author: WATT, V.C.J.:

text:
    2002 OK 54
    STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Stephen Paul GLOVER, Respondent.
    No. 4703.
    Supreme Court of Oklahoma.
    June 18, 2002.
    Allen J. Welch, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant.
    John W. Coyle, III, Oklahoma City, Oklahoma, for Respondent.
   ORDER

WATT, V.C.J.:

4 1 Upon the filing of a complaint with the Oklahoma Supreme Court, Respondent, Stephen Paul Hover, has tendered his resignation from membership in the Oklahoma Bar Association pending disciplinary proceedings. The Bar has filed an application for approval of Respondent's resignation. Upon consideration of this matter, we find:

1) Respondent executed his resignation on April 23, 2002.
2) Respondent's resignation was freely and voluntarily tendered; he was not subject to coercion or duress; he was fully aware of the consequences of submitting his resignation. Rule 8.1, Rules Governing Disciplinary Proceedings, 5 0.8. Supp.1997, ch. 1, app. 1-A.
3) Respondent was aware of a complaint filed with the Office of Chief Justice by the Office of the General Counsel on February 25, 2002, which involved three counts of professional misconduct, and which originated from a grievance received from an attorney involved in Michael J. O'Donnell, et al. v. Forest Oil Corporation, CJ-98-57, in the District Court of Washita County, Oklahoma, the class action lawsuit in which Respondent served as lead attorney. Respondent was aware that the complaint contained allegations of misappropriation of settlement funds for personal use, misrepresentation to obtain funds to replace the settlement funds, and the failure to respond to communications from the Office of General Counsel, which, if proven, the alleged conduct would constitute violations of Rules 1.15(b), 4.1, 84(b) and 84(c), of the Oklahoma Rules of Professional Conduct (ORPC), 5 0.8. Supp.1997, ch. 1, app. 3-A; and Rules 1.4(b), 5.2, of the Rules Governing Disciplinary Proceedings (RGDP), 5 O.S. Supp.1997, ch. 1, app. 1-A.
4) Respondent was aware that, pursuant to Rule 8.2, RGDP, either the approval ' or disapproval of this resignation is within the discretion of the Oklahoma Supreme Court.
5) Respondent has familiarized himself with the provisions of Rule 9.1, RGDP, and agrees to comply with all provisions of Rule 9.1 within twenty (20) days following the date of his resignation.
6) Respondent acknowledges and agrees that in order to be reinstated to the practice of law, he may do so only upon full compliance with the conditions and procedures prescribed by Rule 11, RGDP, and may make no application for reinstatement prior to the expiration of five (5) years from the effective date of the Order approving this Resignation Pending Disciplinary Proceedings.
T \ Respondent agrees to reimburse the Bar Association should the Bar pay out any funds to his former clients through the Client Security Fund. Should any funds be paid through the Client Seeu-rity Fund, respondent agrees to reimburse the fund the principal amounts and the applicable statutory interest prior to the filing of any application for reinstatement.
8) Respondent's name and address as shown by the records maintained by the Oklahoma Bar Association is: Stephen Paul Glover, OBA #18867, 14550 Tor-rey Chase, Suite 650, Houston, Texas 77014. He was admitted to practice law on September 19, 1990.
9) Costs incurred in the ihvestigation of the above-stated matter have been waived by the Oklahoma Bar Association.

{2 IT IS THEREFORE ORDERED that Complainant's application and Respondent's resignation be approved.

13 IT IS FURTHER ORDERED that Respondent's name be stricken from the Roll of Attorneys and that he make no application for reinstatement to membership in the Oklahoma Bar Association prior to five years from the effective date of this order.

T4 IT IS FURTHER ORDERED that Respondent reimburse the Client Security Fund of the Oklahoma Bar Association, including interest at the statutory rate, should it pay any funds to his former clients for claims made due to his alleged misconduct.

ALL JUSTICES CONCUR.


source: Caselaw Access Project

author: BOUDREAU, Justice. OPALA, J.,

license: Public Domain

text:
    2002 OK 53
    Eric W. HATHAWAY, Appellant, v. The STATE of Oklahoma, ex rel. MEDICAL RESEARCH & TECHNICAL AUTHORITY, Appellee, and HCA Health Services of Oklahoma, Inc., an Oklahoma corporation, d/b/a Presbyterian Hospital, and John Does Nos. 1 & 2, Defendants.
    No. 96,272.
    Supreme Court of Oklahoma.
    June 18, 2002.

      Brian M. Dell, Oklahoma City, OK, for appellant.
    Drew Edmondson, Attorney General of the State of Oklahoma, E. Clyde Kirk, Assistant Attorney General, Oklahoma City, OK, for appellee.
   BOUDREAU, Justice.

¶ 1 This is an appeal from an order granting summary judgment in favor of the State in a governmental tort claims action. The issue presented is whether the trial court correctly granted summary judgment because Eric W. Hathaway, appellant, after filing his governmental tort claims action prematurely, failed to refile his petition within 180 days after his claim was denied. For the reason set out below, we reverse the trial court’s summary judgment.

I. Background

¶ 2 On February 13, 1999, Presbyterian Hospital in Oklahoma City, Oklahoma, discharged Hathaway from an in-patient stay. When he left the hospital, Hathaway took the Gideon Bible from his hospital room. Two security guards employed by Medical Research and Technology Authority, a state authority (State), detained Hathaway outside of the hospital and caused him to be arrested and taken to jail and also caused petty larceny charges to be filed against him. Hathaway remained in the Oklahoma County jail for about a month until the petty larceny charge was dismissed because Presbyterian Hospital did not own the Gideon Bible.

13 On January 11, 2000, Hathaway gave timely notice to the State of a tort claim stemming from the occurrence outside the hospital. On February 11, 2000, Hathaway filed an action against the State, the security guards and Presbyterian Hospital seeking damages for false arrest and imprisonment, malicious prosecution and intentional infliction of emotional distress. The State answered, responding affirmatively that: 1) the State was not negligent and therefore not liable; 2) the claim is barred or reduced by the Governmental Tort Claims Act; and, 3) the State is immune from lability under the Governmental Tort Claims Act.

€ 4 On February 21, 2001, the State moved for summary judgment asserting that Hathaway failed to comply with the Governmental Tort Claims Act. The State argued that it was entitled to judgment because Hathaway, after filing his action prematurely, failed to file a petition or amended petition within 180 days after his claim was denied. The trial court entered a summary judgment finding that Hathaway failed to file a petition or amended petition within the 180-day limitation period.

15 Hathaway appealed, asserting that his premature action ripened into a timely action after the denial of the claim because the State had been served with summons and filed an answer. The Court of Civil Appeals affirmed the summary judgment finding that 51 0.8.8upp.2000, § 157 clearly expresses an intent that an action may not be initiated against a governmental entity unless notice of the claim has been timely presented and the claim has been denied. It concluded that Hathaway's action was a nullity and accordingly did not ripen into a timely action. We previously granted certiorari.

II. Standard of Review

16 A summary judgment disposes solely of issues of law and therefore, it is reviewable by a de movo standard. In a de movo review, we have plenary, independent and non-deferential authority to determine whether the trial court erred in its application of the law and whether there is any genuine issue of material fact.

IH. A governmental tort claims action initiated after timely notice of the claim but before the claim has been denied is premature.

T7 In enacting The Governmental Tort Claims Act (GTCA), 51 0.8.2001, §§ 151, et seq., the Oklahoma Legislature extended "governmental accountability to all torts for which a private person or entity would be liable subject only to the act's specific 'limitations and exceptions. In waiving sovereign immunity, the Legislature restricted the waiver "only to the extent and in the manner prescribed in the act". The GTCA prescribes the manner in which any person asserting a claim against the state or a political subdivision must proceed.

18 The GTCA requires a claimant to present written notice of a claim within one year from the date the loss occurs or the claim is forever barred. Onee notice of the claim is timely presented, the GTCA provides the governmental entity with a 90-day period to consider the claim and either approve or deny it. The governmental entity may deny the claim by properly disallowing it or by failing to approve it in its entirety within the 90-day periods. The 90-day provision is clearly designed to require the governmental entity to act with reasonable dispatch on the claim thus preventing it from needlessly delaying the filing of an action by a claimant in the district court.

19 However, the GTCA prohibits a claimant from initiating a tort action until the 90-day period expires unless the governmental entity acts upon the claim in a manner that denies the claim before the 90-day period expires. The first sentence in 51 O.S8. 2001, § 157(A) reads: "A person may not initiate suit against the state or a political subdivision unless the claim has been denied in whole or in part." This prohibition serves the interest of the governmental entity by allowing it a specific period to consider and act upon the claim before the expense of a suit is imposed upon it. If a claimant presents a timely claim but commences an action before the 90 day period for determining the claim has expired, the action is premature.

IV. A premature governmental tort claims action is subject to dismissal.

110 A governmental entity may, by motion to dismiss, raise the issue of a premature filing as a plea in abatement. However, because a plea in abatement does not affect the merits of the action, dismissal is ordinarily without prejudice. After dismissal, the claimant may refile the action after the 90-day period expires and before the 180-day limitation expires.

{11 Hathaway argues his premature action ripened into a timely action when the 90-day period for determining the claim expired. In essence, he contends that after the 90-day period, his action was no longer subject to abatement by dismissal motion. We reject this contention. Like other statutes, the provision allowing a governmental entity a 90-day period to consider and act upon a claim should be applied to give effect to the legislative intent. The Legislature clearly intended that a governmental entity should have ninety days to consider a claim before the expense of an action is imposed upon it. If we accepted Hathaway's argument that premature actions should ripen into timely actions, we would, in effect, encourage premature governmental tort claims actions and completely frustrate the intent of the 90-day waiting period. Accordingly, a governmental tort claims action filed within the 90-day . period provided in 51 0.S8.2001, § 157(A) is subject to dismissal both before and after the 90-day period expires.

V. This opinion settles a novel point of procedure and should be given prospective effect.

112 Although the result reached by the trial court, and affirmed by the Court of Civil Appeals, is consistent with the legislative intent of § 157(A), we decline to affirm the summary judgment. The terse language in the first sentence of § 157(A) does not adequately inform the practitioner who prematurely files a governmental tort claims action that the action is subject to dismissal even after the 90-day waiting period has expired. This novel point of procedure was not previously an established legal principle nor is there extant case law from which the legal principle could have been divined.

T13 Because we pronounce a point of procedural law that stood unresolved at the filing of this governmental tort claims action, this opinion should be given prospective ef-feet. Accordingly, this opinion shall operate prospectively and apply only to those governmental tort claims actions filed after the date of the mandate in this case.

