Appendix — Funnell v. Jones

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y Supreme Court, U.S,

. a oe ee:

QZ -1 92 | JUL 1 1987

" JOSEPH F. SPANIOL, JR.

a ) CLERK

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

ROBERTA ANN FUNNELL, Individually and

as Administratrix of the Estate of

DAVID ALLEN FUNNELL, Deceased, and

DONALD FUNNELL, Petitioners,

Vv.

STEPHEN JONES, ET AL., Respondents.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF OKLAHOMA

ROBERTA ANN FUNNELL

3115 Harvey Parkway

Oklahoma City, OK 73118

(405) 524-4636

Pro se

July 1, 1987

iisadesaall

EDITOR'S NOTE:

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED.

APPENDIX

TABLE OF CONTENTS

CORRECTED ORDER, May 26, 1987.......... la

ORDER DENYING REHEARING, March 3,1987..2a

OPINION, September 17, 1985....cccecces 3a

AMENDED PETITION FOR REHEARING........ 19a

APPLICATION FOR EXTENSION OF TIME..... 32a

GROER, CHCOD]F FS, TP9SS wc cs cracsssesves 38a

MOTION TO SEVER CAUSE, October 4,1985.39a

ORDER DENYING MOTION TO SEVER CAUSE...41la

MOTION FOR***NINE MEMBER APPEAL COURT.42a

ASSIGNMENT ORDER, April 16,1985 cboosee 49a

ORDER RECALLING OPINION,April 16,1985.5la

RECALL OF VOTE AND DISQUALIFICATION...53a

PETITION FOR REHEARING, March 7,1985..55a

ORDER, Re: OKLAHOMA BAR ASSOCIATION'S

PROFESSIONAL LIABILITY QUESTIONNAIRE.100a

OPINION, Januaty 15,1985. .sccseseceses 102a

CASE INFORMATION SHEET. ...cccessccces 118a

(continued)

APPENDIX

TABLE OF CONTENTS (continued)

Page

ORDER, May 27, 1980 (Case 54,943)...... 122a

DISSENTING OPINION, May 27, 1980....... 123a

MOTION TO SUSPEND APPLICATION OF RULE..127a

PETITION FOR REHEARING (Case 54, 493)..131a

ORDER March 31, 1980 (Case 54,493)..... 135a

APPLICATION AND PETITION (Case 54, 493)136a

ORDER, November 5, 1979 (Case 54,217)..146a

ORDER, October 19, 1979 (Case 54,217)..147a

ORDER, October 10, 1979 (Case 54,217)..148a

Seanor v. Browne, Annotators Headnotes

and Syllabus by the COuS€.seunc eee 149a

RULE 13, OKLAHOMA COURT RULES.......... 153a

IN THE SUPREME COURT, STATE OF OKLAHOMA

Tuesday, May 26, 1987

THE CLERK IS DIRECTED TO ISSUE THE FOLLOW-

ING ORDERS:

59,204 (consolidated with 59,205,

59,212) Roberta Ann Funnell et Mee Ve

Stephen Jones et al.

CORRECTED ORDER: Motions to Sever

denied; Petitions for

Rehearing denied.

CONCUR: Doolin, C.J., Hargrave,

¥.Cide> Sag Wilson,

Summers, JJ., Powers, Means,

Brightmire, S.JJ.

NOT PARTICIPATING: Hodges, J.,

Powers, Means, Brightmire,

S.JJ., appointed in place of

Lavender, Opala, Kauger, JJ.,

who disqualified.

(John B. Doolin)

CHIEF JUSTICE

(FILED Supreme Court, State of Oklahoma,

May 26, 1987, James W. Patterson, Clerk)

IN THE SUPREME COURT

OF THE STATE OF OKLAHOMA

Tuesday, March 3, 1987

THE CLERK IS DIRECTED TO ISSUE THE FOLLOW-

ING ORDERS:

59,204 (consolidated with 59,205 and

59,212) Roberta Ann Funnell etc. v.

Stephen Jones et al. Rehearing denied.

CONCUR: Doolin, C.J., Hargrave,

V.C.J., Simms, Wilson,

Summers, JJ., Means, Powers,

Brightmire, S.JJ.

NOT PARTICIPATING: Hodges, J.,

Means, Powers, Brightmire, S.JJ.,

appointed in place of Lavender,

Opala, Kauger, JJ., who disqualified.

(John B. Doolin)

CHIEF JUSTICE

(FILED Supreme Court, State of Oklahoma,

March 3, 1987, James W. Patterson, Clerk)

IN THE SUPREME COURT

OF THE STATE OF OKLAHOMA

ROBERTA ANN FUNNELL,

INDIVIDUALLY AND AS

ADMINISTRATIX OF THE

ESTATE OF DAVID ALLEN

FUNNELL, DECEASED, AND

DONALD FUNNELL,

Appellants,

vs.

STEPHEN JONES AND WILLIAM

R. THOMPSON,

Appellees.

and

ROBERTA ANN FUNNELL,

Appellant,

vs.

JAMES E. WORK, GEORGE CAMP,

RICK CHEW, ROBERT D. LOONEY,

SR., WENDELL WIGHTMAN, and

THOMAS WILLIAMS,

Appellees.

and

ROBERTA ANN FUNNELL, ADMIN-

ISTRATIX OF THE ESTATE OF

DAVID ALLEN FUNNELL,

DECEASED,

Appellant,

vs.

FILED

SUPREME

COURT

STATE OF

OKLAHOMA

SEPT. 17,

1985

JAMES W.

PATTERSON,

CLERK

No. 59,204

(consoli-

dated w/

59,205 and

59,212)

FOR OFFI-

CIAL PUB-

)

) LICATION

)

JAMES D. FUNNELL and HARRIET )

FUNNELL INDIVIDUALLY AND AS )

CO-TRUSTEES FOR DAVID ALLEN )

FUNNELL; JONATHAN BURCH, )

EDWIN WHITNEY BURCH and )

JERRY DICK, )

)

Appellees. )

APPEAL FROM THE DISTRICT COURT OF

OKLAHOMA COUNTY

Honorable Ray Lee Wall, Judge.

Appeal from order of the trial court

granting summary judgment and holding

that Plaintiffs’ claims are barred by

statute of limitations and by previously

executed settlement agreement.

AFFIRMED.

