*1 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE 13th THIS Oklahoma, STATE of ex rel. OKLA DAY OF JULY 1992. ASSOCIATION, BAR HOMA Complainant, HODGES, V.C.J., LAVENDER, HARGRAVE, WILSON, KAUGER, ALMA WATT, JJ., SUMMERS concur. GASAWAY, Respondent. Don E. SIMMS, J., disqualified. OBAD No. 1033. SCBD No. 3776.
Supreme Court of Oklahoma.
July
ORDER Hough David HOUGH Oilfield d/b/a OPALA, Chief Justice. Service, Appellee, The Bar Oklahoma Association filed an application requesting this Court to issue an LEONARD, Burke, Daniel Harold E. compelling Respondent order to show McMillan, Appellants. and David why suspended cause he should not be practice of law under The Rules Govern- No. 75755. 6.2A, ing Disciplinary Proceedings, Rule Court Oklahoma. Emergency Suspension Interim Orders and Related Relief. In the Matter Sept. Application the Oklahoma Bar Associa- Sept. As Corrected Governing tion to amend the Rules Disci- plinary Proceedings, No. SCBD (Order 18, 1992), (April
O.B.J. 1992). April Court on application Re-
The verified was served on
spondent by application mail. The certified
alleges Respondent’s practice po- of law an immediate threat of
ses substantial Respondent
irreparable public harm and that commingled hun-
has converted or over one of client funds and has
dred thousand dollars
engaged involving in fraud all several therein Respondent on several occasions.
clients application
was ordered to answer subject why he should not be
show cause suspension. Respondent has
an interim responded to the Court’s show cause
order. Gasaway, E. here- Respondent, Don practice pend-
by suspended of law Re-
ing the resolution of SCBD No. 3776.
spondent give notice to affected written comply Rule 9.1 of and otherwise
clients Governing Disciplinary Proceed-
the Rules order.
ings days ten of the date this within *3 Couch, Stillwater, Jr., appel- for
John R. lants. Lorance, Pilgrim Joy
Jessie C. V. Tulsa, appellee.
KAUGER, Justice: only issue addressed1 is whether the properly trial court exercised over the three Texas residents entered an into contract Oklahoma with Okla- perform homa resident to services Kansas. However, We find that it did. we also find question appellate that we must address a procedure litigants to ensure that all are equitably properly treated and that all issues preserved, appeal raised briefed on are Wade, addressed. Johnson v. (Okla.1982), hereby overruled to the provides any party, extent that it wheth- er Ap- “winner” or “loser” the Court of peals, for certiorari to ensure appeal. review of issues raised and briefed on 3.15,12 O.S.1991, 3.14 Rules 3, Rules on Practice and Procedure in the Appeals Court of and on Certiorari to that hereby revised to include lan- guage providing presented that issues not for certiorari will not be consid- Provided, ered Court. how- ever, if Appeals the Court of did not decide paperwork ap- Appeals 1. The certiorari also contains for determination of the ade quacy pellani/non-residents' motion to tax costs and of the instructions. This issue was request attorney’s fees. This motion was filed appeal, briefed on but it was not addressed Appeals opinion promul- was after the Court Athey Bingham, that tribunal. gated. today, our decision the non-resi- Under (Okla.1991) 350-51 and discussion and accom prevailing parties dents are not entitled to the footnotes, 445-46, panying pp. infra. At the attorney award of costs and fees. 12 O.S.1991 time, same should consider 929; 928; § § § 12 O.S.1991 12 O.S.1991 936. counter-appeal request the Oklahoma resident's ing attorney a review Other issues to be determined are not reviewable of the trial court's fee Court. The cause is remanded to the in this award. telephoned agent for the non-residents4 preserved and briefed all of issues, Texas, asking it may Hough quotation from for a Court —should Appeals— of the Court of Hough’s provide vacate rates further services.5 or it such undecided matters address quotations faxed The Oklahoma resident his remand the cause to the again days A later to Texas. few McMillan These such issues. that Court address Oklahoma; telephoned Hough, in and the prospec- apply to this cause and rules shall Hough a contract parties entered into thirty petitions tively to all for certiorari filed attempt packer the Kan- removal of the (BO)days publication in the Okla- after final sas well. Bar Journal.2 homa day operation, dispute the fourth
On parties to whether arose between as *4 FACTS daily rate Hough employed was based on a Leonard, appellants, David Harold this agreement.6 The fixed fee As a result of or a (Leon- Burke, and David McMillan Hough job retrieving dispute, left the without non-residents) are ard/Burke/McMillan/the packer. The resident con- the Oklahoma gas The engaged in oil and business. the completing prohibited that he was tends Hough (Hough/the David appellee, Oklahoma job not to the because McMillan threatened resident) operates field ser- owns and an oil him to pay him and ordered leave. Subse- company in The oil well vice Oklahoma. pay to for the quently, McMillan refused dispute in this is located in Kansas involved by Hough. performed The non-resi- services just border. across the Oklahoma-Kansas then at least other Okla- dents contacted two well, operator of the and Leonard the to on homa firms ask about further services Burke and McMillan are investors. McMil- the Kansas well. in lan also has recorded leasehold interests County, property in Lincoln Okla- certain Hough brought suit in Oklahoma homa.3 payment recover the non-residents to objected al- his services. The non-residents in preparing production well for the While subject leging they personal that to were lodged in temporary packer a became jurisdiction A writ the Oklahoma courts. formation, pipe production above the sought in and it prohibition was this many production making impossible. After trial, was was denied. After a a verdict attempts by firms to unsuccessful Kansas in resident.7 returned favor of the Oklahoma packer, hired remove non-residents Temporary Panel XLVII the Court company attempt removal. an Oklahoma reversed, holding that Oklahoma Hough employed the Oklahoma was person- lacked sufficient contacts maintain a This effort company as subcontractor. jurisdiction We al over the non-residents. In the unplug the well was unsuccessful. 