Oklahoma Appeals - The Podcast

Episode 050: Oklahoma Appellate Courts 2024 Update #1

• Gabe Bass and Jana Knott • Season 4 • Episode 50

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Speaker 1:

Okay, welcome back podcast listeners to episode number 50, 5-0 of the pod. I'm here with Jana and we have a number of Oklahoma Supreme Court cases to cover, as we have not done an episode on new cases since the start of the year. Our last pod was an interview with the Chief Justice and now we're back to catch you up on the work of said Chief Justice and his fellow justices at the court. But before we dive right into that, jana wants to share a little bit of court news what's been happening over at 23rd and Lincoln.

Speaker 2:

Yeah, so we do have reasons for being a little bit tardy on our first episode of cases, which also relates to my court news. The court, back several weeks ago, held oral argument in two cases in the same day, one of which was mine, and so I've been preparing with our team for that case for quite some time, and so we had to sit the pot on the shelf for a few weeks while we got ready for that. But I think I don't have any evidence of this, but I think that the court having two arguments in one day is certainly historic for the court and maybe unprecedented, at least in recent history. So, again, like we've talked about the court, the current court seems to be interested in having oral arguments more regularly, and so March was no exception, and we'll see what the next few months bring.

Speaker 1:

Okay. Well, we anxiously await the decision in the case that you participated in recently, and we'll report that when it comes Okay in recently, and we'll report that when it comes Okay. Well, before we jump right into the cases, there was one other little bit of goings-on that I wanted to cover. The Attorney General issued an opinion on February the 6th to help the real estate practitioners across the state with some interpretation of the newly passed Title 60, section 121. I guess the amendments are newly passed Last fall this is the old citizenship affidavit changes that were imposed upon us by the legislature and which created a lot of heartburn as the 77 county clerks worked to implement the legislative directives.

Speaker 1:

There was a lot of gnashing of teeth and banging of heads as everyone tried to figure out what was required and which form of affidavit to use for which scenario, and it was a little crazy out there for folks filing instruments in the land records. But this attorney general opinion does provide some clarity. So if you have dealt with those issues then you'll want to take a look at this opinion. I think hopefully by now, since it's been out for a couple of months, the court clerks have all digested it and things have gotten a little smoother in the recording office, but just want to mention, want to mention that if you weren't aware of it, and with that then we'll jump into the first case of the year 2024 OK-1, which was decided back on January 30th and this was a workers'. It was decided back on January 30th and this was a workers' compensation case. So I'll just cover it fairly briefly, since that's kind of a particular practice area that doesn't apply to all of our listeners, or very many of them, quite possibly.

Speaker 2:

Who knows, maybe we are really popular with the workers' compensation bar. I don't know. I mean, if you're out there in practicing workers' comp and you listen to the pod, give us a shout out, shoot us an email.

Speaker 1:

Okay, there you go. If you want us to talk more about workers' compensation cases, then let us know. As if we can enlighten you, yes, and Jana will become our specialist. I think you participated in helping draft some opinions when you worked at the court. It was a busy time for workers' compensation it was.

Speaker 2:

I'd like to not revisit it if I don't have to, but I will. If we have a lot of workers' comp friends out there who need us to spend some more time on it, we'll be happy to do it.

Speaker 1:

Well, this case in particular was over the interpretation of a phrase, that phrase being subsequent employer, and Title 85A dealing with the Multiple Injury Trust Fund.

Speaker 1:

If I didn't say the name of the case, it's Strickland versus Multiple Injury Trust Fund, and I understand that the multiple injury trust fund is some type of pool of funds set aside to deal with workers injured in multiple different occurrences over a period of time, as was the case here with the plaintiff Strickland.

Speaker 1:

The subsequent employer language is important because the statute says that for an injured worker to be eligible for compensation from the multiple injury trust fund then they have to have some previously adjudicated injuries and then have a subsequent injury, and the commission's opinion was that subsequent injury had to have occurred with a different employer than the previous injuries. Supreme Court disagreed with this interpretation and held that the phrase subsequent employer, as used in Title 85A, refers to the employer at the time of the employee's subsequent injury, regardless of whether it is the same employer, was involved in a previous injury or is a different employer. So that's the result as a 5-3 decision. Justice Winchester did not vote and the three justices in the minority were the Chief Justice Kane, the Vice Chief Justice Rowe and Justice King. They dissented in this case and they did not write separately.