ROBERTA ANN FUNNELL

DONALD K. FUNNELL,

Oklahoma City,

Oklahoma Appellants Pro se,

RONALD R. HUDSON

Holloway, Dobson,

Hudson & Bachman

Oklahoma City,

Oklahoma

WILLIAM R. THOMPSON

Oklahoma City,

Oklahoma

GEORGE D.

RONALD R.

McKinney,

& Webster

Oklahoma City,

Oklahoma

DAVIS &

WALKER

Stringer

GOMER SMITH, JR.

Smith & Murdock

Oklahoma City,

Oklahoma

EDWARD L. RAY,

Fenton, Fenton,

Smith, Reneau & Moon

Oklahoma City,

Oklahoma

ROBERT J. EMERY

Emery, McCandless,

Gaitis & Bruehl

Oklahoma City,

Oklahoma

JONATHAN W. BURCH

Burch & Burch

Oklahoma City,

Oklahoma

For Appellees,

Edwin W. Burch,

Jonathan Burch,

George Camp,

Stephen Jones,

Appellee, Pro se,

For Appellee,

Robert D. Looney,

Sr.

For Appellee,

Wendell Wightman

For Appellee,

Thomas A.

Williams,

For Appellee,

James E. Work,

For Appellees,

James D. Funnell,

Harriet Funnell.

DOOLIN, J.

This is a consolidation of three

appeals brought by Appellants pro se in

the District Court of Oklahoma County.

The three causes consolidated and ruled

on below, include:

1) CJ-79-991, an action by Appel-

lants, Roberta Ann Funnell, individual-

ly and as administratrix of the estate

of David Allen Funnell, deceased, and

Donald Funnell, against Appellees,

Steven Jones and William R. Thompson,

for legal malpractice.

2) CJ-80-2351, an action by Appel-

lant, Roberta Ann Funnell against

Appellees James E. Work, George Camp,

Rick Chew, Robert D. Looney, Sr.,

Wendell Wightman and Thomas A.

Williams, also for legal malpractice.

3) CJ-80-4300, an action by Appellant

Roberta Ann Funnell as personal repre-

sentative of David Allen Funnell,

deceased against Appellees James D.

Funnell, Harriet Funnell, Jonathan

Burch, Edwin Whitney Burch and Jerry

Dick for fraud.

On September 13, 1982, the Honorable

Ray Lee Wall, sitting by special appoint-

ment, found and ordered that Appellants’

claims in 1) and 2) had been barred by

the applicable statutes of limitations,

and that Appellants’ claim in 3) had been

barred by a settlement agreement. There-

upon, the court sustained motions for

summary judgment in each of the three

actions in favor of the respective defen-

dants, and Appellants commenced this

appeal.

We find the trial covrt's findings and

orders to be correct in each instance.

We are unusually impressed with the

organizational ability, grasp and under-

standing of the appellant pro se, but the

fact that these lawsuits and their subse-

quent appeals were conducted pro se does

not, in any way relieve Plaintiffs/Appel-

lants of the responsibility to conform

their actions to the rules of pleadings,

evidence or appellate practice. We adopt

the rule stated by the Court of Criminal

Appeals in Bowen v. State, 606 P.2d 589

(Okl.Cr. 1980), and hold that a party

proceeding pro se in a civil action or a

civil appeal is to be held to the same

standards as an attorney.

The arguments in cases 1) and 2), are

founded on the Appellants’ belief that

the statute of limitations was tolled as

’

to her causes of action for legal malprac-

tice due to the fraudulent concealment of

wrongdoing by the attorney who allegedly

committed the wrongful acts; concealed by

an alleged conspiracy among the attorneys

subsequently consulted by Appellants to

prosecute the first attorney. Inasmuch

as Appellants' Petitions below allege no

acts constituting legal malpractice which

occurred during the two-year period

immediately prior to the filing of Plain-

tiffs’ initial Petition, some tolling of

the statutes must be proved to avoid the

finding that the actions were barred. To

this end, Appellants allege the theory of

tolling of limitation by concealment.

In Oklahoma, an action for malprac-

tice, whether medical or legal, though

based on a contract of employment, is an

action in tort and is governed by the

two-year statute of limitations at 12

O.S.A. 1981, §95 Third. (Seanor v.

Browne, 154 Okl. 222, 7 P.2d 627

(1932)). This limitation period begins

to run from the date the negligent act

occurred or from the date the plaintiff

should have known of the act complained

of. (McCarroll v. Doctors General

Hospital, 664 P.2d 382 (Okl. 1983)). The

period may be tolled, however, by conceal-

ment by the attorney of the negligent

acts which have injured the client. This

Court has previously held, in Kansas City

Life Insurance Co. v. Nipper, 174 Okl.

634, 51 P.2d 741 (1935) that:

"One relying on fraudulent

concealment to toll the statute of

limitation must not only show that

he did not know facts constituting

a cause of action, but that he

exercised reasonable diligence to

ascertain such facts."

10a

To specifically address the rule

stated in Nipper, we note that the record

reveals Appellant, Roberta Ann Funnell

was complaining of her first attorney,

James E. Work's alleged malpractice as

early as June, 1971. Even though she was

aware no action had ever been instituted

against him, for she waited almost ten

years to do anything about it. The pain-

ful conclusion to be drawn is her actual

knowledge in 1971 of the acts she alleges

constitute malpractice, shows there was

no concealment on the part of anyone

which would toll the statute of limita-

tions as to her cause of action against

Work.

Appellant, Roberta Ann Funnell, com-

plains each subsequent attorney was negli-

gent for not suing each preceding attor-

ney for not suing Work for negligence

lla

which allegedly occurred on or about

August 8, 1969. While this Rtindily be

"tacking" the negligence of one party

onto the negligence of another to create

a single, continuous tort, is original,

such argument is not persuasive to neces-

sitate the creation of a new doctrine of

limitations, for there is no allegation

that subsequent attorneys were acting as

joint tort-feasors.

If the action against Work was barred

by the statute of limitations, which we

find to be the case, then the succeeding

lawyers cannot be guilty of malpractice

for not filing an invalid lawsuit. The

liability of each successive lawyer must

be bottomed on his own, negligent act,

not on the original complaint.

Even assuming there are other allega-

tions against any of the attorney-Appel-

ids

lees which might be grounds for a cause

of action for malpractice, the petitions

filed by Appellants below do not allege

any such negligent acts occurring within

a two-year period immediately preceding

the filing, and such petitions are,

therefore, fatally defective on their

face and summary judgment lies.