26,1993, 1989, McMillan, April to deter- acting granted as certiorari on May, last week Smith, dispute purpose over of the Following example 5. There is further of Cox v. telephone resident (Okla.1984), initial call. has revised this Court request O.S.1991, a that McMillan contacted him asserts today Rules and 3.14 and service to work on statement labor rates in App. Rules on Practice that the well. The non-residents contend Court. Certiorari to that and on purpose to find the location of call was out body appears of the text of these rules Hough packer that to re- offered stuck p. They also be opinion, see infra. packer well. trieve Bar Journal. published in the Oklahoma the fixed fee The non-residents assert that working at least 5 interest in owns a 3. McMillan turnkey agreement where agreement awas County gas and receives in Lincoln wells oil Hough would all materials and undertake furnish per year from interest. $200.00 about price. perform a all the work for fixed $14,580.00 acting damages as an award in undisputed McMillan was 7. The included It is interest, costs, $8,021.74 pre-judgment respect to their Burke in agent Leonard and attorneys’ fees. well. Kansas interest America, holding mine whether the trial court exer- Volkswagen Fields v. jurisdiction cised over the non-residents. Inc., (Okla.1976), statute, long-arm intent of the Oklahoma I. jurisdiction to extend the of Oklahoma courts permit over non-residents to the outer limits THE BECAUSE OF TOTALITY OF ted the Oklahoma Constitution8 and OKLAHOMA, CONTACTS WITH PER- the due clause9 the United States EXER- SONAL JURISDICTION WAS Constitution.10 When non-resident deliber THE CISED PROPERLY OYER NON- ately engages significant OKLAHOMA RESIDENTS. activities continuing obligations forum state or creates argues The Oklahoma resident between the non-resident and the residents personal Oklahoma can assert forum, of the the non-resident submits to the physi over a non-resident defendant absent presence the state.11 Jurisdiction person cal of the in Oklahoma. The prior non-residents insist that decisions of merely not be avoided because the non-resi Hough’s support position this Court which physically dent did not enter the forum state. and, distinguishable on their facts there long-arm Jurisdiction under the statute is fore, inapplicable. predicated foreign activity state *5 results forum state harm.12 A non-resi long-arm The current Oklahoma purposefully dent who has directed activities 2004(F) § provides statute 12 O.S.1991 that present compelling at forum residents must a may jurisdic “A court of this state exercise jurisdiction ease that would be unreasona any tion on basis consistent with the Consti ble,13 insignifi or that the contacts were so tution of this state and the Constitution of juris- the United It is a codification of our personam States.” cant that the exercise of in Const, 2, suit; provides: § process 8. The 2 Okla. art. related to due was not violated jurisdiction. process exercise of the Due life, does persons right "All have the inherent to necessarily require not states to adhere to un liberty, pursuit happiness, enjoy- and the bending jurisdiction.); Burg territorial limits on gains industry.” ment of the of their own Rudzewicz, 462, 475-77, King Corp. er v. 471 U.S. Const, provides § perti- 9. U.S. amend. 1 2174, 2184-85, 105 S.Ct. 85 L.Ed.2d 543-44 part: nent (1985). activity The unilateral of the resident is any enough personal jurisdiction "... No state shall make or enforce law not to exercise over Denckla, abridge privileges which shall or immuni- a non-resident. Hansen v. 357 U.S. States; 1228, 1239, ties of citizens of the United nor shall 78 S.Ct. 2 L.E.2d life, any any person liberty, deprive Bldg. Components State or 1298 Architectural deny (Okla.1974). any person Comfort, Corp. within its 310 equal protection Foreseeability causing injury of the laws.” an to another jurisdic state alone is not sufficient to establish Inc., Volkswagen 10. Fields v. America foreseeability tion. The that is critical due interpretation 52 involved the of 12 process analysis is that the defendant's conduct 1701.03(a)(4) provides § per- O.S.1971 and connection with the forum state is such that part: tinent person reasonably anticipate being should "(a) may personal jurisdiction A court exercise Volkswagen hailed into court there. World-Wide person directly agent, over a who acts or Woodson, 286, 296-97, Corp. v. 444 U.S. 100 as to a cause of action or claim for relief 559, 566-67, S.Ct. However, 62 L.Ed.2d 501 arising person's: generally a state has a manifest inter (4) causing injury ... tortious in this state providing est"in its residents with a convenient an act or omission outside this state if he redressing injuries forum for inflicted out-of- regularly engages or or does solicits business long state actors. So as it creates a substantial conduct, any pertinent other course of forum, single connection with the even a act can goods derived substantial revenue from used support jurisdiction. McGeev. International Life or consumed or services rendered in this state Co., 220, 223, 199, 201, Ins. 78 S.Ct. L.Ed.2d California, Superior 11. Burnham v. Inc., Volkswagen 12. Fields v. America see note 604, 609-10, 2105, 2109-10, U.S. 110 S.Ct. 52, supra. 