Lee Way Motor Freight, Inc. v. Welch

light applicable judgment upon development of all the facts further able circumstances, disposition then the facts that the defense raised case of law and 401(b)(15) of the becomes matter under issuer Section must be may grant summary judg- the trial court tested the crucible of a trial. mere- We ment. require ly pleadings, affidavits, that depositions, evidentiary admissions or other at Mayfield, 735-36. materials genuine establish that there is no Lambrecht, In we found issue of material fact and that reasonable by refusing court erred to direct verdict differing minds could reach not inferences for the investors at the close evidence or conclusions that the issuer has or has is a after trial. directed verdict mecha proof not satisfied his burden of concern- jury nism which the controls the ing exemption all of the elements claimed. hands, by taking jurors’ out of the case See, Buckner v. Corp., General Motors delayed summary like and acts somewhat (Okl.1988). motion in it determines that genuine no there are issues fact that The summary judgment is REVERSED Friedenthal, the jury. need to be sent to and the case is remanded further supra at 540. ceedings not inconsistent opinion. with this sufficiently the record Lambrecht HARGRAVE, V.C.J., HODGES, developed testing after adversarial such LAVENDER, OPALA, WILSON, that, ALMA together taken the stipula- when SUMMERS, JJ., parties KAUGER and applicable tions of and the concur. stat- utes, no issue of fact existed submit to SIMMS, J., dissents. jury disposition the case question became a of law for the court. Id. Here, contrast, signifi- the most

cant feature of the record us is its granted

paucity. summary judg- briefs, upon pleadings, par- based tial admissions and affidavits. INC., FREIGHT, LEE WAY MOTOR May- The instant case is similar to PepsiCo, Inc., Petitioners, field, we in support where found the record summary judgment might reasonably WELCH, Loyd conclusions; therefore, Claimant-Respondent. support differing E. summary judgment inappropriate. No. Mayfield, at 736. The here record reflects Supreme Court of Oklahoma. questions of material fact exist whether the carried interests this “third for a Nov. quarter deal” supervisory and the fee ex ceeded a reasonable fee for the services

actually question performed; a material working

fact exists whether the interest had diluting

retained the effect of in funds; and,

vestors’ material knowledge

fact exists whether the

business skills of the made investors them requiring protection

members a class We,

the Oklahoma Securities Act. there

fore, misapplied conclude the trial court granting summary

Lambrecht and erred

Our not decision should be taken to mean summary grant the trial court Morrison,

Albert M. Kenneth N. McKin- Roark, ney, L. McKinney, Stringer Robert Webster, Green, Turner, & and Charles C. Turner, Braun, Green City, & Oklahoma Case, and White City, & New York Schiff, Waite, Chicago, Ill., Hardin & petitioner, PepsiCo, Inc. Gravitt, Gossett, Stipe, Stipe,

Lew Har- per, Estes, Parks, McCune & Oklahoma City, claimant-respondent. OPALA, Justice. questions

Three are tendered for our re- view: ^[1] Does the out-of-state parent com- pany’s guaranty subsidiary—a for its local necessary device to assure the latter enti- ty’s continued status as an Oklahoma own- employer—make risk liable payment of benefits awarded guaranty, effective date of the where the default in occurred af- ter the guaranty’s revocation? ^[2] Did the Workers’ Court err in- cluding co-obligor the guarantor—qua bankrupt subsidiary the now own-risk who employer—as party was the an additional certifying codebtor in the order the obli- gation for the district district court in accordance with the terms partial disability payments continued until disability that firmed motion, the trial tribunal remittances of benefits. ruary tion demnity fund tax of fees of ary the affirmative. Inc.,1 or of Lee October disability totaling he on May sion. Lee Co, Oklahoma own-risk To ings required award for affirmative and the second court? Claimant received Loyd employer], was a the third temporary Inc. Court allowed claimant we answer 1984 award Workers’ Way E. Welch Lum v. $3,381. [PepsiCo passenger Way, 1985 the specify Motor default? three-judge suffered an total Court Is then when This order was when on the an order of the [claimant], $16,905, or Freight, employer. By was involved in a all due certifying an first $338.10 guarantor], Following we also subsidiary Lee Way the truck in which permanent review certified on him; Upon on-the-job injury temporary Motor in less balance to the Inc. [Lee an respond permanent Compensa- special in- claimant’s panel. ceased all employee Workers’ negative. later Freight, counsel partial teach- Pepsi- Janu- total colli- Way Feb- af- an in Way facial to a amount of the ed as a district court enforced. We hold that in this certify definite and order under review is has not reduced the award’s sion in siCo’s law which support er the Workers’ equal cated tion claimant had secured basis test. That anty Way The specific came Motor inwas obligation. for the force infirmities—(1) remaining guaranty Lee Claimant relies on the certification Way’s its liability govern revoked Way It Freight, sum, propriety default is be certified guaranty, accepted by was hence filed below after compensation liability.5 this award and employer-subsidiary because ceased to meet that are stated district court a issue for review is wheth- the order cannot be treat- The Inc.4 I the award whose on the award in enforceability general principles PepsiCo award there to be order ambiguous fraught finding PepsiCo’s They apply PepsiCo’s unpaid portion certified was Lum v. Lee conclusively Court must on respect with two that Lee July revoked August specific and in- of Pep- adjudi as the inclu order guar por con of O.S.Supp. 1983 422 28 of and Rule § THE TRIAL FINDING TRIBUNAL’S the Workers’ Court.3 OF DEFAULT IS TOO VAGUE that order the trial neither reduced AND INDEFINITE to a lump sum nor made a finding with certifying The trial court’s order respect to specific un- partial permanent disabili January 3, balance then due on the ty for execution and enforcement PepsiCo, guar- award in default. finding district court rests on its that: antor, who was included the certification Order, entering “2. since said Re- ... party obligor, as an additional comply brought spondent has failed to herewith proceeding the instant for correc- tive relief. in accordance with said Order.” mail, delivered, given by 1. 757 P.2d 810 er or has (10) days prior least ten to the scheduled pertinent 2. footnote note 8 for the infra thereon, hearing respondent at which and in- provisions of 85 1983 § opportunity surance carrier shall be afforded why application cause to show should not The terms of Rules of Rule the Workers’ Court, granted.” [Emphasis App., added.] 85 O.S. Ch. are: Supra note 757 P.2d at 814-820. application directing "An an order an award to be district Inc., Freight, supra 5. Lum v. Lee Motor note after heard respondent notice to the carri- insurance 1 at 814-820. vague employers or the latters’ language is too ants when their quoted