VI. Conclusion

114 A governmental tort claims action may not be initiated against a governmental entity unless a notice of claim has been timely presented and the claim has been denied. When a claimant initiates a governmental tort claims action before the claim has been denied, the action is premature and it is subject to dismissal both before and after the 90-day waiting period in § 157(A) has expired. After dismissal, the claimant may refile the action after the 90-day period expires and before the 180-day limitation in § 157(B) expires.

1 15 When as here, the dispositive rule of law on the point in controversy was far from settled, fundamental fairness requires that today's pronouncement be accorded purely prospective effect. It will apply only to those governmental tort claims actions filed after the date of the mandate in this case.

1 16 On certiorari granted upon appellant's petition, the Court of Civil Appeals' opinion is vacated, the trial court's judgment is reversed, and the cause is remanded to the trial court for further proceedings consistent with today's pronouncement.

WATT, V.C.J., and HODGES, LAVENDER, SUMMERS, and WINCHESTER, JJ., concur.

KAUGER, J., (by separate writing and joining OPALA, J.) concurs in part and dissents in part.

HARGRAVE, C.J. and OPALA, J. (by separate writing) dissent.

OPALA, J.,

with whom KAUGER, J., joins, concurring in allowing the prematurely-filed claim to survive and dissenting from today's holding that breach of the no-suit time bar may be fatal to a claim.

1 1 The issue presented today is whether a prematurely-filed governmental tort action may ripen into a timely claim upon the expiration of the no-suit time bar. I coneur in the result (that allows the claim's survival by giving prospective effect to the court's opinion), but dissent from the rationale that underlies today's pronouncement. The court correctly holds that this appellant's claim should go forward, but ignores the purpose and intent of the terms of 51 0.8.2001 § 157. Because I would hold that the no-suit time bar's violation by plaintiff's premature filing is never a legally tenable ground for an action's termination (by dismissal or summary disposition), I dissent from today's opinion.

I

THE LEGISLATIVE INTENT OF § 157 MILITATES AGAINST DISMISSAL OF A CLAIM FOR VIOLATION OF THE NO-SUIT TIME BAR.

[2 By the provisions of the Governmental Tort Claims Act (GTCA), unless written notice of a claim is presented within one year from the date of loss the claim is forever barred. "A person may not initiate a suit against the state or a political subdivision unless the claim has been denied in whole or in part. The quoted provisions of § 157(A) may be called a "negative statute of limitations"-a span during which no suit may be brought against a governmental entity. As the court correctly notes, the legislative intent of § 157 is to afford the affected governmental entity an opportunity to investigate and review the claim to determine whether settlement or litigation is the better choice. The court overlooks this legislative purpose when it concludes that noncompliance with § 157s no-suit time bar is to be regarded as fatal to a claim.

T8 Appellant conformed to the provisions of 51 00.98.2001 § 156 by giving the defendants notice. He then filed his claim before the ninety-day no-suit time bar ended. The state did not deny the noticed claim before the expiration of the statutory period. At this point, the law clearly allowed appellant 180 days to bring suit. According to appellant, his premature filing ripened into a timely action the moment the 90-day no-suit time bar came to an end, and nothing else was required.

T4 The legislative intent of § 157 plainly supports appellant's position. As a "negative statute of limitations" the provision creates no more than a time period for the affected governmental entity to investigate a claim. The section is intended solely to delay the filing. The plaintiff's right to press the demand remains intact. Two conceptually dis-tinet time bars are to be distinguished in this context: (1) an "ordinary" or "true" statute of limitations that regulates the time to bring an action and (2) a § 157 negative bar by which the state is afforded a temporary shield from litigation's commencement. Because the latter time bar does not inject a substantive element into the claim, its breach will not warrant the claim's judicial termination. The only consequence of the plaintiff's premature filing is that the state may invoke an ex lege stay and stop all proceedings during the unexpired term of the time bar.

II

APPELLANTS PREMATURE COMMENCEMENT, WHICH DID NOT FRUSTRATE THE PURPOSE OF § 157, RIPENED INTO A TIMELY FILING UPON THE EXPIRATION OF THE NO-SUIT TIME BAR

115 I counsel the court (a) that § 157 may not fatally affect the appellant's substantive right to prosecute the action and urge it (b) to hold that appellant's premature filing should be held to have ripened-by operation of law-into a timely commencement of an action upon the expiration of the no-suit time bar. Although the actual filing was untimely, no proceedings took place during the unexpired period whose conduct might have harmed the affected governmental entity. The latter had ample opportunity and freedom to deny or settle the claim within the time allowed by law. In short, there is here no legal ground for using the provisions of § 157 as a mechanism for inflicting upon the appellant legal disability to pursue the litigation. The suit's prematurity does not carry collateral consequences. The negative statute the plaintiff breached is flexible. Its time bar "may be extended by tolling, waiver or estoppel."

T 6 Public policy and evenhanded fairness dictate that in the present case the claim should have been considered as having ripened into a timely commencement upon the expiration of the no-suit time bar. Ever since the collapse of the common law's writ regime, the Anglo-American legal system has stood committed to ridding itself of yest-eryears's incrustation with an excessive dose of ritualistic formalism. Today's holding is imprisoned in the adjective law's now-obsolete one-strike-and-you-are-out rigidity of the middle ages.

IH

SUMMARY

T7 The provisions of 51 0.8.2001 § 157 erect a 90-day no-suit time bar which affords the affected governmental entity a temporary shield from litigation. Although the court recognizes the correct legislative intent of § 157, it does not analyze the issue before it in that light. I concur in the disposition, but dissent from the court's opinion. The plaintiff's breach of the no-suit time bar by premature filing may not fatally affect his right to press the suit. Its only adverse consequence is an ex lege stay that will stop trial court proceedings during the unexpired span of the no-suit time bar.

Appellant filed his claim before the expiration of the no-suit time bar. His filing neither impaired nor impeded the government's ability to evaluate the tort claim and no interim nisi prius proceedings (with adverse consequences) came to be set in motion. The premature claim ripened into a timely filing upon the expiration of the 90-day no-suit time bar.

KAUGER, J.,

concurring in part and dissenting in part:

¶ 1 I agree with the majority that the appellant’s, Eric W. Hathaway (Hathaway/individual), suit should be allowed to proceed against the appellee, State of Oklahoma ex rel. Oklahoma Medical Research & Technical Authority (Authority/governmental entity). Under the facts presented—where the Authority was given timely notice of the damages claim, failed to file either a motion to arrest or to dismiss the district court action, did not raise its affirmative defense in its untimely filed answer and only sought summary judgment outside the time limits when Hathaway could have cured his premature filing—, I dissent from the determination that the Legislature, which has specifically provided the procedural guidelines under which parties are to proceed in a governmental tort action, intended a premature filing under 51 O.S. Supp.1995 § 157(A) to bar an individual’s suit when the governmental entity does not play by the specified rules.

¶2 Such a result is unsupported by: the mandatory language of 51 O.S.1991 § 164 making the procedural rules applicable to governmental tort claims; the requirement of 12 O.S.1991 § 2012(B) providing that every defense must be asserted in the responsive pleading; the mandate of 12 O.S.1991 § 2008 to state any defense to a claim asserted and specifically listing the statute of limitations as an item which must be pled as an affirmative defense; our jurisprudence holding that the failure to plead the statute of limitations as an affirmative defense results in waiver of the issue; and cases in which we have required that the claimant and the governmental entity alike comport with the law and procedure made applicable through 51 O.S.1991 § 164. Further, the reasoning of the majority ignores one of the underlying purposes of the 90-day bar-of-suit provision of 51. O.S.1995 § 157—to prevent the governmental entity from delaying action to the detriment of the claimant. Here, it is apparent that the Authority engineered its answer and its motion for summary judgment in a manner not just to delay the action but to avoid all liability based on a technicality. Our jurisprudence provides that the notice requirements of § 157 should be kept in mind and a construction prevented which defeats the ends of justice. The majority opinion falls fall short of this standard.

¶ 3 The majority takes the position that the only issue presented to the trial court or to this Court on certiorari is that of whether the premature petition “ripened” once the claim was deemed denied by the Authority. The assertion is unconvincing. The record on accelerated appeal contains the Authority's motion for summary judgment and brief. Proposition one of the Authority's brief reads:

"THE PLAINTIFF IS TIME BARRED FROM BRINGING THIS ACTION AGAINST THE STATE OF OKLAHOMA, EX REL. MEDICAL RESEARCH & TECHNICAL AUTHORLTY?!

Further, the Authority relies upon the 180-day time limitation contained in 51 O.S. Supp.1997 § 157 in support of the proposition. Finally, the majority avoids the hard question of the State's role in the dismissal of this cause based on a narrow view of this Court's duty in deciding cases. This position ignores the fact that we are required under 12 0.8.2001 § 2201(A) to take judicial notice of statutory law.

1.

{4 THE AUTHORITY'S FAILURE To CONFORM TO THE MANDATORY PROCEDURAL RULES MADE APPLICABLE BY THE LEGISLATURE PURSUANT TO 51 0.9$.1991 § 164 RESULTED IN A WAIVER OF THE STATUTE OF LIMITATIONS DEFENSE.

15 The Oklahoma Legislature codified the sovereign immunity policies and defined their parameters when it enacted the Governmental Tort Claims Act [Tort Claims Act], 51 0.8. Supp.1991 § 151, et seq. Governmental entities are liable pursuant to the Tort Claims Act for torts to the same extent as a private entity or individual. Only where the Tort Claims Act provides specific limitations and exemptions are governmental entities excused from liability. Extending immunity in a situation not specifically enumerated nullifies the intent and purpose of the Tort Claims Act.

16 Title 51 O.S. Supp.1995 § 157 provides a claim is deemed denied if it is not approved by the political subdivision in its entirety within 90 days after the claim is submitted. Onee a valid notice of claim has been presented and the claim has been denied, a claimant has 180 days to commence a lawsuit. Under the statute, if a claim is neither denied, approved nor settled prior to the 90 days after notice is filed, the claim is deemed denied by operation of law unless the date of denial is extended by written agreement.

T7 The Legislature has specifically pre-seribed the rules of engagement for litigants asserting and defending a governmental tort claim. Except to the extent that the laws, statutes and procedural rules may conflict with a specific provision of the Tort Claims Act, the Oklahoma law and the general rules of civil procedure apply. Section 164 of title 51 provides:

"The laws and statutes of the State of Oklahoma and the Rules of Civil Procedure, as promulgated and adopted by the Supreme Court of Oklahoma insofar as applicable and to the extent that such rules are not inconsistent with the provisions of this act, shall apply to and govern all actions brought under the provisions of this act." [Emphasis supplied.]

18 Title 12 0.8.1991 § 2012(B) states that every defense to a claim for relief in any pleading shall be asserted in the responsive pleading thereto if required. Subsection A of the statute requires a defendant to serve an answer within 20 days of service. Although § 2012 lists a number of defenses which may be made by motion, the statute of limitations defense does not appear in the list. Further, the statute requires that any of the defenses which may be made by motion shall be made before pleading if a further pleading is permitted.

