of the documents, notwithstanding the Firm's assertion of a retaining lien to secure payment of legal fees earned. In the counter-appeal, the Firm challenges denial of post-judgment attorney's fees and costs.

the Firm's attorneys. T2 Client went to the Firm in the fall of 2000, seeking advice concerning a real estate purchase dispute, and consulted with one of Client executed an "engagement letter," by which she agreed to compensate the Firm for services rendered in any event. In the course of the representation, Client provided various original documents, including reports of experts, photos, real estate transaction documents and property appraisals which she had previously obtained and paid for.

3 Sometime in the first half of 2001, the attorney assigned to Client's case left the Firm and accepted employment with another law firm. In June 2001, Client terminated her relationship with the Firm and demanded possession of her file. Shortly thereafter, Client hired her former attorney (at his new firm) to pursue her claim, and the attorney also demanded possession of Client's file. The Firm responded, asserting a retaining and/or possessory lien on the property demanded, and sought payment of its earned fees as a condition precedent to return of the property.

T4 On August 7, 2001, Firm commenced this action, seeking a declaration of the validity and superiority of its retaining lien. Client responded, asserting counterclaims for conversion, consumer fraud, negligence, tor-tious breach of contract and replevin, all (or most) premised on the same allegations of Firm's wrongful retention of her file and documents.

15 On September 14, 2001, Firm filed a motion for summary judgment, setting forth legal authorities and evidentiary materials argued to demonstrate its superior retaining lien claim to the contents of Client's file, including Client's original documents which she provided. On October 1, 2001, Client filed her objection and response to the motion for summary judgment, asserting insufficiency of the record, and need for further discovery. Client also submitted authorities and materials argued to show her superior right to the materials.

T6 On October 12, 2001, the trial court granted Firm's motion for summary judgment in all respects. Client then commenced the instant appeal. Upon the trial court's denial of the Firm's post-judgment application for an award of attorney's fees and costs, the Firm filed a counter-petition in error, challenging the trial court's post-judgment order.

17 "Oklahoma law recognizes two types of lien by which a lawyer may secure payment for services: (1) a statutory charging lien and (2) a common-law general possessory or retaining lien." State ex rel. Oklahoma Bar Ass'n v. Cummings, 1998 OK 127, ¶ 12, 863 P.2d 1164, 1168-69. "A lawyer can assert a [statutory] ... charging lien [pursuant to 5 O.S. § 6] only when he (or she) has commenced an action on behalf of a client or filed an answer containing a counterclaim, and endorsed on the pleading a notice of a lien claim{,] [and the] charging lien ... attach[es] to the ultimate verdict, report, decision, finding or judgment that is entered in a client's action or counterclaim." Cummings, 1993 OK 127, ¶ 12, 863 P.2d at 1169.

¶8 On the other hand, the common law retaining lien is but "a lawyer's claim to retain a client's papers, money or property in his (or her) possession until the fee is satisfied." Cummings, 1993 OK 127, ¶ 13, 863 P.2d at 1169-70. The claimed attorney's fees secured by the retaining lien must in all cases be "properly chargeable" and reasonable. Cummings, 1993 OK 127, ¶ 13, 863 P.2d at 1169; Republic Underwriters v. Duncan, 1985 OK 30, ¶ -, 713 P.2d 568, 572. And, obviously, there must be attorney's fees due and owing.

T9 The retaining lien generally attaches to all property, papers, documents, securities and monies of the client coming into the hands of the attorney in the course of the professional employment. See, e.g., Roxana Petroleum Co. of Oklahoma v. Rice, 1924 OK 1042, 109 Okla. 161, 235 P. 502. However, "a lawyer [may not] take money or property entrusted to him for a 'specific purpose' and apply it to the attorney's fee claim." Cummings, 1998 OK 127, ¶ 14, 868 P.2d at 1170; State ex rel. Oklahoma Bar Ass'n v. Meek, 1994 OK 118, ¶ 10, 895 P.2d 692, 698.

10 In this respect, the Rules Governing Disciplinary Proceedings provide:

Where money or other property has been entrusted to any attorney for a specific purpose, he must apply it to that purpose. He may not avail himself of a counterclaim or setoff for fees against any money or other property of his client coming into his hands for such specific purpose, and a refusal to account for and deliver over such money or property upon demand shall be deemed a conversion. This does not apply to the retention of money or other property otherwise coming into the hands of a lawyer and upon which the lawyer has a valid lien for his services.

- Rule 14(b), Rules Governing Disciplinary Proceedings, 5 O.8., Ch. 1, App. 1-A. While the rule refers to money "or other property," the three Oklahoma cases concerning retaining liens and "specific purpose" deal either with money or shares of stock. Cummings, 1993 OK 127, ¶ 17, 863 P.2d at 1170-71 (money paid to attorney, originally designated for the "specific purpose" of taking a deposition, not subject to retaining lien); Meek, 1994 OK 118, ¶ 10, 895 P.2d at 698 (attorney had no retaining lien on check from client's former spouse, delivered to the attorney as payment for past support alimony.) State, ex Rel. Oklahoma Bar Association v. Briggs, 1999 OK 76, ¶ 15, 990 P.2d 869, 872-873 (sale of stock to pay attorney's fee permitted since stock given for that purpose.)

{11 Although there are no Oklahoma cases discussing "other property," the Supreme Court in Cummings cited Brauer v. Hotel Associates, Inc., 40 N.J. 415, 192 A.2d 831 (1963). In Brauer, the attorneys obtained possession of certain corporate books and records in their capacity as registered corporate agent, but obtained other corporate documents and records in the course of their representation of the corporation in other matters. The New Jersey Supreme Court held that the documents obtained by the attorneys in their capacity as corporate agent were not subject to a retaining lien because "possession of the property [was] maintained for a special purpose inconsistent with his claim to a lien." Brauer, 192 A.2d at 834. However:

As to [the] other records it is clear that they were received solely with respect to and in the course of professional services and not as statutory agent. Even though the lien may not properly be asserted against those records which were kept by [the attorney] in his statutory capacity as registered agent of the corporation, [the . law firm] received the other corporate records in its professional capacity and may therefore assert its retaining lien against them. It is not essential that all of its services be devoted to the property upon which the firm asserts a lien. It is only necessary that what it possesses has been obtained by virtue of its professional employment.

Brauer, 192 A.2d at 834.

112 Two things seem clear in the "specific purpose" analysis of retaining liens when dealing with property other than money. First, the retaining lien attaches to a client's original documents delivered to the attorney in the course of the client's representation. Second, the retaining lien does not attach to a client's books, papers and other property if delivered to the attorney for a specific purpose different from that representation for which the attorney was hired.