10 at (1990) (California court had L.Ed.2d 638-39 personal jurisdiction in divorce action over New Rudzewicz, Jersey process Burger King Corp. resident who was served with see note supra. temporarily in while California for activities un- quotation specifica- phone request a offend the traditional notions diction would justice play.14 fair substantial tions of materials. our The contends that Oklahoma resident The non-residents counter that Anderson Greg precedents as enunciated (10th Shiflett, 435 F.2d Cir. (Okla.1976); Grove, ory v. P.2d Martin, 1971), Corp. Crescent P.2d Yankee Prod. Co. v. District Metal (Okla.1968), support their assertion (Okla.1974); B.K. that Oklahoma lacks minimum contacts to Co.,
Sweeney Co. v. Colorado Interstate Gas personal jurisdiction exercise over the non (Okla.1967), controlling. are activity residents. Whether defen Gregory, totality In held that a of con we adequately dant satisfies due de tacts defendants and between non-resident upon However, pends facts of the case.15 to be Oklahoma are considered determin may rely find that the sufficiency jurisdiction we non-residents not ing the exercise cases, they factually long-arm under include on these because service—this telephone In communications and letters. distinguishable. Sweeney recognized: B.K that the we Crescent, In an Oklahoma resident entered multiple within state are absence of acts employment consulting into an contract for necessarily fatal to the exercise of state corporation services with a not licensed or defendant; power over a non-resident doing business in Oklahoma. Oklahoma did in a act or engages single consummates not have because the facts al- single foreign transaction in a state could leged in the damages record were insufficient to sus- arising to suit out
be amenable transaction; jurisdiction. exists no silent there tain record was as to holding constitutional barrier to a non-resi made, employment was where contract subject personal jurisdiction, irre dent performed. accepted, or to be Crescent spective contacts in the of whether additional a party Court refused to infer facts that *6 state exist. allege jurisdiction. failed to in order assert Here, supports juris- also on Yan- the record assertion Oklahoma resident relies proposition kee Prod. Co. for the Metal diction over the non-residents. actively participates a non-resident when Anderson, In a Texas resident hired an negotiations the and initiates contact with plans pro- Oklahoma architect draw a state, forum minimum contacts are satisfied. ject. The was made in and contract Texas personal jurisdic- The Yankee Court found projects only located in covered Texas. The only tion a whose contact over non-resident was the architect Oklahoma contact through telephone with Oklahoma was and plans some of the at his Oklahoma drew mail communications. non-resident jurisdiction by tele- Oklahoma over made initial contact with Oklahoma office.16 lacked 408, 418, 1868, 1874, Hall, Washington, 326 466 S.Ct. Shoe Co. v. U.S. 104 International 404, 158, 95, 310, 316, 154, 80 L.Ed.2d 413 to the facts of this U.S. 66 S.Ct. 90 L.Ed. Anderson, provided In the case. contract Yery Yery, 161 A.L.R. 1061 place principle of business of the the laws the (Okla.1981); 361 Curtis v. CIA govern. Inc., architect were to It is unclear from the Machinery (Okla.App. facts, but inferred that the architect had Heitner, can be in 1977). also, Shaffer Texas; principal place and an office his 206-07, 97 S.Ct. L.Ed.2d Premier, In business was in Texas. Colorado did (1977) (All jurisdiction, of state assertions party only over not have a whose including quasi-in rem in rem and actions with the forum state was contact according to the minimum contacts evaluated provision in the contract. The non- incidental standard.). purchasing a resident entered into cattle provision Co, in which a al- maintenance contract Benguet Mining 15. Perkins v. Consol. anywhere, the cattle to be maintained lowed L.Ed. U.S. S.Ct. Subse- without direction non-resident. kept cattle quently, do; of the were Colora- some Ap jurisdiction. the Temporary Panel XLVII of tried and the state to assert initiated, Here, erroneously Shiflett, negotiated, peals analogized Anderson v. the non-resident Cir.1971); (10th with an Premier entered into the contract in Oklahoma F.2d Oklahoman, Newsom, (10th Corp. of Oklahoma is Cir. therefore interest 620 F.2d 1980); Helicópteros Helicopteros significant. Nacionales De Colom- Nacionales De Colombia single contact, the service contract because it was a initiated the the non-residents could isolated transaction which involved the uni- have refused to enter into a contract and activity thereby lateral of the Oklahoman. defending alleviated the risk of a suit
commenced
Oklahoma.20 McMillan also
has recorded leasehold
Here,
interests
Oklahoma
the non-residents have made
on
protect
relies
Oklahoma law to
necessary
minimum
his
contacts with Oklah
firms,
Finally,
interest
in those leases.