19 The Authority did not answer within the required 20 day period and, when it did answer-some six months later, it failed to raise the limitations defense. Further, the language of § 2012 does not enumerate the statute of limitations as a defense which may be made by motion. Even if the defense could have been presented by motion, the Authority did not-as the statute plainly requires-present the defense by motion before it filed its answer. Rather, the limitations defense appears for the first time in the Authority's motion for summary judgment filed over a year after Hathaway's petition and well outside the 180 day time frame of 51 0.8. Supp.1995 § 157 within which the claimant could have cured any perceived defect by amending the petition.

{10 Title 12 § 2008 provides that a party shall state in short and plain terms any defense to a claim asserted. Further, the statute enumerates a number of defenses which the party shall set forth affirmatively. The statute of limitations is among those items specifically listed in the statute as an affirmative defense which must be set forth in a responsive pleading. Although it was certainly aware that Hathaway's suit was premature-having been filed within 80 days of when it received notice of Hathaway's claim, the Authority did not assert the limitations defense in its answer. Our case law makes it clear that its failure to do so operates as a waiver.

1 11 Absent authority to do so, governmental entities normally may not waive the statute of limitations as a defense. Generally, a state or governmental entity is not barred by the statute of limitations when it instigates an action. Nevertheless, where it has waived its immunity, the defense is unavailable if the sovereign stands in a defensive position. Further, where the governmental entity places itself in the same position as an individual, the defense is waived. Through the enactment of the Tort Claims Act, the Legislature has made governmental entities liable in tort to the same extent as an individual. The waiver and the clear statement in 51 0.8.1991 § 164 that procedural rules apply to governmental tort claim actions prohibits the Authority from relying on the general rule that governmental entities may not waive a statute of limitations defense presented for the first time in the motion for summary judgment.

112 Title 51 0.8.1991 $ 164 does not state that only claimants are bound by the state's procedural rules, and-until today-this Court has not applied it so. Individuals and governmental entities alike have been required to play by the procedural rules and Oklahoma law made applicable by the Legislature through § 164. In Lucas v. Independent Public School Dist. No. 35, 1988 OK 121 ¶ 7, 674 P.2d 1131, the Court determined that a party injured in a collision with a school bus could not rely on the tolling provision of 12 0.8.1981 § 100 allowing the refiling of an action within one year of a dismissal otherwise than on the merits where the plaintiff did not plead the tolling statute in her petition. In Cortright v. City of Oklahoma City, 1997 OK 158, ¶ 8, 951 P.2d 93, we refused to allow a governmental entity to avoid liability on a limitations argument where it had requested additional information following timely notice. In response to the request, the claimant's attorney set forth his understanding from dealings with the City's attorney/intern that the claim would not be considered rejected as a matter of law, even though the City did not act upon the claim within the statutorily prescribed 90-day time period. The Court determined that § 164 made the general rules relating to contract law applicable to a governmental tort claim. In so doing, we held that an express writing together with the government's implied acceptance of its conditions satisfied the necessity of a written agreement under 51 0.8. Supp.1995 § 157 to extend the statute of limitations during settlement negotiations.

113 Bentley v. Cleveland County Bd. of County Comm'rs, 41 F.8d 600, 604 (10th Cir.1994) is instructive. In Bentley, the County Commissioners contended for the first time in a motion to alter or amend the judgment that an adverse ruling under the Oklahoma Governmental Tort Claims Act must be limited to the Tort Claims Act's $100,000.00 statutory cap. The federal court disagreed. Although the County Commissioners asserted that the limit on immunity constituted a jurisdictional issue which could be raised at any time, the federal court determined that it was not the jurisdictional issue of sovereign immunity at issue but the statutory limit on lability. Moreover, the 10th circuit determined that under Rule 8 of the Federal Rules of Civil Procedure -a rule which is substantially similar to 12 0.8. 1991 § 2008 -failure to plead the affirmative defense constituted a waiver.

114 The Bentley court found support for its holding in the equity of the situation. The opinion provides in pertinent part:

"... Permitting the County to raise this issue at this stage of the proceedings would be extremely unfair to Bentley, who may have been able to prove some exception to the damage cap at trial if he had notice of the defense. Thus, assuming the GTCA applied to this action, counsel for the County waived any limit on its liability afforded by that statute by failing to raise the issue in its answer, the Pre-Trial Order, or at trial...."

115 The majority's determination here that the Authority could manipulate the rules of civil procedure in a manner to avoid liability by failing to raise the limitations defense until well outside the 180 day statutory limit of 51 0.8. Supp.1995 § 157 is likewise unfair. Further, it does not comport with: the mandatory language of 51 00.98.1991 § 164 making the procedural rules applicable to governmental tort claims; the requirement of 12 0.S8.1991 § 2012(B) requiring that every defense must be asserted in the responsive pleading; the mandate of 12 0.8.1991 $ 2008 to state any defense to a claim asserted and specifically listing the statute of limitations as an item which must be pled as an affirmative defense; our jurisprudence holding that the failure to plead the statute of limitations as an affirmative defense results in waiver of the issue; or cases in which we have required that the claimant and the governmental entity alike comport with the law made applicable through 51 0.$.1991 § 164.

IL

116 A DETERMINATION THAT THE . AUTHORITY MAY MANIPULATE PROCEDURE BY RAISING THE LIMITATIONS ISSUE WELL BEYOND THE STATUTORY LIMIT OF 180 DAYS TO AVOID LIABILITY DEFEATS THE PURPOSE OF THE 90-DAY BAR-OF-SUIT INTERVAL AND IGNORES EQUITABLE CONSIDERATIONS.

17 The 90-day period prescribed in § 157 is intended to provide the government with the opportunity for investigation and processing of tort claims undisturbed by forensic combat through litigation. A legitimate state interest is furthered by a thorough pre-suit investigation to protect the public from unwarranted demands and to advance for settlement meritorious claims warranting pre-litigation negotiations. Nevertheless, the notice requirements of the statute should be kept in mind and a construction prevented which defeats the ends of justice. Equitable considerations are applicable in determining the legal effect of the time constraints outlined in 51 0.8. Supp.1995 § 157. Further, the purpose of the 90-day period for a political subdivision to either approve or deny a claim benefits the plaintiff -the guarantee of a date certain for denial prevents the political subdivision from needlessly delaying the filing of suit.

118 In Bivins v. State ex rel. Oklahoma Memorial Hospital, 1996 OK 5, ¶ 13-15, 917 P.2d 456, this Court acknowledged that the legislatively recognized need for a plaintiff's protection in a governmental tort claims action presents a public interest element worthy of judicial protection. Bivins involved the effect that a governmental request for more information might have on the 90-day period for approval or denial of a claim. After having received notice of the claim, the governmental entity in Bivins requested more information. Suit was filed within 180 days of the date the additional information was requested but more than 180 days after the original notice was given. The governmental entity asserted that the limitations period ran from the original date notice was given rather than from the date on which the additional information was supplied. We determined in Bivins that the government could not, after having received timely notice of a claim, cavalierly dismiss the effect the request might have upon the then pending 90-day bar-of-suit interval.

119 In Bivins, the Court refused to allow what the majority does today-the governmental entity to manipulate time limits established by the Tort Claims Act with the intention of barring a claim on a technicality where notice had been timely given. In so doing, we held that the 90-day bar-on-suit provision of 51 0.8. Supp.1995 § 157 began to run from the timely filing of a completed cliim submitted after the governmental agency requests additional information.

CONCLUSION

120 It is undisputed that Hathaway's notice to the Authority was timely. Nevertheless, the governmental entity did not answer the prematurely filed district court action within the statutorily prescribed twenty days. The Authority could have filed a motion to arrest the proceedings, noting the 90 day period for investigation provided by 51 0.8. Supp.1995 § 157, thus preserving its right to proceed unhampered by forensic contest. It did not, nor did it file a motion to dismiss. Rather, its answer was filed some five months later. When it did respond, it did not-as 12 0.8.1991 § 2008 requires-raise the limitations issue as an affirmative defense. An omission which this Court has determined results in a waiver of the defense. Rather, it raised the defense for the first time in its motion for summary judgment filed on July 21, 2001-more than a year after the initial petition and well outside the 180 day time constraint imposed on the claimant for filing a district court action once the claim was deemed denied. Only at this junceture-when it was too late for Hathaway to cure the premature petition by filing a new action or by amending his pleading, did the Authority raise the statute of limitations defense. A maneuver clearly engineered to avoid liability on a technicality.

121 The waiver of sovereign immunity is not a blue sky of limitless Hability. Nevertheless, the Tort Claims Act it is not to be construed as a black hole enveloping the waiver. Litigating a claim under the Tort Claims Act has been previously described as "just a stroll through the briar patch." Most certainly, Peter Rabit is feeling the thorns represented by the majority's willingness to allow the state's manipulation of procedure to avoid Hability.

      . The State did not seek dismissal of the action in its answer filed July 10, 2000.

      . Manley v. Brown, 1999 OK 79, 989 P.2d 448, 455; Neil Acquisition, LLC v. Wingrod Investment Corp., 1996 OK 125, ¶ 5, 932 P.2d 1100.

      . Kluver v. Weatherford Hospital Authority, 1993 OK 85, 859 P.2d 1081, 1084. |

      . This opinion references the most recent version of The Governmental Tort Claims Act unless an earlier version is applicable.

      . Anderson v. Eichner, 1994 OK 136, ¶ 9, 890 P.2d 1329, 1336; and 51 O.S.1991, § 153(A).

      . 51 0.$.2001,§ 152.1(B).

      . 51 0.$.2001, § 156(B) reads:
      B. Claims against the state or a political subdivision are to be presented within one (1) year of the date the loss occurs. A claim against the state or a political subdivision shall be forever barred unless notice thereof is presented within one (1) year after the loss occurs.

      . 51 O.S.2001, § 157(A) reads, in part:
      ... A claim is deemed denied if the state or political subdivision fails to approve the claim in its entirety within ninety (90) days, unless the state or political subdivision has denied the claim or reached a settlement with the claimant before the expiration of that period.

      . Trent v. Board of County Commissioners of Johnston County, 1988 OK 15, 755 P.2d 615, 619. Even though the 90-day period inures to the benefit of the claimant, it has been characterized as a negative statute of limitation that affects the claimant's statutory remedy but not the substantive right to recover. Id. at 620, dissenting opinion by Opala, J. According to the plain terms of 51 0.$.2001, § 157, the 90-day period may be extended by written agreement between the claimant and the governmental entity and our case law teaches that the 90-day period may be extended by tolling, waiver or estoppel. Carswell v. Oklahoma State Univ., 1999 OK 102, ¶ 13, 995 P.2d 1118, 1122; Vaughan v. City of Broken Arrow, 1999 OK 47, ¶ 7, 981 P.2d 316, 320; Cortright v. City of Oklahoma City, 1997 OK 158, ¶ 9, 951 P.2d 93, 96; and Whitley v. Oologah Independent School Dist., No. I-4, 1987 OK 67, ¶ 6, 741 P.2d 455.