113 According to her affidavit in the present case, Client sought return of her original documents and photographs which she provided "for the specific purpose of having my attorney ... review, assess and hold the documents as exhibits and evidence of claims I intend to pursue ... [,] trusting the exhibits and evidence would be safely kept until needed in the anticipated litigation." (Emphasis original.) This review, assessment and safe keeping for use in a future trial, it seems to us, are all aspects of the "professional services" which Client initially hired the Firm to perform. They were not provided for a "specific purpose" unrelated to the anticipated litigation, and we hold Client's original documents are subject to the Firm's retaining lien.

{14 However, and contrary to the trial court's conclusion, the inquiry does not stop here. This is so because there is evidentiary material in the record where client alleges prejudice to her without these documents. Particularly, she asserts that these doeu-ments are now fundamental to pursuit of her claim for which she initially hired Firm, and that withholding these documents from her and her substitute counsel frustrates that purpose, and impedes her "ability to pursue the claims."

{15 Generally, the only advantage an attorney derives from the "ancient retention power" "recognized since earliest time" is some leverage to induce the client to settle the fee dispute. Most often, a client settles because of embarrassment or inconvenience: V

... [The effectiveness of the lien is proportionate to the inconvenience of the client in being denied access to his property. The focal point is not upon the objective worth of the property, but upon its subjective worth to the client and those who represent him. If the property loses this latter value, the attorney's possession becomes meaningless, and his passive lien, to all effects, worthless. Therefore, if is the inconvenience suffered by the client . which determines the value of the lien, and if the client or his representative considers the elimination of this inconvenience to be as valuable as the amount of the attorney's charges, then the client will satisfy the charges, the lien will dissolve, and the client's property will be returned. (Citations omitted.)

Brauer, 192 A.2d at 835. (Emphasis added.) As the Supreme Court observed in Cummings, "[al client who values the property retained by the lawyer will doubtless attempt to redeem it from the lien." 1993 OK 127, ¶ 13, 863 P.2d at 1169, fn. 24.

{ 16 At some point, however, an attorney's claimed retaining lien may cross the line from mere inconvenience or embarrassment to potential harm or prejudice.

T17 Other jurisdictions have occasionally addressed this issue. For public policy reasons, some courts have refused to enforce the retaining lien when a client's important liberty interests are at stake, such as when the papers in the attorney's possession are essential to defense of a criminal charge. Jenkins v. Weinshienk, 670 F.2d 915 (10th Cir.(Colo.) 1982). California has held that where the subject matter of an attorney's lien is of no economic value to the attorney, but is used only to extract disputed fees from his client, the lien is void as against public policy and unenforceable. Academy of Calif. Optometrists, Inc. v. Superior Court, 51 Cal.App.3d 999, 124 Cal.Rptr. 668 (3rd Dist.1975). This holding was not limited to books and papers originally given to the attorney, but applied to all pleadings, depositions, papers, memorandums, work product, and the entire contents of the client's file "collected during five years of representation." 51 Cal.App.3d at 1004, 124 Cal.Rptr. 668.

118 Although the retaining lien is derived from common law, no Oklahoma court has answered the question of whether an attorney in Oklahoma may exercise the ancient retention right despite any resulting prejudice to the client. However, the Oklahoma Rules of Professional Conduct specify:

Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that 'has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.

Rule 1.16(d), Rules of Professional Conduct, 5 O.8., Ch. 1, App. 3-A. While the outer limits of "the extent permitted by other law" has not been judicially determined, the comment to Rule 1.16(d) seems to shed some light:

Even if the lawyer has been unfairly discharged by the client, a lawyer must take all reasonable steps to mitigate the consequences to the client. The lawyer may retain papers as security for a fee only to the extent permitted by law.

$19 The rule imposes a mandatory obligation on an attorney to mitigate the consequences of the severed attorney-client relationship, and requires the attorney to "surrender" the client's papers. The rule also permits an attorney to retain the client's papers to secure payment of earned and unpaid fees, but only as allowed by law. The contrast between the mandatory obligation to surrender the client's papers, and the permissive retention right, suggests to us that, all other things being equal, the right of the client to possession of his or her books and papers prevails over the attorney's retaining lien rights in the case of conflict between the two. This must be so because the assertion of a retaining lien that causes prejudice to a client is inconsistent with the lawyer's continuing duty to his client, particularly since other legal methods are available to collect the fee. So, in a conflict between an attorney's retained possession and prejudice to the client, a balancing of the competing rights must be undertaken.

120 In this respect, we find illuminating and persuasive a decision of the Arizona Supreme Court. National Sales & Service Co., Inc. v. Alper, 136 Ariz. 544, 667 P.2d 738 (1983). There, a dispute arose between the client's former and successor attorneys concerning the right to possession of the client's "files," including certain corporate books and records. On the validity of the former attorneys' asserted retaining lien, and relying on the Arizona Code of Professional Responsibility, the Restatement of Laws, Securities, and the Restatement of Laws, Second, Agency 2d, the Arizona Supreme Court held an attorney's retaining lien must yield where the assertion of a lien is inconsistent with the attorney's duties to and rights of the client:

Because of the broad range of tasks a lawyer might undertake for a client, there can be no question that some of a lawyer's duties can be inconsistent with the assertion of his lien rights. It is our task, therefore, to examine this case for cireum-stances such as duties imposed by the Code of Professional Responsibility which limit the nature and extent of the attorney's retaining lien. The extreme limits of the reach of the lien are obvious. For example, we believe it is proper for the lien to apply to the lawyer's, and his staff's, research notes and internal memoranda concerning the case. This kind of paper work, the work product of the lawyer's efforts, is clearly the lawyer's property and remains his property at least until he is paid.
On the other hand, we believe it is improper for the lien to attach to a document given by the client to the lawyer for a purpose inconsistent with the fixing of a lien upon it. If, for example, a client brings an original document or instrument to a lawyer for delivery to another, then the client's purpose is inconsistent with the fixing of a lien upon the document or instrument. (Citation omitted.) Likewise, if a client brings some book, document or other chattel to his lawyer for use as an exhibit at an impending trial, the client's purpose is inconsistent with the fixing of a lien upon the document. In either of the above cases the lawyer's duty to seek his client's lawful objectives and to avoid prejudice or damage to his client are inconsistent with his assertion of a retaining Hien.

Alper, 667 P.2d at 740. (Emphasis added.)

Consequently, where as here, a client furnishes to an attorney original documents needed for anticipated litigation, and the client alleges that he or she cannot pursue the claim further without those doeu-ments, the trial court must determine (1) whether the client will suffer serious consequences without them, and (2) whether any prejudice to the client can be mitigated by means other than a return of the documents. If not, the attorney's right to possession of the client's documents-inconsistent with the continuing duty to the client-must yield. While each case will turn on its own particular facts and circumstances, only in this way may the rights of the attorney and client be balanced.

122 Since a valid retaining lien only attaches when there are reasonable fees due and owing, the attorney bears the burden of proof on this issue. If met, the client bears the burden of showing prejudice.