In summary then, as to causes 1) and

2), supra, we find the two-year statute

of limitations is applicable to each; the

original petitions allege no act of mal-

practice occurring within the two-year

period immediately preceding its filing,

and the allegation that the statute of

limitation was tolled by concealment

fails because of Appellant, Roberta Ann

Funnell’s knowledge of the acts she com-

plains of as negligent. The trial court

committed no error in granting summary

judgment as to these causes.

13a

Appellants allege errors regarding

acts by attorneys employed subsequent to

the original lawyers. These allegations

on the merits however, may not be reached

when the trial court grants summary judg-

ment on the question of statute of limita-

tions. In order for the allegation of

malpractice to be considered such acts of

necessity must be committed within two

years of the acts complained of, or

within two years of discovery of such

acts.

The trial court's granting of summary

judgment in case 3) supra, was on other

grounds. This action alleges that on

June 28, 1978, Appellant, Roberta Ann

Funnell's sons, Donald Funnell and David

Funnell were induced by fraud and coer-

cion to execute a settlement agreement

and thus to terminate certain litigation

1, a

between themselves as plaintiffs and

Appellees James Funnell and Harriet

Funnell. David Funnell subsequently died

and Roberta Ann Funnell was appointed his

personal representative. Appellant seeks

to vacate the settlement agreement on

behalf of David Funnell's estate and

alleges he was coerced and defrauded into

signing by all the named defendants.

It is a settled rule in Oklahoma that

fraud is never presumed and where a writ-

ten agreement is attacked on the ground

of fraud, that agreement will be upheld

unless the allegations of fraud are estab-

lished by clear and convincing evidence.

(Steiger v. Commerce Acceptance Co., 455

P.2d 81 (Okl. 1969)).

It may be true that appellant has

rightfully set forth the elements of

fraud for the inducement of execution of

15a

settlement. What such allegations lack

is specificity, clarity and convincing-

ness for there seems little doubt the

adult sons of the appellant accepted the

proceeds of settlement under its terms.

The plain wording of the agreement

Says appellant's sons had full and com-

plete access to all the books and records

of the defendants and had satisfied them-

selves as to the truth and accuracy of

everything contained therein. On its

face, this document appears to be a fair

agreement, knowingly executed by the

parties to it and supported by adequate

consideration. Appellant's allegations

that it was procured by unlawful means

is, of course, within the realm of possi-

bility, but is not supported by properly

pled facts which rise to the standard

required to vitiate such an agreement.

16a

Also applicable here is the rule

stated in Tyler v. Hartford Insurance

Co., 195 Okl. 523, 159 P.2d 722 (1945),

which states:

"When a transaction is fairly

susceptible of two constructions,

the one which will free it from

the imputation of fraud will be

adopted.”

Appellant correctly points out that in

some limited instances involving fiduciar-

ies, the party in the fiduciary position

may be required to offer affirmative

proof that no fraud existed. (Looney v.

Chastain, 395 P.2d 571 (Okl. 1964).

While the relationship between David

Funnell and Donald Funnell and the named

defendants may have at one time been a

relationship of trust and confidence, at

the time the settlement agreement was

entered into, such relationship had been

severed as evidence by the fact that

17a

David Funnell and Donald Funnell had

instituted several lawsuits against the

other defendants. It is illogical to

suppose they would have sued the defen-

dants and yet have maintained a relation-

ship of trust as to the contentions which

were the subjects of the suits.

We hold that the trial court properly

granted summary judgment in cause 3).

The judgment of the trial court is

AFFIRMED.

SIMMS, C.J., and HARGRAVE and WILSON,

JJ., and POWERS AND MEANS, S.JJ., concur.

SUMMERS, J., and BRIGHTMIRE, S.J., concur

in judgment.

HODGES, J., not participating.

POWERS, MEANS and BRIGHTMIRE, S.JJ.

appointed in place of LAVENDER, OPALA and

KAUGER, JJ., who disqualified.

18a

IN THE SUPREME COURT

OF THE STATE OF OKLAIONA

Filed Supreme Court of Oklahoma October

28, 1985.

ROBERTA ANN FUNNELL, Indivi- )

dually and as ADMINISTRATRIX )

of the Estate of DAVID ALLEN) No.

FUNNELL, Deceased, and DONALD) 59205

FUNELL, )Conso-

Appellants, Jlidated

Ve )Under

STEPHEN JONES and WILLIAM R. )

THOMPSON, )

Appellees. )

and ;

ROBERTA ANN FUNNELL, ) No.

Appellant, ) 59204

v. ) Conso-

JAMES E. WORK, GEORGE CAMP, ) lidated

RICK CHEW, ROBERT D. LOONEY, ) With

SR., WENDELL WIGHTMAN and )

THOMAS A. WILLIAMS. )

Appellees. )

and )

ROBERTA ANN FUNNELL, ADMINIS-)

TRATRIX of the Estate of )

DAVID ALLEN FUNNELL, Deceased)

Appellant, )

Vv. ) No.

JANES D. FUNNELL and HARRIET ) 59212

FUNNELL, Individually and as )

Co-Trustees for DAVID ALLEN )

FUNNELL, JONATHAN BURCH, EDWIN)

WIITNEY BURCH and JERRY DICK,)

Appellees. )

19a

AMENDED PETITION FOR REINEARING

COMES NOW Appellant, Roberta Ann

Funnell (Ann), individually and as the

Administratrix of the Estate of David

Allen Funnell, Deceased (David) and

requests a rehearing and reconsideration

of this Court's opinion dated September

17, 1985, in the above styled and number-

ed causes. Said opinion is identical to

the Court's opinion dated January 15,

1985, except as to the participants.

Ann and David have filed a Motion

to Sever cause number 59,205 from the

consolidated appeals of which this Court

took notice in its Order of October 9,

1985. Said order treated Appellant's ap-

plication for extension of time to seek

rehearing as a timely petition for re-

hearing and allowed only until October

28, 1985 to amend and file a supporting

brief. Such brief with appendix is

20a

filed herein.

Appellants Ann and David do hereby

amend and adopt Appellant Donald Fun-

nell's Motion to Sever Cause (number 59,

205) from Consolidated Appeals and his

Petition for Rehearing filed October 7,

1985, along with the Brief of Appellant

Donald K. Funnell in Support of Petition

for Rehearing filed March 7, 1985.