      . Dean v. Wes Watkins Area Vocational-Technical School Dist., No. 25, 1989 OK 141, ¶ 9, 782 P.2d 116, 119. See also, State for use of Board of County Commissioners of Pontotoc County ex rel. Braly v. Ford, 1941 OK 270, § 25-27, 189 OK 299, 116 P.2d 988, 992, quoting 1 C.J.S., Abatement and Revival, 29, § 2, that " 'Even under the strict rules of the common law, the abatement of an action is not fatal to the cause of action; the customary procedure used to bring about an abatement was not designed to operate upon any substantial rights or liabilities as between the parties.""

      . Dismissal of a premature action abates the action, but the right remains with the plaintiff to institute a new action when the cause accrues. State for use of Board of County Commissioners of Pontotoc County ex rel. Braly v. Ford, supra., note 10.

      . 51 0.$.2001, § 157(B) reads in part:
      B. No action for any cause arising under this act, Section 151 et seq. of this title, shall be maintained unless valid notice has been given and the action is commenced within one hundred eighty (180) days after denial of the claim as set forth in this section....

      . The plain language of § 157(A) of the GTCA reflects the legislative intent that a claimant must allow the governmental entity ninety days to act upon a timely notice of claim before bringing a governmental tort claims action and no further construction is required or permitted. Duncan v. City of Nichols Hills, 1996 OK 16, 115, 913 P.2d 1303, 1307.

      . The concurring in part and dissenting in part opinion essentially concludes that the State waived the affirmative defense of statute of limitations by failing to raise it in its filed answer. Hathaway presented but one argument in this appeal. He contended that his premature suit against the State ripened when his timely filed tort claim was deemed denied by operation of law and that it was unnecessary for him to refile or amend his petition. Hathaway did not contend that the State waived the affirmative defense of statute of limitations in his response to the summary judgment, in his petition in error or in his petition for certiorari.
      In Reddell v. Johnson, 1997 OK 86, ¶¶ 6-7, 942 P.2d 200, 202, we said,
      An appellate court is generally confined to the issues raised by the parties and presented by the proof, pleadings, petition in error and briefs....
      ... (CJourts are not free to play the role of advocate, and raise claims or defenses that should be left to the parties.... [The] court cannot raise the defense of waiver when it was not raised by the party who could have done so....
      The individualized question of whether a litigant has, during the course of litigation, waived its procedural right to assert an affirmative defense is not an issue which relates to the public interest and may be raised for the first time on appeal.

      . McDaneld v. Lynn Hickey Dodge, Inc., 1999 OK 30, ¶¶ 11-12, 979 P.2d 252, 256-257; Isbell v. State ex rel. The Retirement and Pension Board of the Department of Public Safety, 1979 OK 156, ¶ 11, 603 P.2d 758, 760; Poafpybitty v. Skelly Oil Company, 1964 OK 162, ¶¶ 18-19, 394 P.2d 515, 519-520.

      . 51 0.$.2001§ 156(B).

      . 51 0.8.2001 § 157(A) states that:
      "A claim is deemed denied if the state or political subdivision fails to approve the claim in its entirety within ninety (90) days, unless the state or political subdivision has denied the claim or reached a settlement with the claimant before the expiration of that period ..."
      51 0.S.2001 § 157(B) provides that:
      ''No action for any cause arising under this act, Section 151 et. seq. of this title, shall be maintained unless valid notice has been given and the action is commenced within one hundred eighty (180) days after denial of the claim as set forth in the section ..."

      . Trent v. Board of Commissioners of Johnston County, 1988 OK 15, ¶ 6, 755 P.2d 615 (Opala, J., dissenting).

      . Whitley v. Oologah Independent School District, 741 P.2d 455, 457 (1987) (Opala, J., concurring).

      . Some authority seems to suggest that prematurely filing a claim before the expiration of the no-suit bar will be fatal. In Johnston v. City of Seattle, 95 Wash.App. 770, 976 P.2d 1269 (1999), the Washington Court of Appeals, Division I, held that a claim prematurely filed before the expiration of the sixty-day no-suit time bar was subject to judicial termination.

      . Trent v. Board of Commissioners of Johnston County, 1988 OK 15, ¶ 6, 755 P.2d 615 (Opala, J., dissenting).

      . Bivins v. State ex rel. Oklahoma Memorial Hospital 917 P.2d 456 (1996). (holding that the governmental entity's request for more information extended the 90-day no-suit time bar.)

      . City of Tahlequah v. Lake Region Elec., 2002 OK 2, 47 P.3d 467 (Opala, J., dissenting).

      . Recent Oklahoma legislation explicitly prevents judicial punishment of premature filings by making them effective either temporarily or forever. 12 O.S.2001 § 653; 12 O.S.2001 § 9904; Cf. Porter v. Tayer, 385 P.2d 808 (1963); (holding that a motion for new trial, prematurely filed before the court's pronouncement of final judgment, does not preserve for review any assignments of error).

      . In the instant cause, the term “premature” is used in the sense that the cause was filed too early, i.e. before the 90-day investigative period provided in 51 O.S. Supp.1995 § 157(A), see note 14, infra, had run. See, Chas. L. Harney, Inc. v. State, 217 Cal.App.2d 77, 31 Cal.Rptr. 524 (1963); Webster’s New International Dictionary of the English Language 1950 (2dEd.l961).

      . Title 51 O.S.1991 § 164 provides:
      "The laws and statutes of the State of Oklahoma and the Rules of Civil Procedure, as promulgated and adopted by the Supreme Court of Oklahoma insofar as applicable and to the extent that such rules are not inconsistent with the provisions of this act, shall apply to and govern all actions brought under the provisions of this act.”

      . Title 12 O.S.1991 § 2012(B), see note 17, infra.

      . Title 12 O.S.1991 § 2008, see note 19, infra.

      . Furr v. Thomas, see note 19, infra, and its discussion of 12 O.S.1991 § 2008(C), note 19, infra.

      . Lucas v. Independent Public School Dist. No. 35, see note 25, infra; Cortright v. City of Oklahoma City, 1997 OK 158, ¶ 8, 951 P.2d 93.

      . Carswell v. Oklahoma State Univ., see note 36, infra; Doe v. Independent School Dist. No. 1-89, see note 37, infra; Trent v. Board of County Comm'rs, see note 37, infra.

      . Reirdon v. Wilburton Bd. of Educ., see note 34, infra; Conway v. Ohio Casualty Ins. Co., see note 33, infra.

      . Title 12 0.9.1991 § 2201 provides in pertinent part:
      "A. Judicial notice shall be taken by the court of the common law, constitutions and public statues in force in every state, territory and jurisdiction of the United States...."

      . It is notable that 51 0.8.1991 § 164, see note 2, supra, provides that the rules of civil procedure "shall apply" to governmental tort claims and that the applicable rules, 12 0.S.1991 § 2012, see note 17, infra, and 12 0.S.1991 § 2008, see note 19, infra, both use the mandatory term "shall." The use of "shall" generally signifies a legislative command. World Pub. Co. v. White, 2001 OK 48, ¶ 7, 32 P.3d 835; United States through Farmers Home Admin. v. Hobbs, 1996 OK 77, 17, 921 P.2d 338; State ex rel. Macy v. Freeman, 1991 OK 59, ¶ 8, 814 P.2d 147; Forest Oil Corp. v. Corp. Comm'n, 1990 OK 58, ¶ 26, 807 P.2d 774. Nevertheless, the term can be permissive. Minie v. Hudson, 1997 OK 26, ¶ 7, 934 P.2d 1082; Texaco, Inc. v. City of Oklahoma City, 1980 OK 169, ¶ 9, 619 P.2d 869. Nevertheless, failure to follow the directives of pleading a defense result in its waiver. Title 12 § 2008(C), see note 18, infra; Furr v. Thomas, see note 20, infra.

      . Title 51 O.S.1991 § 153; Salazar v. City of Oklahoma City, 1999 OK 20, 119, 976 P.2d 1056.

      . Salazar v. City of Oklahoma City, see note 11, supra. See, 51 O.S. Supp.2001 § 155.

      . Anderson v. Eichner, 1994 OK 136, 119-10, 890 P.2d 1329.

      . Title 51 0.S. Supp.1995 § 157 provides:
      "A. A person may not initiate a suit against the state or a political subdivision unless the claim has been denied in whole or in part. A claim is deemed denied if the state or political subdivision fails to approve the claim in its entirety within ninety (90) days, unless the state or political subdivision has denied the claim or reached a settlement with the claimant before the expiration of that period. If the state or a political subdivision approves or denies the claim in ninety (90) days or less, the state or political subdivision shall give notice within five (5) days of such action to the claimant at the address listed in the claim. If the state or political subdivision fails to give the notice required by this subsection, the period for commencement of an action in subsection B of this section shall not begin until the expiration of the ninety-day period for approval. The claimant and the state or political subdivision may continue attempts to settle a claim, however, settlement negotiations do not extend the date of denial unless agreed to in writing by the claimant and the state or political subdivision.
      B. No action for any cause arising under this act, Section 151 et seq. of this title, shall be maintained unless valid notice has been given and the action is commenced within one hundred eighty (180) days after denial of the claim as set forth in this section. The claimant and the state or political subdivision may agree in writing to extend the time to commence an action for the purpose of continuing to attempt settlement of the claim except no such extension shall be for longer than two (2) years from the date of the loss."

      . Title 51 O.S. Supp.1995 § 157, see note 14, supra.

      . Carswell v. Oklahoma State Univ., 1999 OK 102, 112, 995 P.2d 1118; Vaughan v. City of Broken Arrow, 1999 OK 47, ¶ 7, 981 P.2d 316.

      . Title 12 0.$.1991 § 2012 provides in pertinent part:
      "A. WHEN PRESENTED. A defendant shall serve his answer within twenty (20) days after the service of the summons and petition upon him, except as otherwise provided by the law of this state....
      , B. HOW PRESENTED. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:
      1. Lack of jurisdiction over the subject matter;
      2. Lack of jurisdiction over the person;
      3. Improper venue;
      4. Insufficiency of process;
      5. Insufficiency of service of process;
      6. Failure to state a claim upon which relief can be granted; -
      7. Failure to join a party under Section 19 of this act;
      8. Another action pending between the same parties for the same claim;
      9. Lack of capacity of a party to be sued; and
      10. Lack of capacity of a party to sue.
      A motion making any of these defenses shall be made before pleading if a further pleading is permitted...." .
      Section 2012 was amended effective November 1, 2000. However, the above quoted language remains substantially unchanged.