T23 In the present case, however, the evidence is conflicting on whether Law Firm's claimed fees where due, owing and reasonable. And, while it is anything but clear whether Client will be able to meet her burden of proof on the issue of prejudice, the trial court did not allow further discovery, and did not undertake any balancing of the parties' respective rights, The cause must consequently be remanded to the trial court for a proper balancing of interests.

The trial court's order granting judgment to the Firm is REVERSED, and the cause REMANDED for further proceedings consistent with the views we have expressed.

JONES, J., and BUETTNER, J., concur.

      . Client paid $6,250.00 in attorney's fees and costs, and according to Firm, still owed $4,381.78 for unpaid professional services. |

      . The matter stands submitted for accelerated review on the trial court record. Rule 13(h), Rules for District Courts, 12 O.S. Supp.1993, Ch. 2, App., and Rule 1.36, Oklahoma Supreme Court Rules, 12 O.S. Supp.1997, Ch. 15, App.

      . Held, terminated attorney's "release of the [settlement] draft to be deposited with the clerk of the trial court was not such release of possession as to destroy [his] retaining lien," but terminated attorney is not "relieved from litigating with [his former employer] the reasonableness of the charges secured by the lien for [his] legal services on a quantum meruit basis," and cause remanded for further proceedings.

      . Cummings, 1993 OK 127, ¶¶ 12, 13, 863 P.2d at 1169, fn. 17, 23.

      . In her complaint to the Oklahoma Bar Association, attached to the Firm's reply to her objection to summary judgment, Client stated:
      I need the exhibits and evidence from my file with [the Firm]. I am concerned that I will be required to produce the exhibits and evidence to support my claims in discovery. [My attorney] has recommended that suit involving these claims not be filed without having these items available. I am concerned that some of my claims cannot be proven if I an unable to obtain the documents from [the Firm].

      . Cummings, 1993 OK 127, ¶ 13, 863 P.2d at 1170.

      . In re Choate, 1935 OK 936, ¶ 13, 174 Okla. 446, 50 P.2d 706, 709; Roxana Petroleum Co., 1924 OK 1042, ¶ 16, 235 P. at 507.

      . Burns v. Pratt, 1934 OK 191, ¶ 10, 167 Okla. 546, 31 P.2d 106, 108 (a retaining lien carries with it no right of foreclosure, but "is valuable to the attorney [only] in proportion to the extent that such retention by him will embarrass the client. ...")

      . "Comments do not add obligations to the Rules but provide guidance for practicing in compliance with the Rules.... The Comment accompanying each Rule explains and illustrates the meaning and purpose of the Rules.... The Comments, which embody Oklahoma changes, are intended as guides to interpretation, but the text of each Rule is authoritative." Rules of Professional Conduct, 5 O.S., Ch. 1, App. 3-A, Preamble, Scope.

      . See, State, ex rel. Oklahoma Bar Association v. Bolusky, 2001 OK. 26, 23 P.3d 268; State, ex rel. Oklahoma Bar Association v. Vincent, 2002 OK 40, 48 P.3d 797.

      . Le., that the originally furnished documents may be available from another source, or that authenticated copies may be substituted.

      . Assuming Law Firm can meet its burden of proof, and consequently the right to a retaining lien, this would necessarily dispose of any of Client's counter-claims based solely on the wrongful withholding of documents. To the extent the Firm rightfully asserted its retaining lien, but because Oklahoma jurisprudence previously provided no guidance on the reach of a retaining lien vis-a-vis a client's original papers and documents, the Firm could hardly bear liability for any of the negligent, intentional or bad faith conduct for wrongful retention that Client charges.

      . There is a suggestion in the record that Client possesses copies of everything she seeks.

      . Absent an adjudication of the rights of the parties to possession of the subject books and papers, and in view of our remand for further proceedings, there is no judgment on which to premise a postjudgment quest for attorney's fees, and Firm's challenge to the trial court's post-judgment denial of its application for attorney's fees and costs is moot.


source: Caselaw Access Project

author: JOHN F. REIF, Judge.

license: Public Domain

text:
    2003 OK CIV APP 46
    MID-CONTINENT GROUP, a domestic insurance company, Plaintiff/Appellant, v. Melissa HENRY and Billy Henry, husband and wife, Defendants/Appellees.
    No. 97,617.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    March 4, 2003.
    Certiorari Denied May 13, 2003.

      Truman B. Rucker, Truman B. Rucker, P.C., Tulsa, OK, for Appellant.
    Donald E. Cummings, Cummings and Associates, Tulsa, OK, for Appellees.
   JOHN F. REIF, Judge.

T1 This case concerns the right of an insured to stack uninsured motorist coverage under an automobile insurance policy covering multiple vehicles, but also containing a per policy limit on uninsured motorist coverage. Upon the presentment of cross-motions for summary judgment by the parties, the trial court ruled that the insured could stack the uninsured motorist coverage. We review this matter on the record actually presented to the trial court.

¶ 2 The insureds argued that the uninsured motorist coverage was stackable because (1) the policy in question was a new policy that was issued after their original policy lapsed for nonpayment of the premium; (2) the new policy insured three vehicles, while the original policy insured only two; (8) no written election form or other notice concerning uninsured motorist coverage was provided to or executed by the insureds prior to the issuance of the new policy; and (4) uninsured motorist coverage was imputed to all three vehicles which, in turn, was stackable in the absence of prior written notification of the per policy limit. Insureds rely on Withrow v. Pickard, 1995 OK 120, 905 P.2d 800, and Scott v. Cimarron Ins. Co., 1989 OK 26, 774 P.2d 456, to support this position.

T 3 Mid-Continent Group, the issuer of the policy, contended that (1) the policy was a "reinstatement" of the original policy, (2) the election and notices given the insureds at the time of the original policy show the insureds knew coverage was limited to a per policy basis, and (8) stackable uninsured motorist coverage is not required so long as the policy clearly informs the insureds about the per policy limit of coverage and only one premium for uninsured motorist coverage is charged and collected. Mid-Continent likewise relies on Withrow to support its position.

14 Mid-Continent correctly asserts that an insurer is not required to offer or sell stackable uninsured motorist coverage. However, that is not the problem in this case. The problem is how to treat uninsured motorist coverage under a policy covering multiple vehicles when the insurer does not obtain a signed election concerning uninsured motorist coverage or give notice of a non-stacking limitation prior to issuing the policy.

15 In answering this question, we first reject Mid-Continent's contention that the new three-vehicle policy in question was simply a reinstatement or renewal of the original two-vehicle policy. The case of Beauchamp v. Southwestern National Insurance Company, 1987 OK 111, ¶ 10, 746 P.2d 673, 676, clearly teaches that the addition of the third vehicle resulted in a new policy and not a renewal. Beauchamp is also clear that an insurance company's "failure to offer uninsured motorist coverage with the new policy, and the attendant failure to obtain a written rejection required by 86 O.S.1981 § 3636(F), resulted in the inclusion of uninsured motorist coverage as part of the policy by operation of law." Id. at ¶ 12, 746 P.2d at 676.