This Court recalled its January 15,

1985 opinion by its Order of April 16,

1985 thus these are not second petitions

for rehearing. Ann and David further

adopt the aisle and authorities in

their Petition for Rehearing with its

attached affidavit and exhibits as set

forth in their brief in support thereof

filed Narch 7, 1985.

A copy of the application for exten-

sion of time described in paragraph two _

21a

Supra is attached hereto and amended in

the same order of its numbered para-

graphs to respectfullly and additionally

state as follows:

1. This Court disregarded its own

rulings holding that on a motion for sum-

mary judgment the appellate court must

consider all of the pleadings, affida-

vits and discovery materials filed in

the case in the light most favorable to

those opposing said motion. This fact

is evidenced by the pencilled margin

notes on a small part of the record as

set forth in the exhibits and affidavit

of Ann which are attached to the Peti-

tion for Rehearing filed larch 7, 1985.

Said notes made conclusions in disregard

of even the facts and allegations immedi-

ately following or adjacent to said

erroneous and unlawful conclusions.

22a

Thus this Court's members and appointed

Justices did not have the benefit of

knowing the true complete facts as they

relied on the mere conclusions of the

Court personnel,

This Court further disregarded the

holdings in the numerous federal case

citations interpreting Rule 56 of the

Federal Rules of Civil Procedure after

which this Oeste te Rule 13 of the Rules

for District Courts was patterned (al-

though not as clearly stated-parti-

cularly at the time appellants were

required to prematurely respond in the

fall of 1981). January 1982 Rule 13 was

expanded and changed.

2. This Court's erroneous conclu-

sions of fact, supra, were applied to

both the appeals (numbers 59, 205 and

59, 204) in total disregard of the clear

fact that David and Donald's cases of

action weie ietaee a factually dis-

tinct from Ann's. Said conclusions of

fact were contrary to the record as evi-

denced in part by documents in-the ap-

pendix of the brief in support of this

petition for rehearing and were made

without jurisdiction under the Oklahoma

Constitution.

3. This Court failed to address

the constitutional and civil rights

issues averred in the Petition in Error

and the Petition for Rehearing filed

March 7, 1985, and discussed in all

briefs of Ann and David.

4. This Court egregiously failed

to respond to Appellant's Notion for

Clarification of Non-Participation and

Disqualification and Request for :

Appointments So As To Comprise A Nine

Member Appeal Court filed April 22,

1985. This Court particularly dis-

regarded paragraph 10 of said Notion as

to Court members — famiiy members

who are or may be shareholders in the

Oklahoma Bar's own Professional

Liability Insurance Company and/or

insured thereby and affected by matters

relating to costs of any professional

liability insurance. Appellant called

on the conscience of the Court without

pointing fingers. However, it is now

known that, at least, the author of the

opinions herein, Mr. Justice Doolin, and

participating Madam Justice Wilson have

immediate family members who now prac-

tice law in this state. Appellant does

not know of all affected relatives of

other Court members (but they know).

Appellant had raised the issue of family

members of the Court members being af-

fected by the matters of legal malprac-

tice insurance costs in the Petition for

Rehearing filed March 7, 1985. There-

after only Mr. Justice Lavender disquali-

25a

fied and withdrew his concurring

Opinion.

This Court's opinion in these

cases, which revolves around a 50 year-

old medical malpractice case, demon-

Strates that this Court is unwilling to

apply the same principles of law and

logic of that and its later medical

malpractice decisions to its own sons,

daughters, husband, and brethern of the

Oklahoma Bar while usurping Legislative

power to give undue, and unlawful, favor

in matters directly affecting them finan-

cially. This Court was not impartial.

5. The opinion disregards the

averments of other abuses of civil

rights by the second trial court, Judge

Ray Lee Wall, particularly as to his

disregard of the fact there were many

missing material documents and his re-

questing only copies of briefs filed

after August 3l, — Instead of re-

viewing the entire record as is required

under motion for summary judgment. This

Court should take judicial notice of

said trial judge's eregious abuse of

legal procedures and law in the related

appeal number 62,658, which has provoked

a federal lawsuit that includes action

relating to the secreting of the docu-

ments, supra, and involves alterations

of the Court records.

This Court should take note that

the documents submitted by Ann at her

deposition in number 59, 204, which in-

cluded much of the Stephen Jones mate-

rials for 59, 205, were improperly re-

moved from the custody of the former

County Court Clerk by appellees Camp's

and Jones‘ counsel. There is incon-

Sistency in the document marking as some

of have the original numbered stickers

but many others have xerox copies of

exhibit numbers or _ at all. Appel-

lant remarked of this when she inventor-

ied the record in the office of the

Clerk of the Supreme Court, but as

Stated in her affidavit she did not have

time nor was she equipped to fully inven-

tory all the contents of what had been

three boxes of records. The full signi-

ficance of the inconsistency, supra, did

not become apparent until Ann learned of

the alteration of a court document re-

lating to Stephen Jones in the record of

appeal number 62, 658 as set forth in

her reply brief. Again it was Jones"

counsel who was improperly given access

to record.

Paragraphs 6 through 10 of the

Court designated Petition for Rehearing

referred to Ann's physical condition

needing additional time that undoubtedly

would be granted to any lawyer in simi-

lar circumstances. The Court disregard-

ed the orders of Ann's orthopedist in

28a

the continuing bias against pro se liti-

gants, particularly one suing brethern

lawyers. Ann's doctors, physiothera-

pists, fellow patients and associates

are outraged by this entire matter

particularly in light of the second

paragraph of number 4, supra. Ann at

this writing with red blurred infected

eyes and a dozen acupuncture needles in

her, which is all that even partially

alleviates pain, reiterates her belief

that Mr. Justice Doolin and this Court,

including all those appointed, should

review the entire record and opinion and

with an awareness of their own oaths and

conflicts of interest in view of all the

foregoing and/or any plan to resign and

enter private practice.

Appellant specifically submits the

Court egregiously abused the facts, law

and its discretion in equity in appeal

b : .

number 59, 212 29a

WHEREFORE, Appellant Roberta Ann

Funnell individually and as Administra-

trix for the Estate of David Allen

Funnell, Deceased, prays this Court

grant full rehearing, withdraw its

Opinion dated September 17, 1985, and

reverse the summary judgments granted by

the trial court.