      . Title 12 O.S.1991-2012, see note 17, supra; Cortright v. City of Oklahoma City, 1997 OK 158, ¶ 4, 951 P.2d 93.

      . Title 12 0.$.1991 § 2008 provides in pertinent part:
      "... B. DEFENSES; FORM OF DENIALS. A party shall state in short and plain terms his defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. ...
      C. AFFIRMATIVE DEFENSES. In a pleading to a preceding pleading, a party shall set forth affirmatively: '
      to... 18. Statute of limitations ..."

      . Failure to plead the statute of limitations operates as a waiver. Title 12 0.$.1991 § 2008(C), note 19, supra; Furr v. Thomas, 1991 OK 93, ¶ 23, 817 P.2d 1268. The justice of a rule precluding a defendant's reliance on an affirmative defense not specifically pleaded is apparent. An affirmative defense is one which directly or implicitly concedes the basic position of the opposing party, but which asserts that notwithstanding that concession the opponent is not entitled to prevail because the plaintiff is precluded for some other reason. Thus, a plaintiff would not necessarily (and, indeed, probably would not) be on notice that a defendant is relying on an affirmative defense from a simple denial of the plaintiff's claims. Such notice is obviously important because even though the defendant would normally have the burden of production and persuasion on his affirmative defense, the plaintiff would have to produce rebuttal evidence pertaining to the defenses. Liberty Mut. Ins. Co. v. Ben Lewis Plumbing, Heating & Air Conditioning, Inc., 121 Md.App. 467, 710 A.2d 338, 343 (1998), cert. granted, 351 Md. 161, 717 A.2d 384 (1998), aff'd, 354 Md. 452, 731 A.2d 904 (1999).

      . Finn v. United States, 123 U.S. 227, 8 S.Ct. 82, 31 L.Ed. 128 (1887); Nordman v. School Dist. No. 43, 1941 OK 327 110, 121 P.2d 290.

      . See, State ex rel. Central Collection Unit v. DLD Assoc. Ltd. Partnership, 112 Md.App. 502, 685 A.2d 873, 877-78 (1996).

      . State v. Evans, 47 Tenn.App. 1, 334 S.W.2d 337, 343 (1959). See also, Karterman v. Unknown Heirs, Devisees, Successors in Interest & Claimants, 127 Idaho 384, 901 P.2d 491, 493 (1995).

      . Title 51 O.S.1991 § 153; Salazar v. City of Oklahoma City, see note 11, supra.

      . Lucas v. Independent Public School Dist. No. 35, 1983 OK 121, 17, 674 P.2d 1131, has been superseded by statute only to the extent that it stands for the proposition that notice provisions may be satisfied through substantial compliance. Minie v. Hudson, 1997 OK 26, 16, 934 P.2d 1082. Here, neither the manner nor the timeliness of the notice is at issue.

      . Title 12 0.$.1991 § 100 provides:
      "If any action is commenced within due time, and a judgment thereon for the plaintiff is reversed, or if the plaintiff fail in such action otherwise than upon the merits, the plaintiff, or, if he should die, and the cause of action survive, his representatives may commence a new action within one (1) year after the reversal or failure although the time limit for commencing the action shall have expired before the new action is filed.
      The statute has not been revised or amended subsequent to our decision in Lucas v. Independent Public School Dist. No. 35, see note 25, supra. Therefore, reference is to the current version.

      . Title 51 0.8. Supp.1995 § 157(B) provides in pertinent part:
      66 . The claimant and the state or political subdivision may agree in writing to extend the time to commence an action for the purpose of continuing to attempt settlement of the claim except no such extension shall be for longer than two (2) years from the date of the loss."

      . -When federal rules of civil procedure are similar to this state's procedural provisions, federal jurisprudence is instructive in interpreting the Oklahoma provision. Payne v. Dewitt, 1999 OK 93, ¶ 8, 995 P.2d 1088; McDaneld v. Lynn Hickey Dodge, Inc., 1999 OK. 30, ¶ 7, 979 P.2d 252. See also, In re Burlington Motor Holdings Inc., 242 BR. 156, 158 (Bkrtcy.D.Del.1999) [Sovereign immunity did not go to subject matter jurisdiction of bankruptcy court, but was in nature of affirmative defense to post-petition transfer claims, which entities waived by filing proofs of claim against debtors' estate.]; Sanderson-Cruz v. United States, 88 F.Supp.2d 388, 392 (E.D.Penn.2000) [Issue of whether state statute limiting liability of defendant is affirmative defense that must be timely pled does not become jurisdictional prerequisite merely because defendant is United States and is being sued under Federal Tort Claims Act.].

      . Title 51 O.S. Supp.1988 § 154(A)(2) provides in pertinent part: .
      "A. The total liability of the state and its political subdivisions on claims within the scope of this act, Section 151 et seq. of this title, arising out of an accident or occurrence happening after. the effective date of this act, Section 151 et seq. of this title, shall not exceed:
      ... 2. One Hundred Thousand Dollars ($100,-000.00) to any claimant for his claim for any other loss arising out of a single act, accident, or occurrence...."
      The statute has been amended and the cap for an award arising from a single accident now stands at $125,000.00. 51 0.8. Supp,2000 § 154(A)(2).

      . Fed.R.Civ.P. 8 provides in pertinent part:
      "... (b) Defenses; Form of Denials. A party shall state in short and plain terms the party's defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. ... .
      (c) Affirmative Defenses, In pleading to a preceding pleading, a party shall set forth affirmatively ... any other matter constituling an avoidance or affirmative defense....
      (d) Effect of Failure to Deny. Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading...." [Emphasis in original] -

      . Title 12 0.$.1991 § 2008, see note 19, supra.

      . Bivins v. State ex rel. Oklahoma Memorial Hosp., 1996 OK 5, ¶ 12, 917 P.2d 456.

      . See, Bivins v. State ex rel. Oklahoma Memorial Hosp., note 32 at § 13, supra; Reirdon v. Wilburton Bd. of Educ., 1980 OK 67, ¶ 4, 611 P.2d 239; Conway v. Ohio Casualty Ins. Co., 1983 OK 83, ¶ 7, 669 P.2d 766. These cases have been superseded by statute to the extent that substantial compliance through something other than a written notification to the political subdivision is sufficient to put the governmental entity on notice. Minie v. Hudson, see note 25, supra. However, here neither the manner nor the timeliness of the notice is at issue.

      . Reirdon v. Wilburzon Bd. of Educ., see note 33, supra; Conway v. Ohio Casualty Ins. Co., see note 33, supra.

      . Carswell v. Oklahoma State Univ., see note 36, infra [Equitable considerations taken into effect when State provided a date certain for denial outside the strict 90-day time limitation provided in the Tort Claim Act.]; Cortright v. City of Oklahoma City, 1997 OK 158, ¶ 9, 951 P.2d 93 [Attorney's letter sent to city memorializing an understanding that city would not consider tort claim denied by operation of law after 90 days and that city docketed claim for consideration by city council after initial 90-day period had run without repudiating alleged agreement raised issue of material fact as to when 180-day limitations period began.]; Jarvis v. City of Stillwater, 1987 OK 5, ¶ 5, 732 P.2d 470 [City's letter requesting information and mentioning investigation of claim was insufficient to estop political subdivision from asserting time bar under Tort Claims Act.].

      . Carswell v. Oklahoma State Univ., 1999 OK 102, ¶ 21, 995 P.2d 1118.

      . Carswell v. Oklahoma State Univ., see note 36, supra; Doe v. Independent School Dist. No. I-89, 1988 OK 115, ¶ 10, 780 P.2d 659; Trent v. Board of County Comm'rs, 1988 OK 15, ¶ 10, 755 P.2d 615.

      . Carswell v. Oklahoma State Univ., see note 36, supra.

      . Title 12 0.$.1991 § 2012, see note 17, supra.

      . An arrest of proceedings need not be based on the absence of judicial power to determine an issue. Rather, it is a tool which may be used to prevent the filing of suit from interfering with the administrative process. See, State ex rel. Oklahoma Dept. of Mines v. Jackson, 1997 OK 149, ¶ 7, 950 P.2d 306. The doctrine of abatement is rooted in notions of judicial economy, offering courts an opportunity to maintain a narrow focus on matters currently at issue, while preserving premature issues for future review if and, when such issues become viable causes of action. The preservation of issues serves the dual purpose of empowering courts to heighten adjudicative efficiency and avoiding unnecessary repetition in filing or other waste of limited private resources. At the same time, increased judicial efficiency offers a valuable secondary benefit in the form of greater public confidence in the judiciary. O'Rourke v. Provident Life & Accident Ins. Co., 48 F.Supp.2d 1383, 1384-85 (S.D.Florida 1999). The Authority might also have requested dismissal. However, in furtherance of judicial economy, abatement is frequently preferable over dismissal as a means of postponing the adjudication of issues that have not yet become viable. O'Rourke v. Provident Life & Accident Ins. Co., this note, supra. Where the rejection of a claim is a prerequisite to suit, the claim may go forward as a viable cause of action upon rejection. Chas. L. Harney, Inc. v. State, this note, supra. See also, People v. Ladd, 185 Ill.2d 602, 236 Ill.Dec. 773, 708 N.E.2d 359, 363 (1999), appeal allowed, 178 Ill.2d 588, 232 Ill.Dec. 850, 699 N.E.2d 1035 (1998), aff'd, 185 Ill.2d 602, 236 Ill.Dec. 773, 708 N.E.2d 359 (1999) [Motions premature when filed may become meritorious motions.]. To the contrary, see, Melcher v. Federal Communications Comm'n, 134 F.3d 1143, 1162 (C.A.D.C.1998). The fact that a statutory scheme may place the authority for a determination in one arena, i.e. a governmental agency rather than the district court, does not necessarily negate the district courts jurisdiction to determine an issue related to the controversy. See, City of Muskogee v. Martin, 1990 OK 70, ¶ 22, 796 P.2d 337. Further, sovereign immunity does not go to subject matter jurisdiction. Rather, it is an affirmative defense which may be waived. See, In re Burlington Motor Holdings, Inc., 242 BR. 156, 158 (1999).

      . Title 12 0.$.1991 § 2008, see note 19, supra.

      . The Authority did enumerate a number of items as affirmative defenses. The Authority's Answer, filed on July 10, 2000, provides in pertinent part:
      "... AFFIRMATIVE DEFENSES
      , 16. The Plaintiff was detained by the security officers only to determine if he had reason to be at the Hospital.
      17. The Plaintiff was arrested by Officer Mark Ingram UHAPD.
      18. The State of Oklahoma was not negligent, and the state is therefore not liable in the incident alleged.
      19. The Governmental Tort Claims Act, OKLA.STAT. tit. 51 § 151 et seq., bars or reduces Plaintiff's claims.
      20. The Governmental Tort Claims Act, OKLA. STAT. tit, 51 § 151 et seq., provides immunity from this action.
      21. Defendant State of Oklahoma reserves the right to assert additional defenses as the [sic] become apparent in the course of discovery herein...."