The provisions. interpretation. insurers violate the Act’s judicial One indefinite for ex- terms of 85 O.S. 1981 417 and 85 O.S. from a four-corners’ cannot determine § Supp. prescribe procedure quoted text when and of the amination obligor’s upon on its failure Way had defaulted followed what manner Lee pay the terms of obligation. An due under adjudicated compensation finding An insurance ambiguous award. on an order based proceed- ten-day carrier’s default further subject to vacation statutory ac award effects a ings.6 adjudicated celeration of the obli II gation and the installments are unaccrued sum, lump at once thus commuted to a DID ORDER THE CERTIFICATION making obligation im the entire unsatisfied LAW, REQUIRED NOT, BY AS mediately due.10 THE UNPAID AWARD CLOTHE THE ATTRIBUTES OF AN WITH Upon finding obligor in an default COURT ENFORCEABLE DISTRICT payment, of the Workers’ JUDGMENT unpaid the award’s may certify amount and direct that a copy Act of its certifi The Workers’ any claim cation order filed in the offices of provides the remedies to be available 7. The Brothers P.2d vide: 205 Okl. mins v. State Industrial Corzine portions, becomes final the total number of weeks be entitled to receive ... When the award portion "A. Awards for pensation specified in Section 22 of this ti- which the Court shall find the claimant will tle. ... Failure cated shall termined person death ant, under award commuted to permission of the Court.... enforced C. All shall be in the manner and ance carrier to be in Court not to exceed the ments tial added.] Section 42 of this pertinent disability, for award or immediately obligation benefits, Section 22 of this title shall be made for ^[******] finding [1945]; unpaid, receives an award for payments Transport, thereof shall paid by periodic final, good by by including Compress, immediately the Court. Whenever an terms De Vore v. Maidt any portion thereof, permanent shall the whole sum or cause P.2d permanent shall claimants.... entitle the injured employee respondent Okl., and of O.S. 1981 41 ten form immediately operate future 196 Okl. shown, default be made Commission, Okl., 264 lump-sum payment by title_” Leffler (10) days weekly enforced installments as de- prescribed by total partial disability beneficiary periodic as a final permanent par- thereof and all may and/or Plastering on [1952]; v. McPherson rate of com- disability become any unpaid All awards as ordered any [Emphasis have the or claim- 164 P.2d provided pay any may injured adjudi- install- award insur- Cum to an this Co., due 8. The terms of 85 10. See that when there payment of against commuted to unsatisfied crued installments See also ny, supra 42 of the Workers’ at 831. Grady County Griggs, supra, 192 Okl. In Pruitt v. Mid-Continent phasis tion shall issue writs record, fied whether accumulative or filed subject to the same law as days insurance carrier liable entered on court, cedure of the State from an ment county district "If and the cost thereof may terms pertinent part: payment copy Pruitt order a after in the payment In Excise Board of and shall have added.] court_ note 9 at 496-497 and Excise Board P.2d as clerk execution, Pruitt award, an of the Court’s award a writ of execu- obligation employer in a final accumulative the same is due provided v. Mid-Continent office of periodic award, except certified of of is an judgment of the court noted lump compensation is not made within ten any county, “[b]y Upon on process by becomes due taxed, sum so that the entire copy the court [1961], Grady County Griggs, judgments of installments the same the Oklahoma_” force of law ... are docket of the district therefor, Pipe lump by of 1983 42§ in case of Code of Civil Pro- court, filing judgments as Pipe shall be executed the court noted 138 P.2d note 9 Line that in the case of which award or an install- default in the due clerk and the sum shall be force Act facilitate Line employer award of the certi- such unac- the Court §§ Company, under courts adjudged provide Compa- appeals and be 41 and once.” of [Em- the or of clerk, county levy.13 clerk court as well as be Execution cannot issue if the A judgment entered there on docket. is ambiguous or uncertain in award that has been so sum, In amount.14 in the because absence reduced to a fixed amount and filed fixed amount the adjudicated obli acquires by court force of statute district gation appearing on its no face efficacy judgment. aof district court can contemplation law,15 exist in a certi short, statutory pro certification is the fication order must be clothed with the transforming cedure same certainty attributes of as those which into an court default enforceable district necessary are support execution or other adjudication by clothing obligor’s com upon a district court pensation liability with the attributes judgment. court district At the hearing certification below court, When filed in the certi- district claimant’s counsel informed the trial tribu legal fication affords for enforce- vehicle nal of the amount that had proceedings to be conducted that permanent partial disability the bal provides forum. Section that when the ance unpaid. Way’s remained is certified award entered counsel had dispute no fig reason docket,11 process shall execution and other given ures to the court. The in the as for district issue same manner nonetheless finding make a refused judgments.12 total amount of award in de fault, stating writ of issued the district court would clerk proper the court and directed to the sheriff be the forum to effect determin 11. The terms of 12 O.S. See 85 12. tion of individual installments as the same ac- lative awards expeditious is able to P.2d crue vided effect resorting adjudicated obligation. Entries on the execution Const. the amount of the § 26 which form be the shall rendition óf a "The person directed to “Executions shall be court, may be directed to ment docket same of added.] names of the The terms of compel 399, and when the in Corporation appear judgment of an time.” duty and shall be issued pertinent part: become to successive against 403 [1944]. satisfaction of avoid enforcement of provides: and index in which the name of each parties, certified order was alphabetical enable whom the docket shall be due. sheriff judgment. v. and costs....” clerk statement O.S. Silver, cumbersome method of different counties 1981 proceedings deemed the amount and nature See the judgment immediately the § delinquent beneficiary-worker § also enter 194 Okl. order, aggrieved aggregate unpaid See 12 25, containing must county. They supra Rucks-Brandt on said kept is rendered issued, and it shall [Emphasis clerk, also show O.S. 1981 statute in accumu- 324, after the provide: note 8. worker collec- in the judg- 151 As a 14. tory Execution the Mount Stan’s 293, amount to issue. St.Kan.1893, par. note [1880], Our execution Moon, tling referenced struction [1918]. on a body codified with [1956]; tate 1893, 4333); all executions as "In the execution docket the clerk shall enter the date and amount costs_” Roach, though enforcement of a scheme statute 294 money judgment Co. of § of our Drive-Ins, v. general Speake, shall contain This was Arbitration: Okl. placed by Trammel, 164 it had is the be Hall later Santa of other principle is legislative adopted 38 [1952]. recovered before an execution can our Ohio St. statute, at the time of its rule, process statute and has adopted 136 statutory compilation they Barbara, 4538. A paid. the Kansas Stewart, 73 Okl. judgment jurisdictions. McKay the Cal.App.2d from expressly P. must state with Los are issued law. See Matter issued also found judgment O.S. 1981 names of the Board 132 Kansas Angeles, 96, Oklahoma becomes the prestatehood 23 v. Coca-Cola Bot- must N.E.2d Cal.App.2d carried adoption 175 P. Supreme the same 648, 650, Kan. judgment the court for § in See, or decree. specify him. The 731, supra Com’rs Etc. the statu- 288 P.2d 280, certainty 232, into as parties, Roach it was effect Gen. n. 5 con- and 281 745 234 (St. Es- Way properly was included in the certi-