(Roberta Ann Funnel] )

Roberta Ann Funnell, pro se

2306 S.E. 49th Street

Oklahoma City, OK 73129

(405) 670-1943

30a

IN THE SUPREME COURT

OF THE STATE OF OKLAHOMA

Filed Supreme Court of Oklahoma October

O,, 1985.

ROBERTA ANN FUNNELL, Indivi- )

dually and as ADMINISTRATRIX )

of the Estate of DAVID ALLEN) No.

FUNNELL, Deceased, and DONALD) 59205

FUNELL, yConso-

Appellants, Jlidated

Vv. Under

STEPHEN JONES and WILLIAM R. )

THOMPSON, )

Appellees. )

and )

)

ROBERTA ANN FUNNELL, ) No.

Appellant, ) 59204

Ve )} Conso-

JAMES E. WORK, GEORGE CAMP, ) lidated

RICK CHEW, ROBERT D. LOONEY, ) With

SR., WENDELL WIGHTMAN and )

THOMAS A. WILLIAMS. )

Appellees. )

and )

ROBERTA ANN FUNNELL, ADNINIS-)

TRATRIX of the Estate of )

DAVID ALLEN FUNNELL, Deceased)

Appellant, )

Vv. ) No.

JAMES D. FUNNELL and HARRIET ) 59212

FUNNELL, Individually and as )

Co-Trustees for DAVID ALLEN )

FUNNELL, JONATHAN BURCH,EDWIN)

WHITNEY BURCH and JERRY DICEK,)

Appellees. )

31a

APPLICATION OF APPELLANT ROBERTA

ANN FUNNELL FOR EXTENSION OF TINE TO

FILE FOR RENEARING

Comes now Appellant Roberta Ann

Funnell, Individually and as the

Administratrix of the Estate of DAVID

ALLEN FUNNELL, Deceased, and respect-

fully requests this Court for an exten-

Sion of time to file her application and

brief for rehearing of the above three

conseiidated woctedé in which an Opinion

was filed on September 17, 1985, and

shows the Court that:

1. These three consolidated

matters are appeals of granting motions

for summary judgment in favor of appel-

leas and the above Opinion does indicate

that not all of the record convering

over ten years of events, concealments

and misrepresentations was ever consi-

dered by this Court, although required

by law to do so.

32a

2. This Appellant is in two

different roles which according to said

Opinion has not been recognized with

particularity as to Appeal Bobbibe 59,

205. Thus this Appellant must address

to the very fullest this Court's mis-

Statements of facts, misquotations of

common law cases and disregard of

statutes.

3. Additionally there are serious

questions and issues of state and

federal constitutional and civil rights

which require considerable time and

research.

4. Appellant is having to appear

pro se as Oklahoma lawyers have a

conflict of interest or will not act

against their and their fellow lawyers’

interests as they are part of the lawyer

owned and operated legal malpractice

insurance group which was instigated by

this Court. 33a

5. Appellant is further

handicapped by an order of the first

trial judge, Honorable Merle Lansden,

that she could not consult with any

Oklahoma attorneys unless (s)he will

appear in court, and would consult with

said judge before doing so. This Court

refused to remove said judge although he

had been involved in other abuses of

civil rights of litigants and action was

pending against him when he was

assigned.

6. Appellant was in an automobile

accident and has: been under medical care

requiring that she restrict her activi-

ties as to use of her hands, arms and

neck. It has been determined that

Appellant will have a permanent disabi-

lity of the use of those elements if she

proceeds with pulling books off shelves,

page turning, typing and other activi-

ties which eae, anata and loss of

function. She cannot hire others to do

her legal research as law students will

not help pro se litigants and any others

would be considered breaking the law.

7. Appellant also is being treated

for a resistant infection in both eyes.

This is quite disabling.

8. - Attached are orders of appel-

lant's orthopedist to restrict her

activities for “another 60 days" or

until December 1, 1985, and continue

' physiotherapy which requires many hours

each day.

9. Appeliant respectfully submits

that the interests of justice would be

more fairly served if this Court grant

an extension of time until December 1,

1985, for this appellant to file her

petition for rehearing and brief.

During that time this Court thru Hr.

Justice Doolin could review the immense

consolidated records and ascertain the

35a

error of their factfinding. These cases

have great public interest and concern,

This Court should be given and take

every opportunity to rectify errors

which apparently came about due to

change of personnel and illness of the

Opinion writer, Hr. Justice Doolin.

10. To not grant the extension of

time would deny appellant the oppor-

tunity and right to present her consti-

tutionally guaranteed rights. Under

Miranda vs. Arizona, 384 U.S. 436, 86S.

Ct. 1602, 16 L. Ed. 694, there can be no

rulemaking which abrogate rights secured

by the Constitution,

(Roberta Ann Funnell)

Roberta Ann Funnell, pro se

2306 S.E. 49th Street

Oklahoma City, OK 73129

(405) 670-1943

36a

October 2, 1985

IN RE: Roberta Ann Funnell

TO WHOM IT MAY CONCERN:

Patient is to restrict activities

with hands, arms and neck for another 60

days from this date.

(H.d. Freede, M.D.)

H.J. Freede, M.D.

October 2, 1985

IN RE: Roberta Ann Roberts

Please extend physical therapy

treatment for another 60 days.

(H.J. Freede, M.D.)

Hi.J. Freede, N.D.

37a

IN THE SUPREME COURT

OF THE STATE OF OKLAHOMA

Wednesday, October 9, 1985

THE CLERK IS DIRECTED TO ISSUE THE FOLLOW-

ING ORDERS:

59,205 - ROBERTA ANN FUNNELL, et al. v

STEPHEN JONES and

59,204 - WILLIAM R. THOMPSON.

Appellant's application for extention

of time to seek rehearing is treated as

a timely petition for rehearing under

Supreme Court Rule 28. Appellant

allowed until October 28, 1985 in which

to amend the same, and file a brief in

support thereof. Extention of this

time limit not contemplated. Applica-

tion of appellants to sever these

consolidated appeals is noted.

(Robert D. Simms)

CHIEF JUSTICE

(FILED Supreme Court, State of Oklahoma,

Oct. 9, 1985 James W. Patterson, Clerk)

38a

IN THE SUPREME COURT

OF THE STATE OF OKLAHOMA

ROBERTA ANN FUNNELL, Indi-

vidually, and as ADMINISTRA-

TRIX of the Estate of DAVID

ALLEN FUNNELL, Deceased, and

DONALD FUNNELL,

Appellants,

No. 59,205

Vv. Consolida-

ted Under

STEPHEN JONES and WILLIAM R. No. 59,204

THOMPSON,

ee ee ee ee ee ee ee ee ee ee ee ee ee

Appellees.