      . Furr v. Thomas, see note 20, supra.

      . Ceasar v. City of Tulsa, 1993 OK CIV APP 150, ¶ 6, 861 P.2d 349. In Ceasar, the Court of Civil Appeals determined that a prematurely filed governmental tort claims suit was cured when the petition was amended within 180 days of the claim's denial. The case does not stand for the broad proposition, as the Authority contends, that a prematurely filed cause may only be cured through the filing of an amended petition. Even if the opinion were construed to have a broader application, Court of Civil Appeals opinions not ordered for publication by this Court are persuasive only and have no precedential effect. Rule 1.200, Supreme Court Rules, 12 O.S. Supp.1997, Ch. 15, App. 1.

      . Nguyen v. State, 1990 OK 21, 14, 788 P.2d 962.

      . R. Eddy, "Litigating a claim under the Governmental Tort Claims Act: Just a stroll through the briar patch," 65 Okla.B.J. 4301 (1994).


text:
    2002 OK CR 25
    Marvin WASHINGTON, Petitioner, v. DEPARTMENT OF CORRECTIONS, Ron Ward, Director Warden Ray, CCA, Respondent.
    No. HC 2002-0292.
    Court of Criminal Appeals of Oklahoma.
    June 12, 2002.
   ORDER GRANTING EXTRAORDINARY RELIEF AND REMANDING MATTER TO DISTRICT COURT

{1 On March 19, 2002, Petitioner, pro se, filed an application to overturn the sanctions imposed by the District Court of Hughes County in District Court Case No. CV-Ol-227. Petitioner filed an application for a writ of habeas corpus in the District Court of Hughes County challenging his conviction for First Degree Manslaughter in the District Court of Osage County, District Court Case No. CF-90-209. The State requested sance-tions be imposed based upon a showing that Petitioner litigated the same issues repeatedly in state and federal courts and had filed "numerous other actions asserting a variety of claims all similarly baseless and frivolous".

T2 Petitioner filed an objection to the State's motion for sanctions in the District Court of Hughes County. The Honorable George M. Butner, District Judge, found Petitioner did "not dispute his litigious history or the fact that the issues raised had been previously litigated in the courts". Judge Butner found Petitioner's objection "patently frivolous and evidence [of] yet another attempt to trifle with the courts".

§$3 Citing Section 566(A)(1) of Title 57 as authority, Judge Butner overruled Petitioner's objection and imposed the following sanctions:

1. The Oklahoma Department of Corree-tions was directed to deduct from Petitioner's account 720 days of accumulated earned credits;
2. The Oklahoma Department of Corree-tions was directed to revoke Petitioner's permission to have any non-essential personal property including, but not limited to, personal clothing (Le., non-standard DOC issue jail clothing), books, television, radios, stereos, watches, clocks, fans, and any other electronic devices, for a period of six months;
3. And, at the end of this six months time period, the restoration of personal property was left to the discretion of the DOC.

14 We agree with the District Court that sanctions in this matter are appropriate. However, we find the sanctions that have been imposed inappropriate and without authority to enforee. These sanctions infringe upon the administration of the prison system which has been delegated to the Executive Branch and not to the courts. The management and running of our prisons is a function of the executive branch of government. Fields v. Driesel, 1997 OK CR 83, ¶ 29, 941 P.2d 1000. See Bell v. State, 1962 OK CR 160, ¶ 18, 381 P.2d 167 ("the incarceration of a conviet is one of administration for an arm of the executive branch of the government.")

15 In Taylor v. State, 2001 OK CR 28, ¶ 6, 30 P.3d 1160, we determined Section 566 of Title 57, relied upon by the trial court in this matter, is not applicable to criminal cases. Instead, we referenced Section 566.2 which became effective November 1, 2001, and which addresses frivolous or malicious filings in criminal cases. We also recognized that courts have inherent powers to protect themselves from vexatious litigation and to sanction anyone who clogs the courts with frivolous filings and disrupts its proceedings. However, we also advised that inherent powers must be exercised with restraint and discretion. Id. at 117-8.

16 Sanctions must be designed to fit the specific facts of the case and to remedy the problem being addressed. Id. at 19. When the court's inherent power to impose sanctions is relied upon, and the court does not rely upon Section 566.2 of Title 57, reasonable and appropriate sanctions would be prepayment of all fees, dismissals and/or awards of costs. See Cotner v. Creek County District Court, 1996 OK CR 3, 911 P.2d 1215 (wherein this Court denied in forma pauper-is status to Mr. Cotner for abusing the system and clogging the docket of this Court with frivolous, duplicitous filings), and Berryhill v. State, 2002 OK CR 7, 43 P.3d 410 (wherein the District Court of Oklahoma County awarded $100.00 in attorney fees to the Office of the District Attorney as a sancetion against Mr. Berryhill for the filing of a frivolous and vexatious request for collateral relief and also assessed an additional sanetion of $25.00 as court costs, warranted by Mr. Berryhill's blatant disrespect).

{7 Therefore, the sanctions imposed by the District Court in this matter are VACATED and the matter is REMANDED to the District Court for imposition of sanctions consistent with this Order.

1 8 IT IS SO ORDERED.

{9 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 12th day of June, 2002.

/s/ Gary L. Lumpkin-Coneurs in Results GARY L, LUMPKIN, Presiding Judge

Is) Charles A. Johnson CHARLES A. JOHNSON, Vice Presiding Judge.

/s/ Charles S. Chapel CHARLES S8. CHAPEL, Judge

/s) Reta M. Strubhar RETA M. STRUBHAR, Judge

/s/ Steve Lile, Dissents STEVE LILE, Judge


author: CHAPEL, Judge.

text:
    2002 OK CR 26
    Jimmy Jack PINKLEY, Appellant, v. STATE of Oklahoma, Appellee.
    No. F-01-402.
    Court of Criminal Appeals of Oklahoma.
    June 13, 2002.
    Rehearing Denied July 2, 2002.

      David Slane, Oklahoma City, OK, attornéy for defendant at trial.
    Vincent Antonioli, Assistant District Attorney, Guthrie, OK, attorney for the state at trial. |
    Thomas Purcell, Appellate Defense Counsel, Norman, OK, attorney for appellant on appeal.
    W.A. Drew Edmondson, Attorney General of Oklahoma, William R. Holmes, Assistant Attorney General, Oklahoma City, OK, attorneys for appellees on appeal.
   SUMMARY OPINION

CHAPEL, Judge.

1 1 Jimmy Jack Pinkley was tried by jury and convicted of Intimidation of a Witness in violation of 21 O.8.S8upp.1999, § 455, after former conviction of two or more felonies, in the District Court of Logan County, Case No. CF-99-279. In accordance with the jury's recommendation the Honorable Larry R. Brooks sentenced Pinkley to twenty (20) years imprisonment. Pinkley appeals from this conviction and sentence.

2 Pinkley raises four propositions in support of his appeal:

I. The evidence was insufficient to support the conviction;
II. Pinkley's conviction must be reversed because the trial court instructed the jury in such a way as to permit a felony conviction even though the State's case proved only a misdemeanor;
III. Prosecutorial misconduct deprived Pinkley of a fair trial; and
IV. Pinkley was denied a fair trial by the ineffective assistance of defense counsel. ‘

T3 After thorough consideration of the entire record before us on appeal including the original record, transcripts, briefs and exhibits of the parties, we find reversal is required by the law and evidence. In Propositions I and II, Pinkley claims the jury was misinstructed and there was not sufficient evidence to convict him. We find the jury was not properly instructed on all the elements of witness intimidation, was misin-structed as to the meaning of the legal term "testimony", and was unable to consider the evidence presented that Pinkley had committed the crime of witness intimidation.

T4 Pinkley was charged by Information with "unlawfully, knowingly, willfully and fe-loniously, threaten and inflict physical or mental harm to Daniel Gordon, to prevent the appearance of or alter the testimony and in retaliation for having given testimony of Daniel Gordon, a witness to a crime...." Section 455 of Title 21, the witness intimidation statute, states:

A. Every person who willfully prevents any person from giving testimony who has been duly summoned or subpoenaed or endorsed on the criminal information or juvenile petition as a witness, or who makes a report of abuse or neglect pursuant to Sections 7108 and 7104 of Title 10 of the Oklahoma Statutes or Section 10-104 of Title 48A of the Oklahoma Statutes, or who is a witness to any reported crime, or threatens or procures physical or mental harm through force or fear with the intent to prevent any witness from appearing in court to give his testimony, or to alter his testimony is, upon conviction, guilty of a felony punishable by not less than one (1) year nor more than ten (10) years in the State Penitentiary.
B. Every person who threatens physical harm through foree or fear or causes or procures physical harm to be done to any person or harasses any person or causes a person to be harassed because of testimony given by such person in any civil or criminal trial or proceeding, or who makes a report of abuse or neglect pursuant to Sections 7108 and 7104 of Title 10 of the Oklahoma Statutes or Section 10-104 of Title 48A of the Oklahoma Statutes, is, upon conviction, guilty of a felony punishable by not less than one (1) year nor more than ten (10) years in the State Penitentiary.

15 Following the statutory language, the elements of this crime are: (1) willfully (2) causing or threatening or procuring, or harassing (8) physical or mental harm (4) to a person (5) with the intent to prevent the person from appearing in court to testify OR with the intent to make the person alter his testimony OR because of testimony given by the person in any civil or criminal trial or proceeding OR to prevent or because of a report of abuse or neglect pursuant to See-tions 7103 and 7104 of Title 10 of the Oklahoma Statutes or Section 10-104 of Title 48A of the Oklahoma Statutes. The jury was not properly instructed on all these elements. To aid trial courts in future cases, we promulgate a Uniform Jury Instruction on Witness Intimidation in APPENDIX A of this Opinion.

16 The jury was initially instructed that the State must prove Pinkley willfully caused physical harm to any person because of testimony given in a criminal trial or proceeding. During deliberations, the jury asked for a definition of "testimony." The trial court replied, "Testimony is a statement by a person with knowledge of something." Pinkley's counsel did not object to the answer, saying it accurately reflected the discussion of the parties. The prosecutor noted, without objection, that the definition was consistent with the parties' off-the-record agreement that "statements given by a witness to a crime to a police or law enforcement officer in an investigatory setting satisfied the element that this person gave testimony in a trial or a eriminal proceeding.