exhausting
oma.17 After
after deal-
Kansas
ing
Hough,
company,
the non-residents
non-residents hired an Oklahoma
contacted
subcontractor,
Hough
companies
at least
two more
was a
to work
inquire
Although
disputed
providing
on the well.
it
about
whether
services on the Kan-
Hough
pur
the non-residents called
for the
sas well. While each individual contact made
advice,
pose
obtaining
quotations,
and ser
the non-residents
not be sufficient
well,
standing
vices
the Kansas
returned a
maintaining
alone to
minimum con-
tacts,
in Hough’s
disputed
totality
verdict
favor.18 It is not
of the
contacts
suffi-
that a
personal
contract was entered into over the
cient
to exercise
over
non-residents;21
telephone
Regardless
in Oklahoma.19
of who
Hall,
note, supra,
price
payment,
bia v.
see this
involved a state’s
and condition of
contacts were
attempt
personal jurisdiction
to assert
over
personal
jurisdiction.).
sufficient
to maintain
non-resident not related to the
Here,
see,
cause of action.
But
Rambo v. American Southern Ins.
significant
the non-residents maintained
(10th Cir.1988).
839 F.2d
The Court
contacts with Oklahoma in relation to services
telephone
found that
calls and letters from a non-
for the
well.
Kansas
resident insurer did not establish minimum con-
Rambo,
plaintiffs,
tacts with Oklahoma.
In
Hall,
Helicópteros Nacionales De Colombia v.
see
residents, purchased
Alabama
automobile insur-
note, supra,
upon by
is also relied
the dis-
through Georgia corporation. They
ance
then
Helicópteros
distinguishable
sent.
moved to Texas and their automobile was stolen
presented
important respects:
facts
here in two
here,
1)
in California. After the insurance claim
was
non-residents initiated contacts with
filed,
Helicópteros,
plaintiffs
the Oklahoma resident—in
moved
contacts
to Oklahoma and filed
resident;
2)
Here,
were initiated
Georgia corporation.
the Texas
suit
sought
actually
business
to be conducted is
locat-
Hough
throughout
was an Oklahoma resident
his
ed in Oklahoma in the instant cause—in Heli-
dealings with the non-residents.
cópteros,
place
there was no
of business or ser-
agent
vice
in Texas.
See,
Corp.
Continental American
v. Camera
*7
Corp.,
supra.
Controls
see note 19 at
Non-
Rudzewicz,
Burger King Corp.
see note
purchase
resident could have refused to make a
supra.
corporation
principal
A
with
offices
thereby
from resident and
alleviated the risk of
operations throughout
Miami and franchise
defending a suit in Kansas.
brought
United States
an action in Florida
franchisees,
against two of its
who were Michi-
Grove,
Gregory
(Okla.
gan
per-
residents. Florida courts could assert
1976);
Inc.,
Fidelity
non-residents,
Bank
v.N.A. Standard Indus.
sonal
over the
because
(Okla.1973). Moreover,
they
continuing
had established a
substantial
we
relationship
headquarters.
say
with the Miami
This
cannot
that the non-residents will be serious
through
contact with the forum state
ly
course of
by having
inconvenienced
to defend the action
dealing
put
and contract documents
the non-
Washington,
in this state.
International Shoe v.
they
residents on fair notice that
would be sub-
319-320,
see note
at
U.S.
66 S.Ct. at
ject
the forum
state.
159-160,
104, supra. Although
90 L.Ed. at
con
controlling,
venience is not
it is a factor to con
discussion,
Woodson,
supra.