MOTION TO SEVER CAUSE

FROM CONSOLIDATED APPEALS

Appellant, Roberta Ann Funnell, moves

the Court to sever the claims of Roberta

Ann Funnell individually and her claims

as Administratrix of the Estate of David

Allen Funnell, Deceased, against Appel-

lees Stephen Jones and William R.

Thompson in case No. CJ-79-991, Appeal

umber 59,205 from these consolidated

ippeals for the reason that her claims as

\dministratrix have been disregarded in

39a

case No. 59,205 and her individual claims

have been confused and overlooked in this

Court's Opinion filed September 17,

1985. Appellant is in two different and

conflicting positions and roles so that

such severance is required to allow the

Court to fully separate the factually and

legally distinct causes of actions and

give each separate consideration.

WHEREFORE, Appellant Roberta Ann

Funnell, individually and as Administra-

trix for David Allen Funnell, prays that

case No. 59,205 be severed from the con-

sclidated appeals.

(Roberta Ann Funnell)

ROBERTA ANN FUNNELL, pro se

2306 S.E. 49th Street

Oklahoma City, OK 73129

(405) 670-1943

(FILED Supreme Court, State of Oklahoma,

Oct. 4, 1985, James W. Patterson, Clerk)

©O

IN THE SUPREME COURT

OF THE STATE OF OKLAHOMA

ROBERTA ANN FUNNELL, Indi-

vidually, and as Administra-

trix of the Estate of DAVID

ALLEN FUNNELL, Deceased, and

DONALD K. FUNNELL,

)

Appellants, )

)

vs.

STEPHEN JONES and WILLIAM R.

THOMPSON,

Appellees.

ORDER

Appellant's motion to sever

consolidated appeals is denied.

No. 59,205

Consolida-

ted Under

No. 59,204

cause from

DONE BY ORDER OF THE SUPREME COURT IN

CONFERENCE THIS 13th DAY OF MAY, 1985.

(Robert D. Simms)

CHIEF JUSTICE

(FILED Supreme Court, State of Oklahoma,

May 13, 1985, James W. Patterson, Clerk)

IN THE SUPREME COURT

OF THE STATE OF OKLAHOMA

ROBERTA ANN FUNNELL, etc. )

et al., )

Appellants, )

v. ) (No.59,205)

)

STEPHEN JONES and WILLIAM R. )

THOMPSON, )

Appellees. )

and

ROBERTA ANN FUNNELL, )

Appellant, )

Vv. ) No. 59,204

) (consolida-

JAMES E. WORK, GEORGE CAMP, ) ted with

et al., ) numbers

Appellees, ) 59,205 &

59,212)

and

ROBERTA ANN FUNNELL, etc.,

Appellant,

Vv. (No.59,212)

JAMES D. FUNNELL, et al.,

Appellees.

ee ee eee ee ee ee

MOTION FOR CLARIFICATION OF NON-

PARTICIPATION AND DISQUALIFICATION AND

REQUEST FOR APPOINTMENTS SO AS

TO COMPRISE A NINE MEMBER APPEAL COURT

Comes now Appellant Roberta Ann

Funnell and respectfully moves the Honor-

L2a

able Court for clarification of its mem-

bers who are disqualified and/or intend

to not participate in the decision on the

Petitions for Rehearing of Appellant

Donald K. Funnell and this Appellant, as

an individual and as Administratrix,

filed in the above styled consolidated

causes. This Appellant further respect-

fully requests that appointments be made

to the Honorable Appeal Court so that a

full nine member Court will hear this

matter for which Appellant Donald K.

Funnell has requested oral argument.

Appellant shows the Court as follows in

support of the above:

1. This Appellant in her role as Admin-

istratrix has adopted the Petitions, argu-

ments and briefs of Donald K. Funnell.

2. The opinion promulgated herein on

January 15, 1985 prejudiced this Appel-

43a

lant in her position as Administratrix as

set forth in her Petition for Rehearing

and Brief in Support thereof and in Appel-

lant Donald K. Funnell's Petition for

Rehearing and supporting Brief which are

adopted by this Appellant.

3. This Appellant believes it is neces-

sary for a full court to hear the argu-

ments of Appellant Donald K. Funnell to

clarify the issues of these consolidated

matters in which this Appellant is in

_q@ifferent and even possibly conflicting

roles.

4. The Honorable Mr. Justice Robert E.

Lavender referred only to this Appel-

lant's Petition for Rehearing in his

Recall of Vote and Disqualification filed

April 10, 1985.

5. The opinion referred to in para-

graph two (2) supra noted that the Honor-

LL a

able Justices Barnes, Opala and Kauger

disqualified and described the Honorable

Mr. Justice Hodges as "not

participating.”

6. The Assignment Order filed herein

on April 16, 1985, assigned replacements

for only Justices Lavender, Opala and

Kauger.

7. The Order Recalling Opinion filed

April 16, 1985, gave as reason “the

opinion now has but four concurrances."

8. This Appellant respectfully sug-

gests that the foregoing gives the appear-

ance that it could be the intention of

this Honorable Court to find a fifth con-

curring opinion and not present the

matters to a full nine member Court.

9. That as demonstrated in this Appel-

lant's Petition for Rehearing, Mr.

Justice Hodges did participate in these

45a

matters by requesting and receiving a

transcript from the record and said tran-

script later noted underlinings of oral

argument made by counsel for

attorney/appellees Stephen Jones, George

Camp, Jonathan Burch and Edwin Whitney

Burch. Appellant noted it is improper to

consider oral arguments of counsel as

these cases are appeals from granting of

motions for summary judgment and only

sworn testimony should be considered.

Appellants had submitted sworn affidavits

contradictory to the unsworn statements

of said counsel. The foregoing gives the

appearance of bias in favor of attorney

litigants and their counsel.

10. As noted in this Appellant's Peti-

tion for Rehearing, members of this Court

are involved in the instigation of an

Oklahoma Bar Professional Liability Insur-

Léa

. =o

ance Company. Court members have family

members who are or may be shareholders in

said Company and at any rate are or could

be affected by matters relating to costs

of any professional liability insurance.

