Horton.v.Hamilton.2015.OK.6

In Horton, the OK Supreme Court reversed the trial court’s grant of summary judgment on plaintiff’s claims for securities fraud, common law fraud, gross negligence, and other causes of action arising from the sale of a fraudulent investment bond.

The action accrued on the day the defendants sold plaintiff a security by means of misrepresentation. The statute of limitations began to run when she discovered or in the exercise of reasonable diligence should have discovered the facts to bring her claim. On summary judgment, the defendants must establish when plaintiff knew or should have known that defendants sold her a bond through fraud, and that she filed her action more than 2 years from discovery.

The summary judgment record here is insufficient for the court to ascertain when plaintiff discovered or should have discovered the misrepresentations, as reasonable people could reach different conclusions.  The Court thus held the defendants failed to present sufficient documentation concerning discovery of the cause of action to warrant summary judgment on defendant’s claim that the action was barred by the 2 year statute of limitations.

Perry.v.Norman.2014.OK.119

In Perry, the OK Supreme Court held that a claim against a municipality for excessive force by police officers may not be brought under the constitutional tort doctrine of Bosh.v.Cherokee Building Auth.2013.OK.9, because a cause of action under the Oklahoma Governmental Tort Claims Act (OGTCA) is available.  Perry’s claim against the City of Norman for excessive force  by police was properly dismissed because he failed to pursue his OGTCA remedy.

Bosh held that despite the immunity granted for operating jails and prisons under the OGTCA, Okla.Const.2.30’s prohibition against unreasonable search and seizure created a private right of action against the municipal employer for an employee jailer’s excessive force under the common law doctrine of respondeat superior.

Respondeat superior holds an employer is liable for the willful acts of employee within the scope of the employment in furtherance of assigned duties, including excessive force in connection with certain occupations (e.g., police and jailers, bail agents, caretakers), when the use of force is authorized generally and occurring within one’s scope of employment.

Bosh does not apply here, because OGTCA immunity that barred the prisoner’s suit against jailers in Bosh does not extend to the acts of municipal police officers.  Plaintiff thus had a viable OGTCA remedy rather than the constitutional tort allowed under Bosh, which exists only when no other remedy at law exists.

 

St.v.Alba.2015.OKCR.2

In Alba, the OK Court of Criminal Appeals reversed the trial court’s suppression of evidence in a DUI prosecution. Alba was arrested for DUI after a concerned citizen called police and reported she was following a suspected drunk driver at her location.

The caller gave her name and number, described her own car and location, and stated she had seen the driver sway, walk into a light pole before taking the wheel, and had seen her moving her hands with something that might have been drugs.

Police located both motorists from the information provided and initiated a stop of Alba, which led to evidence of DUI.  The caller also remained at the scene of the arrest.

The trial court, relying on Nilsen.2009 OK CR 6, found the officer’s stop based solely on the informant’s tip, without independent facts creating reasonable suspicion of drunk driving, violated the 4th Amendment.

The Court reversed.  Since Nilsen, the Supreme Court decided Navarette.v.CA.134.SCT.1683 (2014), which upheld an investigatory stop of a vehicle based upon an anonymous 911 call, because (1) the caller gave sufficient details to claim eyewitness knowledge, (2) the report was contemporaneous with the observed criminal conduct; (3) the 911 system provided some safeguards against a false report; and the reported behavior provided reasonable suspicion of drunk driving.

The Court found the circumstances here more compelling than the facts of Navarette.  The caller gave eyewitness knowledge, was readily identifiable here.  Reasonable suspicion to justify a stop depends on both the content of the information possessed by police and its degree of reliability.  Anything to the contrary in Nilsen is expressly overruled.  The district court’s order granting the motion to suppress is reversed.

 

Whitaker.2015.OKCR.1

In Whitaker, the OK Court of Criminal Appeals held that a claim of excessive sentence raised for the first time on appeal from the acceleration of a deferred judgment exceeds the scope of review in an acceleration appeal and is not properly preserved for review.

Appropriateness of the sentence after a guilty plea is properly reviewed on appeal from the judgment and sentence, by filing a petition for writ of certiorari after the trial court’s denial of a motion to withdraw a plea of guilty.   22.OS2001,1051(a)1.

Under Rule 4.2(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2014), no matter may be raised on certiorari unless the issue was raised in the application to withdraw the plea.  A defendant who claims his sentence is excessive in a certiorari appeal must raise the issue with the trial court and make a sufficient record for appellate review.

The trial court’s acceleration of the deferred judgment is affirmed.

Pummill.v.Hancock Exploration.2014.OK.97

In Pummill.v.Hancock Exploration, the OK Supreme Court summarily reversed and remanded the trial court’s summary judgment order on four separate issues in this oil and gas royalty dispute when oral argument revealed that facts which could affect the resolution of the issues need to be addressed before the fact-finder.

American Airlines.v.OTC.2014.OK.95

In American Airlines.v.OTC, the OK Supreme Court reversed the OTC’s administrative denial of American Airline’s claim for refund of sales taxes paid for gas and electric utilities in connection with its aircraft repair activities.

When the OTC acts in its adjudicative capacity, its orders will be affirmed if 1) the record contains substantial evidence supporting the facts upon which the order is based and 2) the order is free of legal error. Neer v. State ex rel. Oklahoma Tax Comm’n, 1999.OK.41.

The Supreme Court held that under the Oklahoma Sales Tax Code, 68.OS2011.1350-1354.6, the Streamlined Sales and Use Tax Administration Act, 68 OS2011.1354.14 and its Services Exemption (68 OSUP2006.1357 (28)), American Airlines was exempt from sales tax paid on electricity and natural gas utility services used during 2006 in aircraft repair and maintenance activities.

The Court remanded for a determination of the appropriate methodology for determining the amount of tax refund.

Eldredge.v.Taylor.2014.OK.92

In Eldredge, the OK Supreme Court held that a parent of children created and reared by a same-sex couple had standing to seek a judicial order concerning visitation and establishment of parental rights to the children; and that a contractual co-parenting agreement expressing the parties’ intent to create parental rights in the non-biological parent was not void as contrary to the state’s public policy against same-sex marriage.

The biological mother of the children in question terminated her long-time same-sex union with the plaintiff.  She then changed the children’s names and intended to leave the state.  Plaintiff, with whom the biological mother had executed co-parenting agreements and raised the children as a couple for several years, filed a petition in district court seeking enforcement of the co-parenting agreement, a determination of her parental rights, visitation with the children, and other relief.  The district court dismissed the petition.

The Supreme Court reversed, rejecting biological mother’s arguments that the non-biological parent lacked standing, that the co-parenting agreements were void against public policy, and that non-biological parent had no justiciable rights to the children.  The Court presumed that biological mother had acted in what she believed were the best interests of the children in executing the agreements, which are not void on their face despite OK’s ban on same sex marriage.  The OK Adoption Code, which governs parental rights in such circumstances, does not preclude establishment of the parent-child relationship with an adoptive parent of the same gender as the biological parent.

Biological mother consented to sharing her parental authority with plaintiff,  encouraged a parental relationship between plaintiff and the children, held plaintiff out to the world as the children’s parent, and accepted plaintiff’s financial and emotional support even after they separated. These factors justify state interference into biological mother’s decision to terminate plaintiff’s contact with the children. On remand,plaintiff must establish the valid contractual provisions that she seeks to enforce are in the children’s best interests.  But  the public policy of this State mandates that the court consider the best interests of the children before they lose one of the only two parents they have ever known. The district court erred in granting the motion to dismiss.

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