T7 As counsel agreed with the modified instruction, we review his claim of error for plain error only. Plain error is present. These instructions (a) failed to inform the jury of the elements of the crime, and (b) misdefined an essential term. Although Pinkley was charged under both Sections 455(A) and (B), the jury was instructed only on the elements of Section 455(B). The instruction wholly failed to include the salient elements of Section 455(A), the intent to prevent a person from appearing in court to testify or to make a person alter his testimony. Failure to include elements of a erime in the instructions may rise to plain error. Here, the omission of elements of the crimes charged constitutes a substantial violation of a constitutional or statutory right-the rights to have the jury instructed on, and be convicted by proof beyond a reasonable doubt of, each clement of the crime.

T8 The law does not support the parties' inexplicable apparent consensus that statements made in the course of investigation constitute testimony in a trial or criminal proceeding. The standard legal definition of "testimony" is:

Evidence given by a competent witness under oath or affirmation; as distinguished from evidence derived from writings, and other sources. Testimony is particular kind of evidence that comes to tribunal through live witnesses speaking under oath or affirmation in presence of tribunal, judicial or quasi-judicial.... Testimony properly means only such evidence as is delivered by a witness on the trial of a cause, either orally or in the form of affidavits or depositions.

The evidence statute provides that testimony is taken in three modes: by affidavits, deposition, or oral examination-all of which require oath or affirmation. The evidence code, while not defining the term, requires that each witness shall agree by oath or affirmation to "testify" truthfully. Throughout the Evidence Code the term "testimony" is used in conjunction with statements made under oath. These statutory references clearly do not contemplate testimony as including unsworn statements, even made in the course of investigation.

T9 The term "proceeding" is also well-understood. Black's Law Dictionary defines ment." ° "proceeding" in part as: "In a general sense, the form and manner of conducting juridical business before a court or judicial officer. Regular and orderly progress in form of law, including all possible steps in an action from its commencement to the execution of judgement. The commencement of a eriminal action occurs after a defendant is charged by indictment or Information, well after the investigation of the crime. Oklahoma statutes and court rules identify several types of "proceedings" including a variety of pre- and post-trial motions, depositions and hearings. In felony eriminal cases the Oklahoma Constitution provides for a preliminary. hearing. In all these events, any witness is sworn (or otherwise under oath) befgre evidence is presented. This Court has held that inconsistent statements made under oath may be 'used as substantive evidence of guilt, but inconsistent statements made to a police officer during the investigation of a erime may be used only for impeachment, as those statements were not made in the course of a proceeding.

T10 In Mehdipour v. State, we determined that § 455 encompasses both charges of attempt to intimidate a witness and the completed crime of witness intimidation. Mehdipour holds that witness intimidation focuses on the defendant's conduct in intentionally preventing or threatening to prevent testimony, as opposed to whether the target witness actually testifies. However, Meh-dipour specifically interprets only § 455(A) (intimidation before the fact), and does not

mention § 455(B) (subsequent intimidation). Moreover, Mehdipour neither discusses nor defines the parameters of the term "testimony" as used in the statute. When using the term "testimony" MeAhdipour consistently referred to the witness's projected statements to be made against an accused person at trial, under oath. This use of the term is consistent with the weight of authority above.

111 In addition to problems with the instructions on the elements of the crime, Pinkley also complains the evidence was insufficient to convict him. Pinkley first correctly notes that the jury was not instructed on § 455(A), which prohibits the use of threats or force to prevent someone from testifying. Despite Pinkley's characterization otherwise, the victim, Gordon, did not say he was beat up because inmates don't like snitches. cause Pinkley didn't like him snitching on Rob Williams. In his reply brief, Pinkley admits "[i]f there were a crimé called 'beating someone up as retaliation for talking to authorities' Mr. Pinkley would have been guilty." There is such a crime, and it is codified at § 455(A). While the evidence on this point conflicted, any properly instructed rational trier of fact could have found Pinkley intended to punish Gordon for talking to law enforcement and dissuade him from testifying at Rob Williams's trial. As Pinkley's jury was not so instructed, it had no opportunity to properly consider that evidence. He said he was beat up be-

12 Pinkley also claims that there was no evidence he violated $ 455(B), which prohibits foree or threats because of testimony given in a criminal trial or proceeding, He correctly argues that the evidence showed Gordon had not testified against Williams before Pinkley beat him up; there was no evidence that Gordon ever testified against Williams in court. The State suggests that our interpretation of the statute in Mehdip-our cures this defect of proof. As we discuss above, Mehdipour did not involve § 455(B), did not discuss what evidence would be sufficient to prove a charge under that subsection, and sheds no light on this issue. There was no evidence presented which would support a charge under § 455(B); taken in the light most favorable to the State, no rational trier of fact could have found the element of "testimony given in a criminal trial or proceeding" beyond a reasonable doubt.

113 While Pinkley claims insufficient evidence, and we agree the evidence was insufficient for conviction under these instructions, the case should not be remanded with instructions to dismiss. The sufficiency problem in this case stems directly from the erroneous instructions. Had the jury been properly instructed, sufficient evidence was presented to convict Pinkley under § 455(A). As the State presented sufficient evidence to convict Pinkley of the crime charged, the Court should give a properly instructed jury an opportunity to consider that evidence. This case is reversed and remanded for a new trial.

Decision

114 The Judgment and Sentence of the District Court is REVERSED and REMANDED for a new trial.

LUMPKIN, PJ ., JOHNSON, V.P.J., STRUBHAR, J. and LILE, J., concur.

APPENDIX A

Witness Intimidation-Elements

No person may be convicted of witness intimidation unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, willfully;

Second, [causing] or [threatening] or [procuring], or [harassing];

Third, physical or mental harm;

Fourth, through force or fear;

Fifth, to a person;

Sixth, [with the intent to prevent the person from appearing in court to testify] OR [with the intent to make the person alter his testimony] OR [because of testimony given by the person in any civil or criminal trial or proceeding] OR [to prevent or because of a report of abuse or neglect pursuant to Sections 7103 and 7104 of Title 10 of the Oklahoma Statutes or Section 10-104 of Title 43A of the OKkla-homa Statutes].

Statutory Authority: 21 0.8.2001, § 455.

      . 21 0.$.2001, § 455. The Oklahoma Statutes as a whole were republished in the official 2001 edition. The text of § 455 did not change.

      . The trial court noted that in crafting the definition given to the jury, the court and counsel consulted the criminal and civil OUJIs, Black's, Webster's, and the statutes.

      . Allen v. State, 1994 OK CR 13, 871 P.2d 79, 103, cert. denied, 513 U.S. 952, 115 S.Ct. 370, 130 L.Ed.2d 322; Sherburn v. State, 1990 OK CR 10, 787 P.2d 1282, 1285; Hackett v. State, 1988 OK CR 44, 751 P.2d 761, 763; Maple v. State, 1983 OK CR 52, 662 P.2d 315, 317.

      . 20 0.$.2001, § 3001.1; In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 LEd.2d 368 (1970).

      . Black's Law Dictionary, 1324 (5th Edition, 1979).

      . 12 0.S.2001, § 421.

      : 12 0.$.2001, § 2603. Oklahoma cases consistently refer to "testimony" when describing statements made under oath. The United States Supreme Court recently noted that, traditionally, a witness giving evidence was thought to have "testified" when the evidence was given under oath. United States v. Hubbell, 530 U.S. 27, 51 n. 2, 120 S.Ct. 2037, 2050 n. 2, 147 LEd.2d 24 (2000)(Thomas, J., concurring, discussing history of privilege against self-incrimination).

      . For example, the Evidence Code provides that an inconsistent statement is not hearsay if the declarant testifies at the trial or hearing and is subject- to cross-examination, and the statement was made under oath at a trial, hearing or other proceeding, or in a deposition. 12 0.S.2001, § 2801(4)(a)(1).-

      . Black's Law Dictionary, 1083 (5th Edition, 1979).

      . Okla. Const. art. 2, § 17.

      . Omalza v. State, 1995 OK. CR 80, 911 P.2d 286, 302, citing 12 O.S.1981, § 2801(4)(a)(1).

      . 1998 OK CR 23, 956 P.2d 911.

      . Mehdipour, 956 P.2d at 914-15.

      . Pinkley suggests that he is at most guilty of the misdemeanor of assault and battery. In denying Pinkley's requested instruction on misdemeanor assault and battery, the trial court noted that, given the uncontroverted evidence as to the type and level of injury, the evidence supported aggravated assault and battery rather than a misdemeanor charge. This assessment appears correct. The appropriate "lesser" charge, as instructed, was aggravated assault and battery.

      . Spuehler v. State, 1985 OK CR 132, 709 P.2d 202, 203-04. Pinkley cites to several cases which are factually distinguishable. Here, there was ample evidence of the elements on which the jury was not instructed, and no evidence at all on the elements in the instruction. The evidence is not ambiguous, but clearly supports the State's claim that Pinkley intended to threaten and harm Gordon to prevent him from testifying.

      . Given this resolution, Propositions III and IV are moot.


text:
    2002 OK CR 27
    Reggie Neal LOONEY, Appellant, v. STATE of Oklahoma, Appellee.
    No. RE-2002-242.
    Court of Criminal Appeals of Oklahoma.
    June 24, 2002.
   ORDER DIRECTING CONSOLIDATION OF RECORDS, DENYING REQUEST TO SUPPLEMENT APPEAL RECORD AND DIRECTING COUNSEL TO CLARIFY NATURE OF APPEAL

T1 On April 28, 2000, Appellant, represented by counsel, entered a guilty plea to the charge of Unlawful Possession of a Precursor Substance with no Attached Permit, after Former Conviction of Two or More Felonies, in Case No. CF-2000-61, in the District Court of Garvin County. Appellant was sentenced to ten (10) years, with imposition of the sentence being delayed pending Appellant's successful completion of a Drug Court Program.

T2 Garvin County participates in the Drug Court Program of the 21st Judicial District, which is located in McClain County. On April 28, 2000, Appellant was admitted to the McClain County Drug Court Program, and assigned Case No. DC-00-8. On January 18, 2002, Appellant was terminated from the Drug Court Program in MeClain County, and on January 28, 2002, he was sentenced to ten (10) years incarceration in Garvin County Case No. CF-2000-61.

1 3 On February 7, 2002, a Notice of Intent to Appeal was filed with this Court by Appellant's trial counsel, Billy D. Vandever. The Notice states that Appellant was convicted in Case No. CF-2000-61, was sentenced to ten (10) years, and he now intends to appeal that conviction. The Designation of Record attached to Appellant's Notice of Intent to Appeal designates for inclusion in the appeal record, among other items, the MeClain County Drug Court Performance Contract and the Order Terminating Defendant [Appellant] from Drug Court.

14 On February 27, 2002, appellate counsel, Danny Lohmann, filed a Drug Court Termination Petition in Error, and a Supplemental Designation of Record. The Petition in Error stated that Appellant was appealing from his Drug Court termination, and requested relief in the form of reversal of the Drug Court termination order. Attached to the Petition in Error is a copy of the Judgment and Sentence entered in Case No. CF-2000-61. The Supplemental Designation of Record requests preparation of the entire District Court file in Case No. CF-2000-61 from the District Court of Garvin County.