Appellant has called on the conscience of

this Court and reiterates same, particu-

larly as to any bias against pro se

litigants.

11. These consolidated cases have rami-

fications to all the people of Oklahoma

who have subsequent dealings with members

of the Oklahoma Bar Association and who

are or may be beneficiaries of trusts.

There are constitutional questions

involved which deserve the fullest

consideration.

12. This Appellant respectfully sub-

mits that the Court members who are dis-

qualified, should be disqualified or have

47a

indicated “not participating" should cer-

tify their disqualification so that a

full nine member Court can be appointed,

hear oral argument and decide these

matters in the interest of justice and

appearance thereof.

(Roberta Ann Funnell)

ROBERTA ANN FUNNELL, pro se

2306 S.E. 49th Street

Oklahoma City, OK 73129

(405) 670-1943

(FILED Supreme Court, State of Oklahoma,

Apr. 22, 1985, James W. Patterson, Clerk)

48a

IN THE SUPREME COURT

OF THE STATE OF OKLAHOMA

ROBERTA ANN FUNNELL, et al.,

Appellants,

STEPHEN JONES, et al.,

Appellees.

and

ROBERTA ANN FUNNELL,

Appellant,

JAMES E. WORK, et al.,

Appellees,

and

ROBERTA ANN FUNNELL, et al.,

Appellant,

Vv.

JAMES D. FUNNELL, et al.,

Appellees.

ASSIGNMENT ORDER

)

No. 59,204

[Cons. w/

59,205

& 59,212)

Pursuant to the authority vested in me

by Art. VII, § 6, Okla. Const., the fol-

lowing are hereby assigned to the Supreme

Court to sit in and decide the above

styled and numbered cause:

HONORABLE DONALD POWERS (For

Lavender, J.)

HONORABLE WILLIAM M. MEANS (For

Opala, J.)

HONORABLE PAUL BRIGHTMIRE (For

Kauger, J.)

DONE BY ORDER OF THE SUPREME COURT

THIS 16th day of April, 1985.

(Robert D. Simms)

CHIEF JUSTICE

(FILED Supreme Court, State of Oklahoma,

April 16, 1985 James W. Patterson, Clerk)

90a

IN THE SUPREME COURT

OF THE STATE OF OKLAHOMA

ROBERTA ANN FUNNELL, et al.,

Appellants,

Vv.

STEPHEN JONES, et al.,

Appellees.

and

ROBERTA ANN FUNNELL,

Appellant,

Vv.

JAMES E. WORK, et al.,

Appellees,

and

ROBERTA ANN FUNNELL, et al.,

Appellant,

Vv.

JAMES D. FUNNELL, et al.,

Appellees.

)

er ee ee ee eee ee ee ee

No. 59,204

{[Cons. w/

59,205

& 59,212)

ORDER RECALLING OPINION

The opinion promulgated herein on

January 15, 1985, and appearing at 56 OBJ

136, is Ordered Recalled for the reason

the opinion now has but four

concurrances.

DONE BY ORDER OF THE SUPREME COURT

THIS 16th day of April, 1985.

(Robert D. Simms)

CHIEF JUSTICE

(FILED Supreme Court, State of Oklahoma,

April 16, 1985, James W. Patterson,

Clerk)

52a

IN THE SUPREME COURT

OF THE STATE OF OKLAHOMA

ROBERTA ANN FUNNELL,

INDIVIDUALLY AND AS

ADMINISTRATIX OF THE

ESTATE OF DAVID ALLEN

FUNNELL, DECEASED, AND

DONALD FUNNELL,

Appellants,

Vv.

STEPHEN JONES AND WILLIAM

R. THOMPSON,

Appellees.

and

ROBERTA ANN FUNNELL,

Appellant,

JAMES E. WORK, GEORGE CAMP,

RICK CHEW, ROBERT D. LONNEY,

SR., WENDELL WRIGHTMAN, and

THOMAS WILLIAMS,

. Appellees.

and

ROBERTA ANN FUNNELL, ADMIN-

ISTRATIX OF THE ESTATE OF

DAVID ALLEN FUNNELL,

DECEASED,

53 a

— er ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee eee ee eee ee ee ee ee Se ee ee ee ee te

FILED

SUPREME

COURT

STATE OF

OKLAHOMA

APRIL 10,

1985

JAMES W.

PATTERSON,

CLERK

No. 59,204

(Cons. w/

59,205 &

59,212)

Appellant,

Vv.

JAMES D. FUNNELL and HARRIET

FUNNELL INDIVIDUALLY AND AS

CO-TRUSTEES FOR DAVID ALLEN

FUNNELL; JONATHAN BURCH,

EDWIN WHITNEY BURCH and

JERRY DICK,

weet ee ee ee ee ee ee ee eee ee”

Appellees.

RECALL OF VOTE AND DISQUALIFICATION

I, the undersigned Justice of this

Court, do hereby recall my concurring

vote for the Court's opinion of January

15, 1985, 56 OBJ 136, which opinion is

now pending before the Court on Appellant

Roberta Ann Funnell's petition for rehear-

ing. I do hereby further certify my dis-

qualification from any further participa-

tion in the above styled causes.

DATED THIS 10th DAY OF APRIL 1985.

(Robert E. Lavender)

ROBERT E. LAVENDER

JUSTICE

Sha

IN THE SUPREME COURT

OF THE STATE OF OKLAHOMA

Filed Supreme Court of Oklahoma March 7,

1985 .

ROBERTA ANN FUNNELL, Indivi- )

dually and as ADMINISTRATRIX )

of the Estate of DAVID ALLEN) No.

FUNNELL, Deceased, and DONALD) 59205

FUNELL, )Conso-

Appellants, Jlidated

Vv. Under

STEPHEN JONES and WILLIAM R. )

THOMPSON, )

Appellees. )

and )

: )

ROBERTA ANN FUNNELL, ) No.

Appellant, ) 59204

v. ) Conso-

JAMES E. WORK, GEORGE CAMP, ) lidated

RICK CHEW, ROBERT D. LOONEY, ) With

SR., WENDELL WIGHTMAN and )

THOMAS A. WILLIAMS. )

Appellees. )

and )

ROBERTA ANN FUNNELL, ADMINIS-)

TRATRIX of the Estate of )

DAVID ALLEN FUNNELL, Deceased)

Appellant, )

Vv. ) No.