16 Even though uninsured motorist coverage is for the benefit of people, the legislature expressly provided that it is tied to the issuance of insurance for "a motor vehicle." 36 O.S.2001 § 3636(A). Where multiple vehicles are insured, there must be uninsured motorist coverage for each vehicle. In the instant case, uninsured motorist coverage is imputed by operation of law to all three vehicles, because the policy was a new policy as to all three vehicles.

T7 In the Withrow case, the Oklahoma Supreme Court took great care to distinguish Withrow from Beauchamp by noting "unlike the insureds in Beauchamp, Withrow was offered UM coverage with his new policy." 1995 OK 120, ¶ 19, 905 P.2d at 805. Given this fact, they concluded in Withrow "[the result reached in Beauchamp is unwarranted here [ie., in Withrow ]" Id. We find the result in Beauchamp is clearly warranted in the instant case.

18 However, the fact that uninsured motorist coverage is imputed to all three vehicles under Beauchamp does not ipso facto mean such coverage is stackable. In this regard, we must apply the test in Withrow:

Limiting an insurer's liability to single UM coverage, where multiple vehicles are insured under one policy, is not against public policy when only one premium is charged for UM coverage and the policy clearly shows that the insured intended to agree to such a limitation.

1995 OK 120, ¶ 23, 905 P.2d at 806. Under ' this test, an insurer must satisfy both the single premium requirement and demonstrate that the insured intended to accept a per policy limit.

19 In determining "intent" where a new policy is issued to replace an original policy,. Withrow recognizes that there is a burden on "the insurer [to] inform the insured of all UM coverage options ... regardless of the existence or amounts of UM coverage under the original policy." Id. at ¶ 22, 905 P.2d at 806 (emphasis added). The Oklahoma Supreme Court made it clear that an insurer's attempt to limit uninsured motorist coverage to a per policy basis, and avoid stacking of multiple coverage, is effective "only after [the insured is] armed with such information that an insured can make informed choices regarding UM coverage." Id. (emphasis added). In other words, notice of all UM coverage options and a per policy limitation must precede the issuance of the policy. Such prior notice is required "regardless of the existence or amounts of UM coverage under [a prior] policy." Id.

€ 10 Where uninsured motorist coverage of multiple vehicles is imputed as a matter of law, and the insurer has not given any notice to the insured prior to the issuance of the policy of its intent to avoid stacking and limit its uninsured motorist coverage to per policy coverage, there can be no informed choice or intent to agree that uninsured motorist coverage on multiple vehicles will not be stacked. In such instances, the insured is entitled to stack uninsured motorist coverage on multiple vehicles insured by the policy.

11 We hold that the trial court did not err in ruling that the insured herein could stack the uninsured motorist coverage on the three vehicles insured by the policy in question. Accordingly, we affirm the judgment in favor of the insureds, allowing an additional recovery under the policy of $20,000.

112 AFFIRMED.

GOODMAN, P.J., and RAPP, J., concur.


author: BAY MITCHELL, Presiding Judge:

text:
    2003 OK CIV APP 36
    The CITY OF MIDWEST CITY, Plaintiff/Appellant, v. The PUBLIC EMPLOYEES RELATIONS BOARD and The Fraternal Order of Police, Lodge No. 127, Defendants/Appellees.
    No. 97,820.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    March 7, 2003.

      Margaret McMorrow-Love, Oklahoma City, OK, for Plaintiff{/Appellant.

      James R. Moore, Douglas D. Vernier, James R. Moore & Associates, P.C., Annette H. Prince, Assistant Attorney General, Oklahoma City, OK, for Defendants/Appellees.
   Opinion by

BAY MITCHELL, Presiding Judge:

{1 On November 80, 2000, Fraternal Order of Police Lodge No. 127 ("Lodge 127"), filed an unfair labor practice charge ("ULP") with the Oklahoma Public Employees Relations Board ("PERB") against the City of Midwest City ("City") alleging that City had violated the Fire and Police Arbitration Act ("FPAA") by entering into individual employment agreements with patrol-officer applicants that were conditioned on certain physical fitness standards. Lodge 127 claimed that the fitness standards were a mandatory subject of bargaining and that City's conduct in entering into those agreements with applicants, and declaring later that it would enforce them against employees, violated the FPAA, 11 O.S. § 51-102(6a)(1), (5). PERB issued a cease-and-desist order against City. City appealed to the District Court, which affirmed. Finding PERB's facts and conclusion to be supported by substantial evidence and its order to be within its statutory authority and free of error, we affirm.

Procedural History

T2 The parties agreed to waive testimony and submit the case to PERB on the undisputed facts and written briefs of the parties. On September 12, 2001, after oral argument from both sides, PERB dismissed as untimely those portions of the ULP that pertained to individual contracts executed by applicants between 1994 and 1999, but held that the re-execution of those agreements in 1999 constituted an unfair labor practice. PERB ordered City to cease and desist from executing such individual employment contracts in the future, and from enforcing or threatening to enforce any existing fitness contracts.

T3 On October 12, 2001, City filed a petition for judicial review with the district court under the Oklahoma Administrative Procedure Act ("APA"), 75 O.S. § 301 et seq., asserting that PERB had acted in disregard of competent, material, and substantive evidence in rendering its opinion and findings of fact, and that it had exceeded its authority in issuing its cease-and-desist order. On May 8, 2002, after reviewing the briefs on appeal, the trial court entered an order affirming PERB. This appeal ensued.

Factual Summary

14 Appellant City is a municipal corporation organized and existing pursuant to the laws of the State of Oklahoma. Appellee Lodge 127 is the certified bargaining agent for certain members of City's police department. From 1994 through 1999, City extended conditional offers of employment to successful applicants for the position of pa- - trol officer with City's Police Department. City conditioned its offers of employment on each applicant signing a Contract for Physical Fitness Requirement ("Contract"). Each of the thirty-six individuals City hired as patrol officers from 1994 through 1999 executed the Contract in their capacity as applicants. '

1 5 The Contract required the officer applicants to comply with City's physical fitness standards and submit to semi-annual testing to determine compliance. Although the Contract references the physical fitness standards as "attached," the standards were not affixed to the Contract. City alleges that it tested officers for fitness compliance from 1994 forward, but PERB found that City had neither enforced the individual Contracts, nor taken disciplinary action against any of the affected officers during that time.

16 In the fall of 1999, after City determined that the originals had been lost or misplaced, each of the thirty-six patrol officers who originally signed the Contracts as applicants re-executed the Contracts. At the time of re-execution, all thirty-six patrol officers were City employees, not applicants or probationary employees, and thus members of the bargaining unit represented by Lodge 127 and covered by the CBA. On October 1, 2000, Lodge 127 submitted written notice to City of its objection to the required execution of the Contracts as a condition of employment for the thirty-six officers and challenged the Contracts' validity. On October 13 and again on November 15, 2000, City Manager informed Lodge 127 in writing that it believed the individual Contracts to be valid and enforceable against employee members of the bargaining unit.