{5 On March 18, 2002, Appellant filed an Application for this Court to Issue Instructions on How the Record Should be Completed, and tendered for filing a Motion to Supplement the Record on Appeal, and Brief in Support. The Application for Instructions states the facts of Appellant's cases as set forth above. Counsel states in his application "It appears from the review of the doeu-ments Appellate Defense Counsel has received is (sic) that this case is a(sic) an appeal from a Garvin County conviction resulting from a Drug Court Termination in McClain County." Counsel states the Designation of Record filed on February 7, 2002, designated certain items found only in the Drug Court case file, specifically, the Drug Court performance contract and the order terminating Appellant from Drug Court. These items are not part of the Garvin County Case file. Appellant stated that he obtained certified copies of the documents from the McClain County Drug Court file and requested permission from the Garvin County Clerk to file those documents of record in the Garvin County Case file. Appellant was advised that filing of those documents in the Garvin County Case file would not be possible.

T 6 In response to this information, Appellant tendered for filing with this Court his Motion to Supplement the Appeal Record, requesting this Court direct the Court Clerk of Garvin County to supplement Appellant's appeal record with the certified documents from the McClain County Drug Court file. Appellant cites to this Court's Rule 3.11(B)(1), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2002) in support of this motion.

17 Finally, Appellant alleges that with the proliferation of Drug Court cases, where various judicial districts designate one county in the district to sponsor the Drug Court program for the entire county, "problems with compiling records for appeals of Drug Court terminations are certain to occur on a regular basis". Counsel requests this Court issue appropriate instructions to all parties involved on how the record in such cases should be compiled.

T8 On May 1, 2002, the Court Clerk of Garvin County filed a Notice of Non-Completion indicating the record in this appeal could not be completed because "the documents requested from the McClain County Drug Court are not filed in Garvin County Case File.... We do not have access to these records."

T9 The initial charge in this case was filed in Garvin County under Case No. CF-2000-61. Sentencing for this offense was delayed pending Appellant's participation in and completion of Drug Court. As noted by this Court in Hagar, Drug Court is a type of diversionary sentence, which expedites the criminal case and requires successful completion of the plea agreement in lieu of incarceration. Hagar v. State, 1999 OK CR 35, 17, 990 P.2d 894; 22 O.S Supp.1998, § 471.7(A). To the extent that a defendant's sentence is delayed pending his participation in Drug Court, these cases are comparable to situations where a defendant receives a deferred sentence. The termination of a defendant from Drug Court is analogous to an acceleration of a deferred sentence. Hagar, 1999 OK CR 35, ¶¶ 9-10, 990 P.2d 894. The consequence of the termination from Drug Court is to impose the sentence negotiated in the plea agreement. Hagar, 1999 OK CR 35, 11, 990 P.2d 894. The procedures and interests involved in both an acceleration of a deferred sentence and termination from Drug Court are similar, and a defendant has a right to appeal his termination from Drug Court just as he has a right to appeal the acceleration of his deferred sentence. Hagar, 1999 OK CR 35, ¶ 12, 990 P.2d 894.

1 10 In appealing from the acceleration of a deferred sentence, the application to accelerate is filed in the original court case from which the deferred sentence was issued, regardless of where the defendant is actually serving the terms of his probation. There is only one case file, and once the District Court has assumed jurisdiction of that matter, all proceedings relating to that matter are properly filed and resolved as part of the original case.

T11 Likewise, upon requesting that a defendant be terminated from Drug Court, the State's application to terminate should be filed in the original case from which the Drug Court assignment originated. That was not done in this case. The State apparently filed its application to terminate Appellant from Drug Court in McClain County, where the case had been assigned a new number, Case No. DC-00-8, instead of filing the application in Garvin County Case No. CF-2000-61. The termination hearing was conducted as part of the McClain County case file, and an order terminating Appellant from the Drug Court program was issued under that case number. It appears that the documentation and records filed in the Drug Court file were not made part of the original case file.

112 A reading of the Drug Court statute, as enacted, reveals the basis for the confusion in this matter. The Oklahoma Drug Court Act [Act] authorizes each district court of the State to establish a Drug Court program. 22 0.98.2001, § 471.1(B). It appears that the 21st Judicial District has established such a program, covering several counties, which is currently being administered through McClain County. In several places, the Act makes reference to the "drug court case file", the "originating criminal case file", "transfer" of a case from the Drug Court docket to the traditional eriminal docket, etc. The language implies that there is more than one case file, and therefore more than one case. There is not.

113 The original court proceeding charging a defendant with a Drug Court qualifying offense is the controlling case for purposes of the administration of a defendant's Drug Court program. Regardless of where the Drug Court portion of a defendant's sentence is being administered or monitored, there is only one original criminal proceeding. All proceedings, exclusive of the actual administration of a defendant's Drug Court program as provided in the Act, are to be processed through the original case file. 22 0.8.2001, § 471.7.

114 The problem occurred in this case when a second case was filed in McClain County Drug Court, creating a second "original" proceeding. While the Garvin County District Court is required to maintain a separate Drug Court file for purposes of administration of a defendant's program, there is no authority in the Act for filing a separate original proceeding when a defendant is admitted to a Drug Court program, even if that program is to be administered by a separate judge of the District Court within another county in the district 22 0.8.2001 §§ 471.1(E), (H), 471.7(D). The Drug Court judge is assigned to a particular case for purposes of monitoring and administering the program as part of the original eriminal proceeding. The Drug Court case is not assigned to the judge for initiation of a new proceeding.

15 With regard to Appellant's situation, it appears the appeal record problem in this case can be easily resolved. First, there is no original proceeding in MeClain County. This case originated in Garvin County. There is no separate McClain County original proceeding, nor should there be a separate MeClain County case file. Appellant's Drug Court file in MeClain County is simply an administrative file from the originating Garvin County eriminal case file, similar to the file maintained by a probation officer monitoring a defendant who has been given a deferred sentence. With regard to the ree-ords maintained in the MeClain County file , the Act provides that originating criminal case files, filed and processed in the traditional manner, shall be cross-referenced to a Drug Court case file by the court clerk, if the case is subsequently assigned to the Drug Court program. 22 0.8.2001, § 471.1(E). Appellant's original proceeding in Garvin County should have been cross-referenced to reflect that Appellant had been assigned to Drug Court for the district located in McClain County. It appears from the pleadings filed with this Court that no eross-referencing took place.

116 The Drug Court judge also makes a determination as to what information or pleadings are to be retained in the Drug Court file, which is closed to public inspection. The originating criminal case file remains open to public inspection. 22 0.8. 2001, § 471.1(E). It appears the purpose of this section is to allow the Drug Court judge to protect the confidentiality of the Drug Court participant, while providing an adequate file for continued monitoring, and if necessary, further prosecution, of a defendant's case. At a minimum, upon termination of a defendant from Drug Court, the Notice to Terminate defendant from Drug Court, the Application to Terminate defendant from Drug Court, and the Drug Court judge's order granting the request to terminate the defendant from Drug Court, should all be cross-referenced and made part of the original criminal case file. In addition, the "drug court file" should be returned to the county originating the criminal case file, in this case, Garvin County, because it is the county with jurisdiction over the criminal charges. We also find the Act gives the Drug Court judge sufficient latitude to specify for inclusion in the original case file any other information relevant to the defendant's termination from Drug Court. Consolidation and cross-referencing of the existing files in this case, as provided by statute, constitute the means by which Appellant's record problem should be resolved. The Drug Court judge is directed to cross-reference and consolidate the records from Appellant's McClain County Drug Court file with his original case filed in Garvin County Case No. CF-2000-61. Consolidation and cross-referencing of the two files makes Appellant's motion to supplement the appeal record MOOT, and the same is therefore DENIED.

117 We now address the appeal initiated in this case, and make several observations regarding the filings made in this matter. An appeal from a Drug Court termination is a separate and distinct appeal, to be addressed on its own merits. See, Hagar v. State, 1999 OK CR 85, 112, 990 P.2d 894. The procedure to be followed on appealing from a Drug Court termination is that for an appeal for a deferred judgment and sentence, as set out in Rule 1.2(D)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2002). Hagar, 1999 OK CR 35, 112, 990 P.2d 894. The Notice of Intent to Appeal filed in Appellant's case appears to be an appeal from the imposition of the ten (10) year sentence assessed in Case No. CF-2000-61, which is a separate appealable issue, distinct from the Drug Court Termination.

118 Although the application filed in this Court's Case No. RE-2002-242 designated the appeal as a revocation/acceleration, the appeal number, the information provided concerning the crime charged, the applicable statute, and the assessed sentence all refer to Case No. CF-2000-61, the case in which Appellant entered a guilty plea. However, it does not appear that an application to withdraw Appellant's guilty plea was filed in the District Court as a predicate to lodging a certiorari appeal. Likewise, the Designation of Record designates the record in Case No. CF-2000-61, listing for inclusion in the appeal record documents contained in Appellant's Drug Court case from MeClain County, Case No. DC-00-8. In his application requesting instructions, appellate counsel states that the appeal appears to be from the Garvin County conviction, but the Petition in Error filed in this case is for Appellant's Drug Court Termination. It appears that the Petition in Error filed by appellate counsel is in conflict with the Notice of Intent to Appeal filed by trial counsel.

T 19 Appellate counsel is directed to advise this Court of the nature of this appeal; whether the appeal is lodged from Appellant's plea of guilty and conviction in Case No. CF-2000-61 from the District Court of Garvin County or from his termination from Drug Court; and to file the appropriate doe-umentation resolving the conflict between the Notice of Intent to Appeal and the Petition in Error as currently filed with this Court. Counsel's response shall be filed within twenty (20) days of the date of this order.

T 20 The Clerk of this Court is directed to transmit a copy of this order to counsel of record, the District Court of Garvin County, and the District Court of MeClain County.

{21 IT IS SO ORDERED.

(22 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 24th day of June, 2002.

/s/ Gary L. Lumpkin GARY L. LUMPKIN, Presiding Judge

/s/ Charles A. Johnson CHARLES A. JOHNSON, Viee Presiding Judge

/s/ Charles S. Chapel CHARLES S. CHAPEL, Judge

/s) Reta M. Strubhar RETA M. STRUBHAR, Judge

/s/ Steve Lile STEVE LILE, Judge

      . It appears that the Drug Court performance contract, and the Order terminating Appellant from Drug Court were not made part of the record in Case No. CF-2000-61.

      . 22 0.9$.2001 §471.1(E). The Drug Court judge makes a determination as to what information or pleadings are to be retained in the Drug Court case file, which is closed to public inspection. The originating criminal case file remains open to public inspection.