Speaker 2:

Okay, next up. 2024 OK-2, NRA Guardianship of LAC. This is an adult guardianship proceeding where the ward, after being diagnosed with various progressive degenerative diseases, executed an advanced directive instructing that her life not be extended by life-sustaining treatment, including artificially administered nutrition and hydration. As you can imagine, you might be able to guess where this is going. She's later hospitalized and a what they call PEG tube was inserted percutaneous endoscopic gastronomy tube which hydrates and feeds the ward.

Speaker 1:

That's pretty good yeah, breathing tube or a feeding?

Speaker 2:

Yeah. So the tube was inserted despite the terms of her advanced directive to provide artificially administered nutrition and hydration. So a guardianship proceeding ensues. It's siblings there's one sibling who wants the tube to remain in place and I believe, two other siblings who do not want the tube to remain in place and I believe two other siblings who do not want the tube to remain in place and want the court to follow the provisions of her advance directive. So they have a trial on whether the tube should remain in place and the trial judge here says that the ward did not revoke her advance directive and we are going to weigh that by clear and convincing standard of proof and that the placement of the feeding tube violated the express terms of the advanced directive. So one of the siblings appeals to the Court of Civil Appeals and the Court of Civil Appeals reverses and finds that the preponderance of the evidence standard is the proper standard to revoke an advance directive and under that standard the court concluded that the weight of the evidence showed that the ward had revoked her advance directive. There was a scenario, a situation, where several nurses visited with the ward. She wasn't able to speak, but the way she was communicating indicated to them that perhaps she didn't want the tube removed because now it was going to be pretty painful for her to have that removed.

Speaker 2:

So this comes up on a cert petition and in an opinion here from the Vice Chief Justice, justice Rowe. The court looks at two issues, the first of which is whether an incapacitated or incompetent person may revoke their advanced directive and whether the standard of proof required to do so is clear and convincing or preponderance of the evidence. So the court here says that under Title 63, which is what governs advanced directives, section 3101.6, an advanced directive may be revoked in whole or in part at any time and in any manner, without regard to the declarant's mental or physical condition. So the court says, according to this language the revocation should be independent of the declarant's mental or physical condition, that the act specifically does not place limitations on one's ability to revoke the advance directive. And so the phrase without regard to the declarant's mental or physical condition means an incapacitated or incompetent person does retain the legal right to revoke their advance directive. And so they held that the ward had the ability to revoke the directive even though she was under a guardianship and technically legally incapacitated. However the court says, because the statute requires.

Speaker 2:

We show great deference to the wishes of an individual as expressed in their advance directive. We find that a higher standard of proof is necessary to support the revocation of an advance directive, and so the court finds that clear and convincing evidence is required in order to revoke the advance directive. We have a couple of separate writings here, one from the Chief Justice. He writes and argues that the standard of review should be preponderance of the evidence, and one separate writing here from Justice Darby, who concurs in results and really, I think, just writes here to say that this is what advanced directives are for they are to prevent families from getting into this exact situation. So he thinks that the burden should be clear and convincing. And so he writes here to commend the trial court because the judge followed the law and followed the wishes of the ward in the advance directive. So that's that. The trial court's affirm Court of Civil Appeals opinion is vacated. Thoughts from the crowd.

Speaker 1:

Boy. Tough, tough cases for judges effectively deciding whether to pull the plug on someone or not.

Speaker 2:

And this one even more kind of difficult, because the tube had already been inserted. Right Part of the discussion and the communication. Trying to communicate with the ward was the difficulty of taking that out, the pain that she was likely going to feel in taking that out, and then also her knowing that when they took it out, you know the end was very near.

Speaker 1:

So yes, yeah, in a perfect world the tube would not have been inserted had the advanced directive been known about, which I guess highlights the need to have some means of healthcare facilities or hospitals knowing about the existence of your advanced directive, if you have one, I know. Generally my experience has been that is asked if you're going to have surgery or but yeah, I don't know, I don't have any. I guess it's good that it's been clarified that the right to revoke your advance directive survives your incapacity, legal incapacity, but that you must communicate that by clear and convincing evidence. But you could certainly see that there can be some difficult situations if you have someone who's incapacitated and whether or not they have shown by clear and convincing evidence that they want to revoke their advance directive. Yeah, yeah, yeah well, that's law all right.