18. See
VolkswagenCorp.
note
sider. World-Wide
293-296,
see note
at
U.S.
propriety of FOR refusing others. Because the Court THE PETITION 3.14 RULE minimum contacts on the reversed CERTIORARI —CONTENTS issue, questions re- it did not address for certiorari shall be application A. An The non-residents garding jury instructions. only shall contain the by petition Appeals’ opin- prevailed under the Court here in the order following to be set forth petition for certiorari nor They did not ion. indicated: they the instructions issue address did the reasons for review ... An outline of resident’s response to the Oklahoma their expressed suggested in Rule as petition for certiorari. of the case but terms and circumstances interpreted Rule Generally, has this Court unnecessary detail. The state- without to those limiting “reviewable issues” 3.15 as question presented will ment of a certiorari or issues raised every subsidiary ques- include deemed to However, the rule .is response thereto. fairly comprised therein. tion *8 misleading ap ambiguous potentially and incongru It is somewhat pellate advocates. 3.15, O.S.1991, App. Ch. Revised Rule party petition require prevailing ous to Procedure in the Practice and in Rules on inequity exists Because for certiorari. to that on Certiorari Appeals and Appeals’ opinions Court causes in which Court final Court, thirty days after effective resulting in in that “winners” are vacated Bar Journal in the Oklahoma publication if all becoming in this one “losers” Court provide: in the raised and briefed properly Ap- (Okla), Court of Wade, petition to review for certiorari 22. Johnson provides peals will not be considered.” specifically that: decision Lawton, However, Handy City "Any party this Court to review who desires any por- Appeals, (Okla.1992); Athey Bingham, of the Court decision see and thereof, or "loser” in the he he "winner” tion remanded to the supra, causes were note petition Appeals for rehear- and must Court of assignments adjudication of Appeals Court Appeals ing and must in the Court of remaining unreviewed. of error Issues not raised Court for certiorari. opinion Appeals of the Court of RULE 3.15 ORDER GRANTING CER- —address TIORARI may such undecided matters or it remand Appeals the cause to the Court of for that A. When a for writ of certiorari Court to address such issues. Ap- to review a decision of the Court of peals granted, an order shall be entered opin- The trial court is not affirmed. The presented to that effect. Issues not in the vacated; Appeals ion of the Court petition for certiorari will be consid- the cause is for a remanded decision of the Provided, Supreme ered Court. appeal errors asserted in the brief on relat- however, if Appeals did not ing given to the instructions and those properly preserved decide all of the denied.26 issues, Supreme may— briefed Court CERTIORARI PREVIOUSLY GRANT- should it vacate the of the Court of ED; COURT OF APPEALS OPINION Appeals such undecided matters —address VACATED; CAUSE REMANDED TO or it remand the cause to the Court of THE COURT OF IN- APPEALS WITH Appeals for that Court to address such STRUCTIONS. issues.... LAVENDER, V.C.J., HARGRAVE, CONCLUSION SUMMERS, JJ., ALMA WILSON and signifi- The non-residents have maintained concur. regarding
cant contacts with Oklahoma ser- They vices the Kansas well. initiated SIMMS, J., II, part concurs in dissents to negotiated contact a contract tele- part I. phone in Oklahoma with an Oklahoman. HODGES, C.J., WATT, and OPALA and upon McMillan pro- relies Oklahoma law to JJ., part concur in part. and dissent in property Oklahoma, tect his interest in upon non-residents have called the ser- HODGES, Justice, Chief with whom vices of other Oklahoma firms connection SIMMS, J., joins, concurring in part and totality with Kansas well. Because the of dissenting part: the contacts with Oklahoma are sufficient to respectfully I majority’s dissent to the res- contacts, meet the definition of minimum jurisdiction. olution of the issue of properly personal juris- trial court exercised jurisdiction, As to the issue of in Hanson diction over the non-residents. Denckla, S.Ct. Const, 5, § preserves The Okla. art. (1958), page L.Ed.2d 1283 at 78 S.Ct. at equality similarly between citizens who are pages 1239-40 the United States Today, part situated.24 we overrule John following Court set out the rule: Wade, (Okla.1982) son v. activity The unilateral of those who claim 3.15, O.S.1991, and revise Rules 3.14 and relationship some with a nonresident de- Rules on Practice and Proce satisfy requirement fendant cannot dure in the and on Certio- contact applica- with the forum State. The rari to that to ensure that result. vary tion of that rule quality will with the After the promul effective date of the rules and nature of activity, the defendant’s but gated published herein and in the Oklahoma it is essential in each case that there be Journal,25 Bar presented issues not purpose- some act which the defendant petition for certiorari will not be considered fully privilege avails itself of the Provided, of con- however, Court. ducting State, activities if the forum did not decide all of issues, invoking preserved protections thus and briefed benefits and *9 Supreme may the Court it