T7 Although the collective bargaining agreements ("CBAs") that City and Lodge 127 entered into from 1994 through 1999 all contained formal grievance and arbitration procedures mandated by the FPAA, neither Lodge 127 nor any of its members filed grievances during that period: regarding City's requirement that applicants execute the Contract. Similarly, Lodge 127 never raised the Contract issue in negotiations for CBAs during that time, nor for the FY 2000-2001 CBA, even though the bargaining related to that agreement occurred after the thirty-six officers employees re-executed the Contract in 1999.

T8 Article 83 of the FY 2000-2001 CBA, entitled "Health Physical," provides that:

Section 1: The Employer agrees to provide at no cost to the employee a voluntary examination at a minimum of every five (5) years. At least one physical each five (5) years shall consist of the following:
e History and physical
e Audiometric Testing
e Office battery to include: urinalysis ° Chem 25, CBC,
® Lipid battery
e EKG (6 lead)
e X-Ray chest and spine
e Pulmonary function exam
e Cybex evaluation or comparable assessment
(a) Exercise tolerance test
Section #: The Employer and employee shall each receive a copy of the results of the medical evaluation.
. Section 8: All officers with even year employment anniversary dates will be allowed to begin their physical during 1989-90 contract term. All other officers with odd year employment dates will be allowed to begin their testing during 1990/91 contract term. The test will be administered during the employee's anniversary month.
Section 4: The examination shall be done with pay at a straight-time rate.

The FY 2000-2001 CBA also includes a management rights clause at Article 5 that permits City "[tlo determine and enforce Police Department policy, rules, regulations and orders, including the right to manage the affairs of the Police Department, so long as they do not affect mandatory subjects of bargaining which are required to be negotiated." Within this limitation, City's rights under Article 5(G) also include the authority "Itlo determine the safety, health and property protection measures for the Police Department."

Standard of Review -

T9 Because City brings its appeal in this case undér the APA, 75 O.S. § 818, this Court's review is limited to the record made before the PERB. 75 O.S. § 321. "Appellate courts review the entire record made before an administrative agency acting in its adjudicatory capacity to determine whether the findings and conclusions set forth in the agency order are supported by substantial evidence." City of Hugo v. PERB, 1994 OK 134, ¶ 9, 886 P.2d 485, 490. "An appellate court may not substitute its judgment for that of an agency, particularly in the area of expertise which the agency supervises." Id., 1110. "If the facts determined by the administrative agency are supported by substantial evidence, and the order is otherwise free of error, the decision of the agency must be affirmed." Tulsa Area Hospital Council, Inc. v. Oral Roberts University, 1981 OK 29, ¶ 10, 626 P.2d 316, 320.

1 10 Reversal is appropriate if we find that the agency made its decision "in excess of statutory authority or jurisdiction" or entered its order "based on an error of law." City of Tulsa v. Pub. Employees Relations Bd., 1998 OK 92, ¶ 12, 967 P.2d 1214, 1219. "Reversal is also appropriate if the agency's findings are clearly erroneous in view of the reliable, material, probative and substantial competent evidence in the record." Id., ¶13.

Analysis and Review

%11 City contends on appeal that the district court committed reversible error in failing to find that: (1) PERB disregarded competent, material, and substantive evidence of City's valid past practice in the execution and enforcement of the Contracts from 1994 through 1999; (2) PERB disregarded competent, material, and substantive evidence that the terms and conditions of employment existing between City and members of Lodge 127 were the established sto-tus guo and had not been unilaterally altered by City in violation of the CBA; (8) PERB disregarded competent, material, and substantive evidence pertaining to the reservation of management rights under the CBA; (4) PERB disregarded competent, material, and substantive evidence pertaining to Lodge 127s failure to negotiate in good faith for any change in established past practice as mandated by the FPAA; (5) PERB exceeded its statutory authority under 11 O.S. § 51-104b(C) by issuing a cease-and-desist order in the absence of evidence that City's conduct violated the FPAA; (6) PERB exceeded its statutory authority under 11 O.S. § 51-104b(C) by issuing a cease-and-desist order purporting to address issues not encompassed within the ULP-specifically the re-execution of agreements in 1999-thus impairing legitimate contractual relationships between City and Lodge 127, including the grievance process contained in the CBA as mandated by the FPAA; and (7) the cease- and-desist order was overly broad in seope and impacted the exercise of management rights acknowledged in the CBA, which rights are subject to good faith bargaining pursuant to the FPAA. In sum, City disputes several of PERB's factual findings and argues that PERB exceeded its authority in issuing the cease-and-desist order.

112 Because they were applicants at the time, Lodge 127 did not represent any of the thirty-six patrol officers when they originally signed the fitness Contracts. An officer does not become a member of the bargaining unit and cannot be represented by a bargaining agent until after a twelve month probationary period passes from date of hire. Fraternal Order of Police, Lodge 108, v. City of Ardmore, 2002 OK 19, ¶¶ 14, 16, 44 P.3d 569, 573. The CBA between City and Lodge 127 covered only employee members of the bargaining unit, not applicants.

113 City argues that the fitness Contracts are enforceable as past practice based upon the longevity of the physical fitness requirements in regard to applicants coupled with the failure of Lodge 127 to object to the conditions through a formal grievance. City further maintains that it cannot be said to have unilaterally altered the terms and conditions of the patrol officers' employment because the fitness standards were the established status guo.

T14 "In approaching a dispute between a[CBA] and a past practice, the starting point of the analysis must be the language of the contract. If the contract language is unambiguous, then it must be regarded as conclusive notwithstanding a contrary past practice. If, however, the contract language is ambiguous, then past practice may be examined to determine the nature of the parties' agreement." CBI Services v. United Paperworkers Int'l Union, AFL-CIO, Local 50002, 98 Lab. Arb. (BNA) 1111, 1114-15 (1992) (Cohen, Arb.).

15 The language in the CBA regarding fitness testing appears under the heading "Health Physical" in Article 38. It states that City will offer to each bargaining unit member, on a voluntary basis, a no-cost physical exam, to include an exercise tolerance test, at least onee every five years and as often as onee every other year. Unlike the fitness Contracts, Article 33 of the CBA does not condition employment on successful completion of the physical exam, nor does it set forth particular fitness standards that patrol officers are expected to meet.

116 It is well-settled that an individual hiring contract is subsidiary to the terms of the collective bargaining agreement and may not waive any of its benefits. J.I. Case Co. v. NLRB, 321 U.S. 332, 336-38, 64 S.Ct. 576, 88 L.Ed. 762 (1944). The benefits and advantages of the CBA are available to every covered bargaining unit member, regardless of the terms of a pre-existing contract of employment. Id. at 387-88. Accordingly, because the terms of Article 88 are unambiguous, and the individual Contracts are subsidiary to the CBA, City's statement of intent to enforce fitness requirements and testing against thirty-six members of the bargaining unit beyond those set forth in Article 33 violates the FPAA.