Speaker 1:

Well, now let's talk about 2024 ok3. This is base versus devon energy production case Case decided on February 6th and this is a lease cancellation quiet title type of case. The dispute here was over whether a 1973 lease, which had a 1-8th royalty provision, or a 1978 lease, which had a 3-16th royalty provision, controlled royalty payments on a well actually nine wells that were drilled and began producing in 2017. So of course, the mineral owner was arguing that the 1978 lease with the higher royalty provision should control and the operator was arguing that the older lease with the lower royalty should control. Mineral owner brings this quiet title case trying to quiet their title in favor of the 1978 lease and Devin. The defendant files motion for summary judgment based on the 15-year statute of limitations and asserting that any action to quiet title in favor of the 1978 lease should have been brought in a later than 1994. The trial court granted the motion for summary judgment.

Speaker 1:

The Court of Civil Appeals confirmed Supreme Court takes the case. They vacate the Court of Civil Appeals' opinion but they affirm the trial court's decision for summary judgment. So they didn't like the opinion for some reason, but the result stands. The statute of limitations applies. We have a 15-year statute of limitation in 12 OS section 93.4, because this is an action for the recovery of real property and the court determined that the plaintiff's claim would have accrued no later than 1979 when another well began producing and the operator of that well started making payments under the 1973 lease. So it was at that time that the 15-year statute of limitations started to accrue and the case was filed in 2019, at which point it was barred.

Speaker 1:

This is an 8-1 decision. Let's see here the two justices, the vice chief Justice Rowe and Justice Keene, concur in the result but write separately to say they just don't like how the Supreme Court handled the case procedurally. They felt that if they liked the result that was achieved at the trial court and affirmed by the Court of Civil Appeals, they should have simply dismissed cert as improperly granted and designated the Court of Civil Appeals opinion for publication with precedential value.

Speaker 2:

Interesting. I mean it's a fair point to wonder what about the Court of Civil Appeals opinion? Was not sufficient here that the Supreme Court needed to write about it so interesting. 2024-04, jackson County Emergency Medical Service District versus Kirkland.

Speaker 2:

This involves an ambulance collision on a turnpike. I understand that the ambulance collided with the toll booth, injuring the toll worker in said booth. The lawsuit was filed by the injured toll worker against the ambulance driver and her employer, which is the Jackson County Emergency Medical Services District. The district sought to dismiss the lawsuit, arguing that it was entitled to governmental immunity and that the Governmental Tort Claims Act 51, os 155-14, subsection 14, which deals with workers' comp benefits already being applied, prohibited recovery because the toll worker had recovered those workers' compensation benefits. This was filed in Grady County and Judge Kirkland denied the dismissal. And this actually comes up on an application to assume original jurisdiction and petition for prohibition. Does the crowd know why? Procedurally this was the writ Denial of a motion to dismiss and not an appealable order Right? So you have a couple of options in that scenario. You can file a writ or you could ask the judge to certify their denial and try to get it up on an interlocutory as quickly as possible. Here the application to assume original jurisdiction works.

Speaker 2:

The court here, in an opinion from Justice Cogger, concludes that the Jackson County Emergency Medical Services District is entitled to governmental immunity under the Oklahoma Governmental Tort Claims Act.

Speaker 2:

It's kind of an interesting entity. The court says here that it's created by Article 10, section 9 of the Oklahoma Constitution and it's governed by a board of trustees. The district and the board of trustees are treated as one and the same and the board of trustees is the officers and governs the districts. I think that this is what decides this case. The court says section 9c of article 10 provides specifically that the board is immune from civil suit for actions or omissions arising from the operation of the district so long as and to the same extent as municipalities and counties within the state enjoy such immunity. So the court says they think that that language there pulls this particular hybrid entity in under the Governmental Tort Claims Act and because the injured toll worker had already received workers' compensation benefits, the recovery was precluded here against the medical district. So that is what I can tell you about that one Original jurisdiction assumed. The petition for writ of prohibition here is granted.

Speaker 1:

Well, that's somewhat a rarity in terms of them taking one of these on original and it ending up in a published opinion as well.