ation.16 fication order for district court enforce- give certified award the To Way—the employer—was ment. Since Lee judg efficacy of a district court force and bankruptcy obligation pay then in ment, duty-bound suspended by the award stood force of due and find the amount that was law, only federal Although in default. under the award obligor against is- whom could hearing re transcript of the certification sue. The certification of the undisputed testimony as to the un flects facially execution and enforcement is amount, nothing upon the face there is (a) infirm because the trial tribunal’s find- gives order that it the of the certification ing in “compliance” that Lee was not for a sum certain. quality vague ambiguous was too to establish legal of an suffi No assessment order’s (b) its default and the certification order’s ciency may made on the basis failure to reduce the to an alone is the transcript, because it prevents becoming amount certain it from placed county of record in the which is enforceable district court clerk’s office and on the district court’s short, judgment docket.17 In the award’s THE ORDER IS ACCORDINGLY SUS- amount must always ascertain TAINED IN PART AND THE MOTION examination of able from a four-comers’ TO CERTIFY IS REMANDED DI- WITH the certified award. RECTIONS TO SPECIFY HOW AND OCCURRED, WHEN DEFAULT IN- SUMMARY THE CLUDE IN CERTIFICATION OR- DER THE UNDISPUTED AMOUNT OF The certification order under review does ARREARAGE, TOTAL DETERMINE qua sine non standard meet the THE RATE APPLICABLE OF ACCRUA- correctly definiteness. The trial tribunal INTEREST, BLE AND THE INSERT that the claimant in this ruled case could DATE FROM WHICH guarantor’s INTEREST ON secondary liability invoke the THE Way’s compensation obligation for Lee CERTIFIED AMOUNT IS TO BE guaranty accepted. existence when the CALCULATED.18 16.The ernaw, 47 F.2d 610 [D.C.Okl.1931]. supra note 13 at 234. Issuance of execution is for that that tribunal trict court enforcement not an States have been lieu of enforcement method for S.E.2d In some ham Iron Co. v. exercise sation award is initiated copy as a ment in accordance with the award. The dis- In some trict court could a continuation of the unpaid award when it already been determined. Mount v. 157 S.E. execution separate Fidelity Guaranty independent purpose. through jurisdictions the award jurisdictions given is to enforcing compensation judge apparently ancillary then 210 [1931]. & to the its executive officers other enforce a determine Durham, Vickich v. in the district automatically action. See Lahman v. compensation enforcement of a machinery process. proceeding stage execution constitutes a by filing Co., filed in Superior 62 is there not viewed believed the dis Camp Ga.App. which renders but rather as court, Ga.App. claim. Dur- that forum purpose a certified tribunal to awards in Court, appointed v. United Trammel, that has compen- 361, where might judg- Sup role In some is thus limited to enforcement of the in default. district court ers Ins. ment certified court, ready authority modify any proceedings 336 S.W.2d award. and not of the district court. The latter has no manner. Travelers Insurance collection those iff levies on the instrumentalities of the 849, Cal.App. 145 Va. Only proceedings upon ascertained to be due. systems, a Parker v. Blackwell Zinc 637, Co., supra. the certification order constitutes the states, copy Greitz 587, on the certified amount and the sher by legal process 583, 134 S.E. 922, authority of the award is filed in the district be extended or modified in 288 P. much like in when the execution, 584 923 is Sivachenko, 562, entered, [Ky.App.1960]. 127, compensation court clerk enters a these conducting 128-129 in the amount al- Oklahoma, ^[1926] thereby enforcing Company Parrigen The district court 155 Company, officials act as and Travel- [1930]. Cal.App.2d award; under the enforce- tribunal when a Long, Cole, any V.C.J., HARGRAVE, HODGES, SUMMERS, JJ., JOHNSON,