117 Consideration of City's "past practice" evidence leads us to the same conclusion. While it is true that "[all rules, regulations, fiscal procedures, working conditions, departmental practices and manner of conducting the operation and administration" of City's police department that were in ef-feet upon the effective date of the CBA are deemed to be part of the CBA, 11 0.8.2001, § 51-111, past practice is binding on both parties only if it is (1) unequivocal; (2) clearly enunciated and acted upon; and (8) readily ascertainable over a reasonable period of time, as a fixed and established practice accepted by both parties. Celanese Corp. of America, 24 Lab. Arb. (BNA) 168, 172 (1954) (Justin, Arb.); Int'l Assn. of Fire Fighters Local 1881 and City of Ardmore, FMCS Arb. No. 90-22990 (1990) (Springfield, Arb.).

118 Given that the Contracts did not include the specific fitness standards to which they referred, City's alleged past practice can hardly be said to be either unequivocal or clearly enunciated. Furthermore, City did not announce its belief that the Contracts were enforceable against employees until the fall of 1999. The Contracts previously had been signed ouly by applicants, whom the CBA did not bind and Lodge 127 did not represent. -In addition, it is undisputed that, since their inception in 1994, City has never disciplined an officer for failing to meet the Contract standard. Moreover, the time period between the 1999 re-execution of the Contracts and Lodge 127s filing of the ULP later that year-during which time City admittedly failed to enforce the Contracts pending review by a newly-created physical fitness committee-was plainly insufficient to establish terms and conditions of employment related to physical fitness that were "readily ascertainable over a reasonable period of time, as a fixed and established practice accepted by both parties."

T19 Because the fitness standards do not qualify as a valid past practice or settled status guo, City's claim that Lodge 127 did not meet its obligation to negotiate and bargain in good faith over them fails as well. Pursuant to the terms of the FPAA, a municipality and the bargaining agent for police officers may enter into negotiations for annual collective bargaining agreements during which they are required to negotiate in good faith. 11 O.S. $ 51-111. To be valid, however, a good-faith claim must pertain to a party's failure to negotiate established terms and conditions of employment.. Given our determination that the fitness standards do not qualify as a valid past practice or the settled status quo, they were not established terms and conditions of employment subject to a good-faith bargaining and negotiation requirement.

120 City's management-rights claim fails for similar reasons. Under the FPAA, mandatory subjects of bargaining include "wages, hours, and other conditions of employment." 11 0.8.2001 $ 51-102(5). An employer is allowed to alter the terms and conditions of employment only "when a management rights clause evidences a grant of permission by the union to unilaterally effect such changes." I.A.F.F. local 2171 v. City of Del City, PERB Case No. 194 (1990); Continental Tel. Co., 274 NLRB 1452 (1985). While the management rights clause of the FY 2000-2001 CBA permits City "[to determine the safety, health and property protection measures for the Police Department," it may "determine and enforce Police Department policy, rules, regulations and orders . so long as they do not affect mandatory subjects of bargaining which are required to be megotiated." Given that the fitness requirements affect the terms and conditions of the patrol officers' employment and were not a valid past practice, they constitute a mandatory subject of bargaining to which City may not effect unilateral changes.

121 We thus reject City's challenges to PERB's factual findings and hold that they are supported by substantial evidence.

122 In addition to its disagreement with PERB's factual findings, City also maintains on appeal that PERB exceeded its authority in issuing its cease-and-desist order. In its ULP, Lodge 127 alleged:

City has violated the FPAA by entering into individual employment agreements regarding physical fitness standards with police officers prior to their date of employment with the City. City has expressed the intent to enforce these individual agreements after officers become part of the collective bargaining unit. City has not bargained these fitness standards with the FOP, the bargaining agent for said officers. Said standard, and other terms of the individual agreements, are mandatory subjects of bargaining under the FPAA. City's conduct in attempting to enforce individual contracts with unit members violates the Act. City's conduct in creating and enforcing terms and conditions of employment without an agreement with the FOP violates the terms of the Act.

The test of unfair labor practice "is not whether the attempt to intimidate, interfere, 'or coerce succeeded or failed, but that the conduct was such that it tends to interfere with the free exercise of those rights." DeQueen Gen. Hosp. v. NLRB, 744 F.2d 612, 614 (8th Cir.1984).

128 City claims that PERB exceeded its authority when it addressed the 1999 re-execution of the Contracts, because the ULP did not address re-execution. While it is true that the word "re-execution" does not appear in the narrative portion of, Lodge 127s charge, the pleading refers to City's "intent to enforce these individual agree-'eants only. ments after officers become part of the collective bargaining unit" and "conduct in attempting to enforce individual contracts with unit members." It is disingenuous for City to claim that such references to enforceability against bargaining unit members did not put it on notice that Lodge 127 was referencing the re-executed Contracts. The original Contracts were enforceable against appli-It was their re-execution by members of the bargaining unit that caused Lodge 127s initial concern and prompted City's claim that they are valid against employees.

124 "The substance of the pleading will control over the strict form of the pleading." Jones v. Oklahoma Merit Protection Comm'n, 1993 OK CIV APP 96, ¶ 9, 860 P.2d 804, 806 (holding that plaintiffs failure to specifically identify the administrative rule he was challenging did not render district court's ruling on his appeal before the Oklahoma Merit Protection Commission overly broad, where plaintiff's statement was sufficient to put the parties on notice of his challenge to the rule). "[A] short and plain statement of the claim showing that the pleader is entitled to relief" is all the law requires. 12 O.S.2001 $ 2008(A)(1). Lodge 127s narrative basis for its charge was sufficient to put City on notice that Lodge 127s complaint encompassed the re-execution of the Contracts by bargaining unit members. City's argument that PERB exceeded its authority by addressing that issue is therefore misplaced.

125 City's remaining two allegations that PERB exceeded its authority also fail. Given our holding today that substantial evidence exists to support PERB's findings that City violated the FPAA, we find without merit City's contention that PERB exceeded its authority in issuing a cease-and-desist order in the absence of evidence that the City violated the FPAA. City's speculation that the cease-and-desist order is overly broad in that it could be read to prohibit City from entering into any individual contracts, is likewise misplaced. PERB's order is not advisory, but resolves the particular issues before it, namely, the legality of City entering into and threatening to enforce individual fitness Contracts with bargaining unit members without conducting good-faith bargaining over same. -

26 For these reasons, we AFFIRM.

HANSEN and JONES, JJ., concur.

      . Although City listed as an additional issue on appeal in its Petition in Error the district court's alleged failure to employ the correct standard of review, it failed to brief this point in its submissions to this Court. We thus deem the issue waived. Okla. Sup.Ct. R. 1.11(k).