Speaker 2:

A lot of times, even if they grant these writs, it is not published and applies only to the parties. But I think that this is probably they don't specifically say it's a first impression question, but that's how the opinion reads. They cite a couple of AG opinions indicating that this court hasn't specifically said anything about these particular entities under the Governmental Tort Claims Act.

Speaker 1:

Okay, well, now we know All right. Next case is Brasfield v State 2024-OK-9, decided back on February 27th. This case deals with interpretation of the statute that governs the expungement of criminal records, title 22, section 18A and the issue here is whether an ongoing investigation into potential criminal charges constitutes quote unquote pending charges that would disqualify an applicant from an expungement. So here we have Brasfield seeking to expunge some items from his criminal record, expunged some items from his criminal record, and the OSBI objects to the application for expungement and alleges that there is an ongoing investigation into potential criminal charges that would require that the application be denied. The Supreme Court disagrees and says that an ongoing investigation into potential criminal charges does not equate to quote pending charges unquote under the expungement statute 7-2 decision and will be of interest to those folks who handle expungement cases.

Speaker 2:

Makes sense.

Speaker 1:

Seems to make sense to me.

Speaker 2:

Okay, and that's what matters right Whether it makes sense to us practically speaking.

Speaker 1:

Our own minds only.

Speaker 2:

Okay. Well, I guess I'm hitting the lotto on applications to assume original jurisdiction today in my round of cases. 2024-ok-10 is another application to assume original jurisdiction and this is the Board of County Commissioners of Muskogee County versus King, and here we have some type of dispute between the Board of County Commissioners of Muskogee County and the Buckhorn Fire Department.

Speaker 1:

Oh, the old Buckhorn Fire Department.

Speaker 2:

There is some type of dispute based on the pleadings. The application to assume original jurisdiction was a violence case. I perused it. Shout out to my buddy Randall Yates up there in Tulsa. You know success on an application to assume original jurisdiction here. Some issue regarding the funding of this fire department, and I'll leave it at that, and some votes that were issued by the county commissioners regarding said funding that the fire department did not like. So the fire department sponsors and circulates a grand jury petition to indict one of the commissioners and the county emergency services directors.

Speaker 2:

Wow, Lo and behold they gather 2,661 signatures to submit to the county election board and those signatures are certified. So there's a question here about the number of signatures that they have to have in order to impanel the grand jury. So that's what this comes down to and the court looks here. Let's see. Here's how we get to the answer in this question about whether this number is correct.

Speaker 2:

Article 2, section 18 of the Constitution is what talks about grand juries, and I'm certainly going to butcher this because this is a very specific issue. It says a grand jury can be convened by order of the district judge upon the filing of a petition, therefore signed by qualified electors of the county, equal to the number of signatures required to propose legislation by a county by initiative petition, as provided in Section 5 of Article 5 of the Oklahoma Constitution. So the court then goes to Article 5, section 5 of the Oklahoma Constitution to figure out okay, well, what is that number of signatures that we're looking for? And it says the requisite number of petitioners for the invocation of the initiative and referendum shall bear twice or double the ratio to the whole number of legal voters in such county or district as here provided thereof in the state at large. Then we got to make one more jump.

Speaker 2:

The number of signatures required to propose legislation via initiative for the state at large is in Article 5, section 2, which requires that the ratio and percent of legal voters here before stated shall be based upon the total number of votes cast at the last general election of the office of governor. Reading these constitutional provisions together, the correct calculation of the number of signatures required to impanel a grand jury is 16 percent of the numbers of votes cast in the county at the last general election for governor. So in 2022, when we voted for governor, there were 17,796 votes cast in Muskogee County. That means that you have to have 2,848 signatures to impanel a grand jury. So 2,848 is the number that was needed here and they only got 2,661. So several hundred signatures short to impanel the grand jury. Original jurisdiction is assumed. Writ of prohibition issued.

Speaker 1:

Interesting.

Speaker 2:

Okay, no author, done by Supreme Court and conference, and looks like everybody concurred except Justice Edmondson who did not participate. I mean, it's not something you see every day, so I wouldn't spend a lot of time on it if I were you.