vacate of its laws.... —should Const, State, § provides: Vanderpool 23. The Okla. art. 25. (Okla.1983). Legislature pass granting "The shall no law to association, any corporation, any or individual rights, privileges, exclusive immunities 26. Id. within this State.” Kimery v. Public Serv. (Okla.1980). ALA, Justice, WATT, J., defendants, are OP with whom only that the The acts Oklahoma, joins, concurring part dissenting in in in and committed not residents of part. hire to Mike Jones to were call and packer a stuck from an oil him remove opinion I concur insofar as the holds While contact- gas well in Kansas. Mr. Jones then correctly the that trial court exercised in the plaintiff ed the to whom he subcontracted non-residents, jurisdiction personam over the Later, called work. one of the defendants the I dissent from court’s revision of Rule plaintiff requesting a for on the the bid work Today’s 3.15.1 amendment relieves the cer- the plaintiff The sent bid to the same well. respondent telling tiorari this court what of The defendants then called defendants. remain to be reviewed in the would case if accept. the Appeals’ certiorari overturned Court of dispositive pronouncement on some issue. only The other contact of the defendants court never should reach consider is one of the defendants with Oklahoma that any ation or remand issue left unaddressed gas in oil and leases Okla owns interests Appeals’ jurisprudence the Court of un undisputed that these interests homa. It is respondent argues the certiorari less more, —either part not of Without this suit. response petition2 in the to the or in a brief ownership property in the does the State the on certiorari3 —that issue which went support not this State’s over liti would, unresolved the intermediate court gation property. to the unrelated See Schaf decided, Appeals’ make the Court result if Heitner, 186, 209, U.S. S.Ct. fer My today giving counsel correct.4 2582, 53 After L.Ed.2d respondents arguments they the benefit of facts, agree the I must the reviewing all not raise in the and did certiorari finding Appeals’ that the district Court rewarding their silence. the court lacked over defendants. I. Justice, SIMMS, concurring in part, dissenting part: OKLAHOMA’S REVIEW ON CERTIO- RARI —WHICH IS ONLY GRANTED Part I forth I dissent to for the reasons set AND FOR SPECIAL IMPORTANT REA- the Supreme United States BE SONS—SHOULD AS NARROW AS Colombia, De Helicopteros Nacionales BY THAT THE UNITED STATES SU- Hall, 408, 104 S.A v. S.Ct. PREME COURT (1984), join L.Ed.2d 404 and Chief Justice jurisdiction, Hodges of its writing. in his I also concur Part In the exercise certiorari majority not opinion. II of the United States Court does Court, O.S.1991, 3.15, provides peals of Rule Ch. on Certiorari text App. part: in the pertinent Rules on Practice Court, Appeals and Court on Certiorari to that upon petition respon- "The shall be served opinion adopts today which the court's is: (10) days may dent who within ten thereafter petition writ of to re- “When a certiorari upon petitioner an answer in file serve Appeals view a decision of opposition petition be which shall succinct granted, order be that ef- entered to length, pages.” exceed in ten ... and shall not presented fect. Issues [Emphasis supplied.] will not considered the Su- however, Provided, preme Court Court. if grant- for certiorari has been 3. When Appeals did not decide all issues, ed, may permit parties to addi- preserved Court this court file briefed O.S.1991, may the Court it vacate the See Rule Ch. tional —should briefs. Appeals matters or such undecided App. Practice and Procedure in the Rules on of it —address to the remand cause Court Certiorari case Court to address such issues. The supra note issue or will then be decided on reviewable filed, presented in the briefs theretofore judgment may be affirmed even 4. A lower court's filing good additional unless for cause given though wrong were for the reasons [Emphasis supplied.] then allowed.” briefs be Young, Okl. 274 P. decision. Hill v. E, O.S.1991, Rules 2. Rule 3.14 *10 Ap- in the Court of on Practice dispense unique law-develop- use the individual to facilitate this court’s relief. (cid:127) Rather, judicial it devotes its scarce re ment role. deciding important questions sources to achieving uniformity body of federal II. law.5 Oklahoma’s certiorari review should ISSUES RAISED ON APPEAL AND similarly
remain
structured.6 In this state’s
LATER ABANDONED ON CERTIORARI
system error-correcting
two-tiered review
BE
SHOULD NOT
REACHED
RE-
FOR
the mission
the court
initial
review
of
of
VIEW
responsibility
while this court’s
stands con
developing
pru
the law
fined
highest
ordinarily
Nation’s
court
will
cutting-edge
jurisprud
dent use
of
questions
parties
not consider
have not
ence.'7
incorrectly
raised8 nor those which have been
Today’s
pr
rule revision mil
cer-
This court also has refused to
transform
esented.9
bringing
tiorari
into
responsibility
whole cases
error-
assume counsel’s
for advocat
correcting.
adoption my
An
ing
of
counsel would
the cause.10 Issues on certiorari are
preserve
scope
by
a narrow
of certiorari
review framed
for that writ.11 An
Miller,
Grossman,
Wright,
Cooper
applicable
See
&
accord with
decisions of this court
5.