      . In addition to these points of error, which it addressed before the district court below, City also raised a new argument for the first time on appeal, namely, that due to Lodge 127's silence on the subject during FY 2000-2001 CBA negotiations, Lodge 127 is now equitably estopped from complaining about the fitness Contracts. Given that City failed to present this issue either to PERB or the district court, it is not properly before us and we will not consider its merits. Okla. Sup.Ct. R. 1.26(a), (b).

      . In interpreting the FPAA, it is appropriate for us to consider federal labor law decisions involving parallel federal statutes such as the National Labor Relations Act. Stone v. Johnson, 1984 OK 76, ¶ 14, 690 P.2d 459, 462.


author: CAROL M. HANSEN, Judge.

text:
    2003 OK CIV APP 43
    In the matter of M.J.J., J.P.L., and J.P.G., alleged deprived children, Marie E. Geiss, Respondent/Appellant, v. STATE of Oklahoma, Petitioner/Appellee.
    No. 97,758.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    April 4, 2003.

      Eric R. Jones, Ardmore, OK, for Respondent/Appellant. |
    Mitchell D. Sperry, District Attorney, Ard-more, OK, for Petitioner/Appellee.
   Opinion by

CAROL M. HANSEN, Judge.

11 Appellant, Mary E. Geiss (Mother) seeks review of the trial court's order terminating her parental rights as to the minor children, M.J.J., J.P.L., and J.P.G. It is undisputed that the children are members of the Chickasaw Tribe and that this action is subject to the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901 et seq., as amended, and the Oklahoma Indian Child Welfare Act, 10 0.98.2001 §§ 40 et seq. The purpose of the Oklahoma Act is clarification of state policies and procedures regarding implementation by the state of the ICWA. 10 0.98.2001 § 40.1.

T2 Mother stipulated to the allegations supporting Appellee State's Petitions to have the children adjudicated as deprived. After the children were adjudicated deprived, the trial court established a treatment plan proposed to correct the conditions which led to the adjudication. In December 2001, some ten months after the initial disposition order setting the standards of conduct in the treatment plan, State moved to terminate Mother's parental rights to the three named children. Mother waived her right to a jury trial. The trial court ordered termination and Mother appeals from that order.

T3 In her first proposition, Mother contends the trial court erred by failing to comply with that portion of the ICWA, specifically 25 U.S.C. § 1912(F), as amended, which provides:

No termination of parental rights may be ordered ... in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

T 4 Mother argues the trial court's order is fatally defective because the court "makes no reference to the Statute, and more importantly does not state that its determination was made upon a showing of proof beyond a reasonable doubt as specifically required by the Statute." The argument here is thus one of failure to comply with a purported requirement to express a finding in the order, and not failure of evidence to support the trial court's determination. We find this argument has no merit.

15 While § 1912(f) clearly establishes the trial court standard of proof for termination of parental rights under the ICWA, there is no duty thereunder for the court to express in its order that it has complied with that standard. The cases cited by Mother do not impose that requirement and we have not been made aware of any legal authority which does. The trial court's order sets forth, inter alia, the following findings:

1. There has been compliance with the Indian Child Welfare Act.
2. Continued custody of the children by the parents is likely to result in serious emotional harm to the children.

T6 The order reflects the trial court did expressly set out the ICWA as the legal basis for its determination, and, in statutory language from § 1912(F), articulated the conclusion of law mandated by that section. Mother's argument is very similar to that made to the Georgia Court of Appeals in In the Interest of A.L.L., 211 Ga.App. 767, 440 S.E.2d 517 (1994). The contention there was that the trial court had erred by not stating the "clear and convincing" standard in its order.

T7 The ALL. Court found no reversible error, holding "[the standard of clear and convincing evidence bound the trial court, even though those words are not stated in the order", and noted, "[tlhe trial judge is presumed to know the law.. and presumed to faithfully and lawfully (perform) the duties devolving upon by the law." (Citations omitted). We find the Court's reasoning in ALL. persuasive. The trial court here expressed its compliance with the ICWA and stated the requisite finding in the statutory language of § 1912(Ff). 'We will presume the trial court was aware of the standard of proof mandated by § 1912(F) and complied with that standard.

18 As we understand it, Mother's next contention is that State failed to establish, through an "Indian expert witness", that the continued custody of the children by Mother would be likely to result in serious emotional damage to the children. There is, however, no absolute requirement that the "qualified expert witnesses" necessary for a finding under § 1912(f) be an "Indian expert witness". In the Matter of N.L., 1988 OK 39, 754 P.2d 863.

T9 In N.L., the Oklahoma Supreme Court held, pertaining to expert witnesses under § 1912(F), "[slpecial knowledge of Indian life is not necessary where a professional person has substantial education and experience and testifies on matters not implicating cultural bias." The Court further held that social workers may qualify as expert witnesses under § 1912(f) if they possess "expertise beyond the normal social worker qualifications."

110 In the matter before us, State presented the testimony of Sherrie West (West), a social worker for the Chickasaw Nation child welfare department. West testified she was a member of the Chickasaw Nation and was familiar with the culture of that tribe. She further testified the allegations supporting termination-emotional abuse and use of marijuana and other drugs-were not consistent with the culture of the tribe. West did not testify regarding the effect of continued custody of the children by Mother.

{11 The substance of West's testimony was that cultural bias was not implicated here. In Matter of N.L., the Oklahoma Supreme Court cited and quoted from State ex rel. Juvenile Department v. Tucker, 76 Or.App. 673, 710 P.2d 793 (1985). In Tucker, the Oregon Court of Appeals noted the issue was whether continued custody of the child by the mother would result in serious emotional harm because of the mother's mental illness. Under the circumstances there, the Court found termination had nothing to do with the mother's fitness to care for the child according to the cultural dictates of her tribe. Similarly, here there is no evidence that Mother's deficiencies were in any way associated with the cultural dictates of her tribe. In fact, the evidence is that there is no such association.

112 In the absence of implication of cultural bias, the expert witness may be a social worker who possesses expertise be-youd the normal social worker qualifications. State presented such a witness, Angela Armstrong (Armstrong), a Department of Human Services (DHS) employee who was the treatment/permanency social worker assigned to help Mother complete the treatment plan. She had been with DHS for four years, and previously had been a counselor for a "therapeutic foster care agency" with training and experience in counseling children with special behavioral problems.

¶13 Armstrong testified in detail concerning her efforts to assist Mother with her treatment plan and the condition of the children when removed from Mother's custody and improvements of the children in foster care. Armstrong concluded the children would be "at risk of harm if they were placed in the custody of" Mother. Armstrong possessed expertise beyond that of the normal social worker, that is, counseling children with behavioral problems. Because cultural bias is not implicated in this case, Armstrong is qualified to testify as an expert witness under § 1912(f). Matter of N.L., 754 P.2d at 868.