Speaker 1:

Okay, I won't Okay. Next one Also we can probably deal with pretty quickly here. This is State Chamber of Oklahoma versus COBS 2024-OK-13, decided by the court back on March the 4th. This one involves a protest filed by the State Chamber against an initiative petition, that petition being number 446, which deals with minimum wage. The chamber sought to block the petition from moving forward, and the Supreme Court did not find that the petition clearly or manifestly violates either the Oklahoma or the United States Constitution and allows the petition to move forward to the signature gathering stage. That's about all there is to say about that one. If you are interested in the initiative petition process, I would suggest that you go all the way back to episode two of the pod, where we spent a whole episode talking about Oklahoma's initiative petition process and then followed it up a couple episodes later on episode four with Melanie Wilson-Rogani, whose practice includes a lot of initiative petition work. So if you want more background on this whole area of the law, those are two good resources for that.

Speaker 2:

Yeah, I mean, I think it's kind of interesting. This is a one-paragraph order from the court here. There's a petition for rehearing that was filed that was also denied, and I think part of the petition for rehearing was to ask for, you know, some additional guidance from the court here on why this is being allowed to move forward. But the court denied that and this is continuing to make its way through the initiative petition process.

Speaker 2:

Okay, 2024-ok-14, in the matter of EJT this is a termination of parental rights case. I'm not going to spend a ton of time on this here is whether a court minute memorializing a contemporaneous court proceeding is sufficient to support a party's oral consent to waiver of a jury trial in a parental termination proceeding and whether a party who proceeds to trial without any demand for a jury trial and without objecting to the non-jury trial has waived any right to said jury trial. Both questions are answered in the affirmative here by the Supreme Court in an opinion from Justice Edmondson wherein all justices concur. So I think the real question that the court was looking at here was whether the minute order that was entered satisfied the waiver of the jury trial, which allows waiver by quote oral consent in open court entered on the journal and the court says we think that a court minute entered from contemporaneous court proceedings satisfies the on the journal entered on the journal language of the statute.

Speaker 1:

So not to be confused with the court minute being an appealable order which also correct in much detail to educate us.

Speaker 2:

It is that is correct very clearly not an appealable order, but sufficient here to waive the jury trial.

Speaker 1:

Okay.

Speaker 2:

So you're aware, mother was represented by counsel. It looks like throughout this proceeding and the court talks about in paragraph 22, that there was no objection to the non-jury trial or demand of a jury trial, and so I think that probably is pretty important to the court's decision here.

Speaker 1:

Okay. Next case, a tragic one Brown v Dempster, 2024, ok-17. This case involves a drowning death of a five-year-old child and a suit against the property owner where the pool was located that the child drowned in. Facts are that this pool is located outside of any city limits. The property was not fenced, the pool itself was not fenced. The five-year-old child lived two doors down and apparently wandered over unsupervised and drowned in the swimming pool. The case was resolved at the trial court by summary judgment. The district court granted the property owner's motion for summary judgment that there was no premises liability in this case, that the attractive nuisance doctrine as a matter of law does not apply to swimming pools, and that is appealed. The Supreme Court affirms.

Speaker 1:

But there is some nuance that's worth talking a little bit about when it comes to premises liability and swimming pools. It was a 7-2 decision. However, four justices concurred specially and wrote separately. Four of them joined a special concurrence, which is a little. That's a lot, I think, of justices. So of the seven who affirmed the district court's grant of summary judgment to the property owner, four of them wanted to explain why they agreed with the result, but not necessarily all of the reasoning the majority opinion states as a matter of law that swimming pools and other artificial bodies of water are not attractive nuisances as a matter of law. And the four justices that concur especially write to say essentially they don't believe that there should be a blanket exclusion of swimming pools from the attractive nuisance rules, that the jury instructions on attractive nuisance are sufficient for a question of whether or not something is an attractive nuisance to go to the jury. So the case does get sent back though to the trial court, because the Supreme Court says that there is still the possibility of plain old premises liability in this case and that claim should have been allowed to proceed. So I think that was instrumental in why the four specially concurring justices were in the majority, because ultimately the case was going back to the trial court on plain vanilla premises liability grounds. Just briefly, an attractive nuisance is a nuisance that requires some hidden danger. That's beyond the inherent risks and that's what differentiates it from just a general premises liability type of claim.