Feder-
States;
Supreme
or the
Court of the United
Procedure,
al Practice
Jurisdiction
and Related
(1977).
"(3)
§
4004 at 517
Appeals
To conserve its
Where a division of the Court of
Matters
judicial
scarce
resources the United States Su-
has rendered a decision in conflict with the
preme
court;
speci-
Court sometimes limits its review to
decision of another division of that
"(4)
questions, although
grants
Appeals
restricted
are a
Where the Court of
has so far
fied
relatively
percentage
departed
small
accepted
of the total cases re-
and usual course
supra
judicial proceedings
viewed.
at 516.
of
or so far sanctioned
Wright,
procedure by
such
a trial court as to call for
Although this court seldom limits certiorari
power
supervi-
the exercise of this
issues,
court’s
predesignated
parties
review to
should not
[Emphasis supplied.]
sion.”
mistakenly assume that it will take over counsel’s
advocacy.
role of
We have
to consider
refused
importance
opposition
8. The
of a brief in
to a
but not raised in the
briefed
petition for a writ of certiorari is twofold: it not
certiorari. See the authorities
note 11.
infra
only assists the court in the exercise
its discre-
30.1;
A, O.S.1991,
§
tionary jurisdiction,
6. 20
helps
O.S.1991
Rule 3.13
but also
frame
Ch.
Rules on Practice and Procedure
issues that
would be
the court
before
if
Appeals
granted.
in the Court
U.S.Sup.Ct.
on Certiorari to that
certiorari were to be
See
pertinent
§
Court. The
terms of
30.1 are:
Rule
28 U.S.C.A.
n
Appeals may
"A decision of the Court of
Supreme
Illustrative of the United States
by
Supreme
majority
reviewed
Court
aif
general
Court’s
rule
consideration of
granted
its Justices direct that certiorari be
not,
questions
correctly,
by
or not
raised
[Emphasis supplied.]
-”
Arizona,
351, 352,
parties are Tacon v.
410 U.S.
pertinent
terms of Rule 3.13 A are:
998, 999,
(1973) (issues
93 S.Ct.
449 advocacy apply appeal but reasserted adversary of must tendered on not Rules issue An aban every stage stands abandoned.12 re- on certiorari the same force at of potency viable sapped issue doned is appellant initially duty bears the view.16 of for judicial relief; it mil be reached of presumption to overcome the correctness for sponte.13 sua resolution decision;17 attaches trial court’s to the of appellee the victorious bears the burden a double Today’s revision creates rule prius triumph.18 nisi defending his earlier required petitioner What is of the standard. very presumption the cor- fail Because same respondents is relaxed for who certiorari of is attached to intermediate always rectness protect client to their decision, respondent of a certiorari predictable contingency the Court court’s opinion might defending Appeals’ be vacated and bears burden favorable of by were not reached the intermediate which pronouncement. Appellate courts do not en- Although an go would unreviewed. tribunal theory has gage a search for some petition super- party’s aggrieved certiorari by to a valid not been raised counsel find prior pleas all for corrective relief on sedes judg- nisi prius a reversal ground for of the ment,19 review,14 today’s revised rule bestows law-developing A court should never re- affording legally largesse of unwarranted screening post-decisional burden itself with sponte review all issues spondent sua of lawyers run mission a rescue for duties Appeals, wheth- unaddressed who, foresight, press for lack failed to of court er tendered or untendered arguments or to advo- conditional alternative losing advocacy.15 litigant’s The same of resulting correctness intermediate cate parties; applied all standards should be jurisprudence.20 court’s questions not reasserted on certiorari timely-filed beyond reviewing cognizance Although without stand of no own, party permitted its will be either court. petition of 48, D.D.F., Okl., 703, (1990); (1985); City P.2d 709 702 P.2d 54 v. 801 McCracken Matter Lawton, Okl., 18, (1982); Okl., (1989). Ford, 950, 21 1 P.2d n. 11 766 P.2d 952 n. 648 Ford v. Okl., Okl., 762, Co., Goodwin, 688 597 P.2d 764 Application See Mitchell v. Ford Motor Credit 42, (1984). (1979); Special Indemnity 44 199 Reynolds, P.2d Fund v. (1948). public- 188 P.2d 842 Okl. No 979; the case here review. 11 Cunningham, law issues raised note at supra Matter 12. 1252; D.D.F., S.C., supra note 11 at Matter of 709; Ford, supra supra note note 11 at 952 11 at 331; Mead, supra Peters, 25 at note 17. note infra n. 1. 694; Douglas Martin, 204 228 10 at Okl. v. (1951); Brin, Okl. 1023 178 v. P.2d 339, Wilhite Ford, supra 952 13. 