T14 Armstrong testified J.P.L., who was two years old at the time, had severe behavioral and emotional problems when he was removed from the home. M.J.J., who was nine years old, had to be placed in special education classes. ' J.P.G. was born after his siblings had been adjudicated deprived and was adjudicated deprived as a new-born. Mother admitted smoking marijuana while pregnant with J.P.G. M.J.J. and J.P.L. experienced improvement after being removed and when Mother was denied visitation with J.P.L. because his counselor thought the visits would be detrimental. Armstrong testified J.P.L. was still in treatment at the time of trial, that his "behaviors are slowly decreasing" and that his treatment had been a "long, slow road."

1 15 Armstrong testified the children needed a stable, structured environment and that J.P.L. needed a lot of nurturing and guidance. She stated she did not believe Mother could provide such an environment. She said M.J.J. had disclosed physical abuse by her step-father, John Patrick Lee (Lee), and that M.J.J. was afraid of him. M.J.J. chose not to have visitation with Mother, partly because she felt Mother had abandoned her for Lee.

116 Armstrong further testified Mother had not exhibited the ability to protect the children. She had "on numerous occasions" discussed with Mother "what Mr. Lee's done to the children". Mother admitted knowledge of physical abuse, but continued to stay with Lee. Mother did attend counseling regularly for several months, but never satisfactorily completed a course of counseling. On cross-examination, Armstrong testified that when she discussed appropriate housing with Mother, Mother said she did not want to leave Lee. She had also discussed domestic violence with Mother, but neither Mother nor Lee would participate in counseling.

1 17 Our review of factual issues in parental termination cases, including those coming under the ICWA, is no different than on any appeal from a judgment on a jury verdict, ie. where there is competent evidence reasonably tending to support the trial court's judgment, it will not be disturbed on appeal. In re M.D.R., 2002 OK CIV APP 75, 50 P.3d 1160. Legal errors are reviewed de novo. We find no errors of law. There is competent evidence of record to support, beyond a reasonable doubt, the trial court's determination to terminate Mother's parental rights.

1 18 AFFIRMED.

JONES, J., and MITCHELL, P.J., concur.

      . The parental rights of John Patrick Lee (Lee) to J.P.L and J.P.G. were also terminated in the same order, but he did not appeal and is not a party here.

      . In our review, the findings of a trial court sitting without a jury in a case of legal cognizance are to be given the same weight which would be given the verdict of a well-instructed jury. Sides v. John Cordes, Inc., 1999 OK 36, 981 P.2d 301.


text:
    2003 OK CIV APP 44
    Bart ROSEN, Plaintiff/Appellant, v. WHITE SWAN, INC., William E. Davis & Sons, Inc., and Paul Kerrick, Defendants/Appellees.
    No. 98,645.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    April 15, 2003.

      Steve Langer, Law Offices of Joe Farnan, Purcell, OK, for Appellant.
    R. Stephen Haynes, Haynes & Montgomery, Oklahoma City, OK, for Appellees.
   Opinion by

JOHN F. REIF, Judge.

T1 Plaintiff Bart Rosen appeals the dismissal of the suit he refiled pursuant to 12 0.9.2001 § 100, after the dismissal of his original suit without prejudice. Plaintiff Ro-sen contends the trial court erred in ruling that he did not timely refile the suit within one year of the dismissal of the original suit, as required by § 100. In particular, plaintiff Rosen argues that the trial court erred in computing the time for refiling by using the date of the court minute reflecting the dismissal, rather than the date of the journal entry of judgment reflecting the dismissal. Plaintiff Rosen propounds that the time for refiling under $ 100 did not commence until the dismissal of the original suit was memorialized as a judgment, and that the court minute was not a judgment. The trial court considered this argument and rejected it, stating that the court minute "substantially complies" with the statutory requirements for a judgment. Although agreeing with the trial court's common sense interpretation, we are constrained to hold that the court minute dismissing the original suit was not an effective judgment, and the time to refile did not commence until the journal entry of judgment was filed.

T2 The trial court's ruling is a succinet statement of the dissenting view expressed by Justice Opala in Corbit v. Williams, 1995 OK 53, 897 P.2d 1129. The majority opinion in Corbit, ¶ 8, 897 P.2d at 1131, however, declined to employ "substantial compliance" to determine the effectiveness of a court minute as a judgment. The majority observed that the legislature had expressly provided that "certain types of instruments are deemed to not be a "judgment, decree or appealable order' [and] a minute entry, even though .it might meet the other [statutory] requirements ... is not an appealable order or judgment."

T3 The majority opinion in Corbit found that the legislature had expressed a clear intent to have a "brighter line" than substantial compliance for determining when a trial court has entered a judgment to trigger the exercise of time-based rights, such as the filing of an appeal or the refilling of a suit. Id. at ¶ 9, 897 P.2d at 1131. The majority also found the legislation to be "a useful reform, with one of its aims to reduce the amount of judicial energy expended on determining when time ... starts to run [to exercise time-based rights]." The majority concluded that "an order of the District Court titled 'Court Minute' is not a judgment, decree or appealable order for the purpose of commencing the time to appeal." Id. (citations omitted). Such a minute would likewise not be a judgment for the purpose of commencing the time for refiling a suit under § 100.

14 We note that Corbit interpreted the statutory provisions governing judgments, decrees and appealable orders set forth in 12 O.S. Supp.1993 §§ 696.2 and 696.3. Subsequent to the decision in Corbit, the legislature amended § 696.2 by Laws 1997, c. 102, § 2, effective May 1, 1997, and Laws 1997, c. 239, § 4, effective May 28, 1997. The legislature also amended § 696.8 by Laws 1997, c. 102, § 3, effective May 1, 1997. We find nothing in these amendments to indicate the legislature intended to change the effect of these statutes as interpreted by the majority in Corbit. To the contrary, we note that both the pre- and post-amendment versions of § 696.2 identically provide that a "minute entry" shall not constitute a judgment. It is well settled that:

Legislative familiarity with extant judicial construction of statutes in the process of being amended is presumed [and] the terms of amendatory acts which retain the same, or not substantially dissimilar, portions of provisions formerly in force will be accorded the construction identical to that placed upon them by preexisting case law [in the absence of a clear, plainly expressed, contrary intent].

Fenwick v. Oklahoma State Penitentiary, 1990 OK 47, ¶ 15, 792 P.2d 60, 63 (citing Lekan v. P & L Fire Protection Co., 1980 OK 56, ¶ 5, 609 P.2d 1289, 1292).

15 We hold that the trial court erred in dismissing plaintiff Rosen's refiled suit as untimely by computing the time to refile from the date of the court minute. The time to refile should have been computed from the filing of the journal entry of judgment, and when the time to refile is computed in this manner, plaintiff Rosen did timely refile his suit. Accordingly, the dismissal of plaintiff Rosen's refiled suit is reversed.

16 REVERSED.

GOODMAN, P.J., and RAPP, J., concur.

      . Plaintiff Rosen refiled the suit on December 11, 2001. This refiling occurred almost three and one-half years after the trial court filed its "court minute" dismissing the original suit without pref-udice. However, this refiling occurred well within a year of the journal entry of dismissal filed May 31, 2001.