Speaker 1:

The court also noted that in this case there was no possibility of negligence per se on the part of the landowner, because having the pool unfenced did not violate any statute, ordinance, rule or code provision. Again, this property was not inside of any city limits. So there was no ordinance or rule or code to say that a pool had to be fenced and there's nothing like that in the state statute. So there's no negligence at play here. So interesting case, again, tragic circumstances. But it is certainly of interest to plaintiff's attorneys in dealing with attractive nuisance cases and swimming pools. It seems to leave the door open a bit that you may get to attractive nuisance cases and swimming pools. It seems to leave the door open a bit that you may get to attractive nuisance even with a swimming pool, even though the majority opinion on its face seems to foreclose that. I'm not sure.

Speaker 2:

Maybe you can still get to liability Sure Despite the majority opinion. Maybe it's just an supremacist liability analysis as opposed to attractive nuisance.

Speaker 1:

Yeah, well, there's at least four justices on the court, as currently composed, that would prefer there not to be a blanket exclusion for swimming pools from the attractive nuisance doctrine. Okay, I think the next case is mine too. It's a case of very limited application, so we'll cover it briefly, and I have no idea how to pronounce the plaintiff's name Shwee S-C-H-I-E-W-E versus Cessna Aircraft Company, 2024 OK-9. Case decided on March 12th.

Speaker 1:

The plaintiffs filed a negligence lawsuit against Cessna Aircraft Company stemming from an airplane crash back in 2010 involving a Cessna 172 aircraft, and the plaintiffs argue that Cessna, the manufacturer of the airplane, was negligent because they failed to revise a service manual to include a new part and installation instructions, which the plaintiffs claimed led to the accident.

Speaker 1:

And the crux of the lawsuit was whether or not this alleged failure on the part of Cessna falls under the General Aviation Revitalization Act of 1994, which provides an 18-year statute of repose limiting civil actions against aircraft manufacturers. We've talked before on the pod about the difference between statute of limitations and a statute of repose. Statute of repose is essentially a complete bar based on time that you can't get around by any kind of tolling or things of that nature, as you might be able to with the statute of limitation, which is an affirmative defense. So statute of repose, complete bar and well. The aircraft accident occurred in 2010,. But the statute of repose in the General Aviation Revitalization Act of 1994 applies to Cessna in this case and the claim is time borrowed. All justices concur.

Speaker 2:

Wow, okay, interesting. Don't see many. All justices incur, although we did see another one today. But okay, 2024, okay 21. Hmm, sounds familiar. The saga continues with regard to the governor's authority to negotiate tribal compacts on behalf of the state. This too is an original proceeding Application to assume original jurisdiction and issue declaratory relief.

Speaker 1:

And this is a more traditional type of dispute that the court would invoke. That's the type of dispute that the court would invoke.

Speaker 2:

That's correct and specifically, yes, specifically, in the conclusion of this opinion, paragraph 32, vice Chief Justice Rowe, writing for the majority, tells us that original jurisdiction is assumed pursuant to this court's public high jurist doctrine.

Speaker 1:

Got to work some Latin in every episode.

Speaker 2:

It's a matter of public importance is how the court sees this case in granting original jurisdiction. There's a couple of questions that the court addresses in this case and not to get too far in the weeds If you're interested in getting in the weeds on this case, this was a case that the court held oral argument in. I think it was back in December. But those oral arguments are being archived currently on OSCN and we have been, I believe OSCN tells us that they will be archived for up to a year. So if you would like to learn more about the ins and outs of this case, I direct you to OSCN oral argument page.

Speaker 2:

The court addresses a couple of questions here. Whether the process by which the legislature passed two bills dealing with the governor's authority to negotiate compacts and I believe these compacts dealt specifically with tobacco and motor vehicle licensing and registration so the legislature called a special session to pass these bills at the same time that the regular session was being held. And the court finds here that nothing in the statutes or in the Constitution prevents the legislature from holding a concurrent special session with a regular session. So procedurally these were passed appropriately and the court then decides that the consideration of these two bills also did not exceed the call of the special session, of these two bills also did not exceed the call of the special session. The call of the special session was worded a little bit more broadly with regard to appropriation of funds for the annual state budget and legislation related to implementing and administering budget-related funds. The court here says that if these two bills are not passed so that these compacts continue, there would be a significant decrease in state revenue, thereby impacting the state budget. And so they say, at the very least indirectly falls within the subject matter stated in the call for the special session.