11 at n. 1. note (1936). P.2d 1241 14. See note 11 at 980. Cunningham, supra Appellate Rule Rules Cases, O.S.1991, com- Civil Massachusetts, Judicial Court of appellee response to the mands file own, appellate is not unlike our whose structure required petition in An answer error. brief prudent party that a warning has sounded a a nisi decision prius While reversal 1.28. Rule should, appellate prevails in court on certio- failure to file an answer is never automatic rari, essentially position consider his/her brief, presump- appellant overcome has if as the intermediate court. the same that before decision, the trial court’s tion correctness response Those who do not address brief See, appellee. e.g., its burden of shifts defense incur a alternative contentions all successive or Stroud, Okl. City v. Tulsa will not be risk that the unaddressed issues clear Swaim, (1938); 66 Okl. Buellesfeld Flaherty, Ford v. reached consideration. (1917). also, P. See Needham 305 N.E.2d Mass. Okl., Hays, 431 P.2d compliance with the exception 16. An to strict Mead, supra at note 19. advocacy appellate made sometimes rules controversies, court is where this public-law law- 20. This court's missions rescue cause as sees fit based free to determine the it for deficient past. Dixon, my disapproval yers have met with upon Okl., fact. Simpson the law and the Okl., Anderson, See, (1993); Bryant e.g., & Reynolds Bane v. 187 n. 55 J„ Fund, Okl., (Opala, concur- Dist., Okl., Special Indem. dissenting part.) ring part Independent Burdick v. School *12 450 relief, any
to secure vacation or modification SUMMARY party may against party’s another defend sum, In I remain committed to the tradi- quest by pressing for certiorari those errors appellate tional rules of common-law advoca- Appeals’ pronouncement the Court of cy. require appellee-respondent These an which, rectified, when would sustain that appellant-petitioner’s defend an ef- court’s decision as correct in A its result.21 pierce fort presumption the law’s of cor- respondent brings certiorari no counter- every pronounce- rectness which attaches to posture stands in a restricted to the every Today’s ment of court.26 rule revision granted, nothing but defense of relief throws to the wind all time-honored safe- prevents party offering arguments guards orderly process by inaugurating from support regime correctness.22 reward for an advocate’s silence. reliefs unmistakably pledges The court to the Bar To the extent Johnson v. Wade23 teaches sponte that it will sun search and consid- any party, whether “winner” or “loser” respondents er which issues certiorari have Appeals, press. I must recede failed certiorari to ensure review of require parties issues raised notion. I would —who were successful in the Court of appeal, concededly and briefed on it is over- who have no reason to seek certiorari re- A counter-petition broad. identify view—to all those issues left unad- required only respondent if the seeks to en- dressed re- large rights its own or diminish those de- main viable and should be considered either peti- clared the decision in favor of by this court or be reviewed on remand. paints tioner/24 The court with too broad a narrow, kept Certiorari must be as a issue- brush when it overrules Wade in toto process rather than be transformed focused fashioning brings up a new rule that into a whole case review. entire case. long This court has been committed to the
principle that claims to error which there support argument authority is no Today’s
deemed abandoned25 sub exception
silentio carves out an for certiorari
respondents. The revised rule announces willingness
the court’s sponte to comb sua any the record and briefs for
left unaddressed the initial
review. Semrod, Okl., 742, Okl., 536, May (1979). May, 351 P.2d 745 596 P.2d 540
21. Woolfolk (1960); see Oklahoma Water Resources Bd. v. Okl., 38, County, (1984); Texas 711 P.2d 67 n. 48 Okl., 255, (1982). 642 P.2d 257 Bradshaw, Okl., 578, Matter Estate 606 P.2d (1980); Co., Okl., 580 Nilsen v. Tenneco Oil supra 24. See the authorities notes 21 and 22. 36, (1980); Guy P.2d Co., Okl., Trucking Short v. Nall (1968); 442 P.2d Great Ameri Strain, Okl., can Reserve Ins. Co. Dallas v. Shaw, Okl., 25. Hadnot v. 826 P.2d (1963); American Nat. Bank v. (1992); v. Echeverria,Okl., Holbert 744 P.2d Co., Ardmoreite Pub. 123 Okl. 253 P. (1987); Spe 962 n. 4 Messler v. Simmons Gun (1927); Eaton, Bruner v. 121 Okl. 249 P. cialties, Inc., Okl., 687 P.2d 129 n. 11 (1926); Muskogee Refining Co. v. Wa (1984); Co., Okl., Peters Golden Oil ters-Pierce Oil 89 Okl. 215 P. (1979); Jobe, Harley 207 Okl. also, (1923). Party's Annotation, Effect John Deere Plow Co. v. Cross-Appeal Scope Appellate Failure Re Owens, 194 Okla. Party view As To Contentions Relating of a Judgment 63 L.Ed.2d Court Cases, Below — supra 26. See the authorities notes 4 and 10.