LAVENDER Appellant, v. Marvin E. concur.

SIMMS, J., Oklahoma, Appellee. concurs result. STATE of No. F-86-917. WILSON, J., part. ALMA dissents Appeals Criminal of Oklahoma. KAUGER, J., recused. Oct. WILSON, Justice, dissenting ALMA part: part majority I dissent

opinion which concludes the order is incapable

review of enforcement in the conformity

district court. I would hold jurisdictions those which consider that enforcement copy filing

is initiated

of the award in the district court where judg- renders a automatically

that tribunal [emphasis accordance with mine] See, No.

the award. footnote opinion, majority citing Durham Iron Durham, 62 Ga.App.

Co. v. 7 S.E.2d Camp Fidelity v. U.S. Co., Guaranty

& Ga.App. 157 S.E. (1931). sought The amount obviously fig-

enforced a definite award is immediately

ure and ascertainable in a hearing by district court reference sim-

ple arithmetic. The district court’s judg- (not

ment thereon Compensa- judgment)

tion Court is subsequently ten-

dered integri- execution. Otherwise the

ty of the district court’s appa- impinged by foreign

ratus is tribunal.

Moreover, I see no adopt proce- reason to may encourage

dure which delay in the Compen-

sation awards.

Case Details

Case Name: Lee Way Motor Freight, Inc. v. Welch

Court Name: Supreme Court of Oklahoma

Date Published: Nov 1, 1988

Citation: 764 P.2d 191

Docket Number: 63900

Court Abbreviation: Okla.