Speaker 2:

And the court also looks at whether the governor's authority to negotiate and enter into compacts with tribes is vested by state statute or vested by the Constitution. And the court here, looking at language in the Constitution that says the governor shall conduct the state's quote intercourse and business with other states and with the United States end quote the court points out that does not specifically include tribes, include tribes. And so they conclude here that the legislature, through state statute, is where the governor gets the authority to negotiate these particular compacts the tobacco and motor vehicle compacts, title 68 and Title 74. And finally, the court concludes here the passage of these two bills which, by the way, the governor vetoed, and then the legislature overrode the veto that the passage of these two bills did not infringe on the governor's statutory authority found in Title 74 and Title 68 to negotiate with the tribes on these particular compacts. The court here specifically holds that the legislature had the constitutional authority to consider Senate Bill 26X and HB 1005X during a concurrent special session. They did not exceed the call of the special session and the governor's authority to negotiate tribal compacts is statutory, not constitutional, and no infringement on the governor's statutory authority to negotiate and enter into those tribal compacts.

Speaker 2:

We have a separate writing here from Justice Keene who concurs in part and dissents in part. She disagrees with the majority's approval of what she terms quote legislative meddling in a valid ongoing delegation of authority. Right End quote. She says I find, quote no basis for concluding that it may tinker with that authority while it is still in the governor's hands. So there you go Original jurisdiction assumed but declaratory relief denied here.

Speaker 1:

Okay, well, continuing the theme of governmental entities fighting amongst themselves, the next case is Independent School District number 52 of Oklahoma County versus Walters, who you will recognize as the head of the State Board of Education 23.

Speaker 1:

This case decided on April, the 2nd of this year, and involves a number of school districts in addition to the one in the case style. The plaintiffs in the case represent school districts from Midwest City, dell City, enid, ponca City and Oklahoma City and they are seeking mandamus relief to compel the Oklahoma State Board of Education to recover and redistribute state aid funds which they allege were miscalculated and improperly distributed between 2004 and 2014. Basically, these school districts are saying hey, during this 10-year period ending in 2014, the state board messed up the calculation for the distribution of state aid funds and we were under-allocated and we want our money. The State Board of Education counters that, basically, too late to make this argument. And because it's too late, the school districts that are seeking this relief lack standing and we are directed towards Article 5, section 55 of the Oklahoma Constitution Section 55 of the Oklahoma Constitution which contains a 30-month period for complaining about appropriations, and that period had already elapsed, or lapsed rather, by the time these school districts commenced this action in September of 2016.

Speaker 2:

So here we are, almost eight years later, resolving this issue.

Speaker 1:

The wheels of justice turn slowly, apparently. I have no idea what the procedural history is here, but the bottom line is they waited too long to bring this claim. The distribution of state aid funds was part of an appropriation process and the Constitution says after 30 months, no take backs on appropriations. So because the time to challenge the appropriations has lapsed, the districts had no legally cognizable, agreed interest to compel the redistribution of these funds, and they are sent packing.

Speaker 2:

Hit the road, jack. Okay, you can chime in on this next one because I didn't get to spend a ton of time on it, but I think it's important for all of our friends out there asking for attorney's fees in a case. You might want to take a look at this one At some point or another. If you litigate cases, that's going to be you. 2024 OK-25 Legg v Landmark Construction Group.

Speaker 2:

This is an opinion from Justice Cogger and this case had damages, I believe, in the nature of about $2,700 originally and goes up on appeal, comes back down, there's a motion for attorney's fees that's filed and the district court there was about what? $65,000 costs and $51,331 in attorney's fees and the order states that there's no dispute that the hourly rate of defense counsel is reasonable. There's no dispute that the application should be reviewed under a lodestar analysis. No dispute that the application should be reviewed under a lodestar analysis. The case had somewhat of a tortuous road to its conclusion, having been heard by two trial judges and having been appealed twice. The complexity and hard-fought nature of the case should not be diminished by the claimed amount in dispute, as evidenced by the length and nature of the proceedings, which included a combined 41 pages of opinions to lead to this point. The parties further stated that they were not requesting a detailed analysis in order but rather just wanted a quote number.

Speaker 2:

Not so fast, says Justice auger. This is reversed and three-manded proceedings consistent with this opinion. And the court here says that a trial court order awarding attorney's fees must set forth with specificity the facts and computation to support the award. The trial court must make findings of fact, incorporated into the record, regarding the hours spent, reasonable hourly rates and the value placed on additional factors in each case. And it doesn't matter if the parties request a simple order with no analysis. That's not going to suffice. The just give them a number doesn't alleviate the trial court of its duty.

Speaker 1:

Yeah, that was interesting that the Supreme Court says in the opinion that they took this case to provide trial courts with guidance on what needs to be included in an order for attorney's fees and that you know that specifically needs to make findings of facts regarding the hourly rate, any factors considered in enhancing an award, et cetera, and the computation. Like they basically are saying show your work, I think.

Speaker 2:

They are. They're saying show your work, or I mean it's an abuse of discretion if it comes up on appeal. I mean that's specifically the standard that they look at here. Failure to make findings of fact and incorporate them into the record following this court's decision in Burke is an abuse of discretion ultimately results in a published opinion from the Supreme Court and some guidance for trial courts.

Speaker 1:

It's a bit of a tragedy that it ended up. The parties ended up litigating the issue for so long. The underlying facts were that the plaintiff in this case bought a home. The home had had the roof repaired before closing, so the roofing contractor's contract is with the prior owner not the plaintiff in this case and the warranty did not transfer to a subsequent owner. Despite that fact, the subsequent owner of the home sues the roofing contractor over about $2,000 of damage and at the end of the day, the trial court order that went up on appeal awarded the roofing contractor over $50,000 in fees. So here you had, this subsequent homeowner, on perhaps a tenuous theory, suing the prior owner's roofing contractor over a couple thousand dollars, and now they're potentially stuck with over $50,000 in attorney's fees. So this is one of those good object lessons for those clients that argue about it being. It's the principle of the matter and just move on with the $2,000.

Speaker 2:

I mean, I think it's a good case also to demonstrate that at least this current court appears to be concerned in flagging cases where the amount in dispute is very small and the attorney's fee award in comparison is very large. So yes, keep that in mind no-transcript.

Speaker 1:

So not only are they potentially gonna pay over $50,000 of the defendant's fees, they apparently incurred at least 30,000 of their own over a couple thousand dollars in damage. Man. Well, okay, I think that takes us to the finish line and catches everyone up with all the cases that have come out as of today, april the 15th.

Speaker 2:

Tax day.

Speaker 1:

Tax day.

Speaker 2:

We got the episode in before taxes were due. That should mean something, right.

Speaker 1:

Yeah, you got to run to the post office and postmark on your tax return. Okay, well, until next time.

Speaker 2:

Hey, do you want to say something about our CLE?

Speaker 1:

Oh, okay. So if you like listening to these episodes and you would like to get CLE for it, we now have an option for you to do so. We have five CLE courses that are broken down by practice area, covering all of the opinions from the Oklahoma Supreme Court from 2023. So you can go to OklahomaCLEcom and enroll in one of those courses and get CLE credit staying up to date on Supreme Court's opinions.

Speaker 2:

That's right, and we're going to be visiting the OBA's Trusted Estate Planning section of the bar on April the 30th for a CLE on pre-intermitted heirs.

Speaker 1:

Oh boy, yeah, working on that now and that probably will eventually be a course that will be available to purchase at some point in the future as well.

Speaker 2:

And I promise that it will be more than just us ranting about the pre-terminated air statute. There will be some of that, probably, but we will also try to provide some analysis and guidance to practitioners who are dealing with this issue day-to day estate planning, probate et cetera. So if you're bored, need some CLE. We'll be moonlighting at the OBA trust and estate planning section.

Speaker 1:

All right, then. With that, it's a wrap. Until next time, bye, bye. Hi everyone, this is Gabe again. To find show notes, contact the host and more, go to OklahomaAppealscom. Also, if you're interested in the things we cover on this show, then you should follow us on Twitter at Oklahoma Appeals, where we post court news and other items of interest for Oklahoma lawyers. Okay, janet and I will be back with a new episode every other Wednesday, so until next time, bye-bye.