JAMES D. FUNNELL and HARRIET ) 59212

FUNNELL, Individuaily and as )

Co-Trustees for DAVID ALLEN )

FUNNELL, JONATHAN BURCH,EDWIN)

WHITNEY BURCH and JERRY DICK,)

Appellees. )

55a

PETITION FOR REHEARING

COMES NOW Appellant, Roberta Ann

Funnell (Ann), Iniividually and as the

Administratrix of the Estate of David

Allen Funnell, Deceased (Administra-

trix), in the above entitled causes and

very respectfully represents to the

Court that on the 15th day of January,

1985, a decision was rendered by this

Court in the above entitled causes,

setting forth, among other things, that

this Appellant was not entitled to

relief in said causes, based on the

general rules that: 1.) the running of

the "statutes of limitations" against

her cause of action against Appellee

James E. Work nullified actions based on

the acts of all subsequent attorneys

employed by Roberta Ann Funnell, David

Allen Funnell and Donald Funnell; 2.)

that the eects: filed by Appellants

56a :

below do not allege any (other) negli-

gent acts occuring within a two-year pe-

riod immediately preceding the filing"

3.) the allegation failed that the statu-

te of limitations was tolled by conceal-

ment because of Appellant Roberta Ann Fu-

nnell's knowledge, presumed, of the acts

of Work; 4.) Appellant as Administratrix

had not properly pled facts to vitiate

the settlement agreement obtained by the

Trustee and their lawyers; 5.) and that

parties appearing pro se were held to

the same standards as an attorney.

Appellant Roberta Ann Funnell, Indi-

vidually and as Administratrix respect-

fully requests the Court for and is enti-

tled to a rehearing and reconsideration

of the Court's opinion and that this

Court grant this appellant the relief

prayed for in her original Petitions-in-

error filed herein, which is that this

57a.

Court find as a matter of law that Ap-

pellant's claims are not barred or that

in the alternative there are facts relat-

ing to the statute of limitations and fr-

audulent concealments which only a jury

can decide, and for an order remanding

with directions to allow full discovery,

followed by a jury trial of these cases

involving attorney malfeasance, fraud

and breach of contract.

It is respectfully submitted by

this Appellant in both of her capacities

that the decision described supra is con-

trary to the law and evidence in the ca-

ses and that the Court further failed to

consider numerous points of law and fact

urged by Appellant which points are set

forth in more particularity as follows:

58a

THE SUPKEME COURT OF OKLAIIONA DE-

NIED APPELLANT ROBERTA ANN FUNNELL

DUE PROCESS AND EQUAL PROTECTION OF

THE LAWS WIIIC! COULD NOT BE ANTICI-

PATED PRIOR TO THE DECISION RENDER-

ED ON THE 15th DAY OF JANUARY,1985.

A. Appellant appearing pro se was

improperly held to the same standards as

an attorney;

1.) Despite United States Supreme

Court unanimous rulings and Federal

Court rulings that courts are obligated

to apply less stringent standards to pro

se complaints, to be sensitive to

problems of pro se litigants and to

protect pro se litigants.

2.) Despite Oklahoma Statute, Title

12, section 78, and the numerous prior

rulings that the Supreme Court is requ-

ired to disregard any error or defect

which does not affect the substantial

rights of the adverse party.

59a

3.) Despite the facts that these

cases were actions against attorneys and

Appellant could not find an attorney

willing to prosecute other attorneys

with only one short-lived exception who

discovered he had a "conflict of

interest". And that the Oklahoma

Supreme Court along with the Oklahoma

Bar Association has instigated an

inquiry into matters relating to

lawyer's professional liability insur-

ance premiums resulting in subscriptions

having been obtained from the Oklahoma

lawyers to fund a holding company for

their own Professional Liability Insur-

ance Company. Thus Oklahoma lawyers

have a vested interest to either not

handle attorney malpractice cases or to

mishandle them so that the client has no

chance to recover damages. A copy of an

60a

Order of June 21, 1978, by then-Chief

Justice Ralph B. Hodges is attached here-

to and incorporated herewith as Exhibit

l. <A copy of a letter from then-Presi-

dent of the Oklahoma Bar Association,

Leslie L. Conner, Jr., as printed in the

Oklahoma Bar Journal, Vol 51, No. 9, of

March 1, 1980, is attached hereto and

incorporated herewith as Exhibit 2.

4.) Despite the fact that the pro se

litigant in Bowen v. State, 606 P.2d

589, the cases cited by this Court,

could have "standby counsel” burt

this Appellant was denied the right to

even talk to an attorney at a very cri-

tical point in the litigation. It is in

the record that the Honorable Merle Lans-

den, the trial judge first appointed by

then-Chief Justice Robert Lavendar who

is a friend and former campaigner with

Appellee Stephen Jones, ordered that

61a

Appellant could not discuss her cases

with any Oklahoma attorney UNLESS SAID

ATTORNEY TALKED WITH THE JUDGE and came

into the court so that said judge could

“look him in the eye". Judge Lansden

stated he "just wanted to get rid of

this thing" in reference to the Appel-

lants' suit against Jones and Williaa R.

Thompson, and this Appellant's intended

actions against the other attorney/ ap-

pellees. This Court twice denied ap-

plications to disqualify Judge Lansden.

5.) And that due to the foregoing,

Appelllant was denied her right to me-

aningful access to the courts guaranteed

under the United States Constitution

Amendments Five and Fourteen, which also

assure the right to consult privately

with counsel at one's own expense even

if the proceeding is wholly civil.

62a

6.) And that under Miranda v.

Arizona, 384 U.S. 436 at 491, S. Ct.

1602, L. Ed2d 694, this Court could not

make rules whch abrogate Appellant's

constitutional rights nor make rules

contrary to the modern practice to liber-

alize the rules of pleading and when the

Oklahoma Legislature has acted in a de-

finitive manner. Further this Court's

rules are not always clear and defini-

tive as required under due process.

7.) And that by this Court's

foregoing acts and inter alia involving

itself with the legal malpractice insur-

ance matters of the Oklahoma lawyers,

yet failing to upgrade the ethics code

for lawyers to the national standards,

then arbitrarily and capriciously making

a rule to hold pro se litigants to the

standards of attorneys as to pleadings

and other rules, the result would be in-

vidious discrimination against this pro

63a

se litigant unless said rule is set

aside and the rules under the foregoing

items one (1), two (2) and six (6) are

applied by a disinterested and impartial

tribunal.

The discrimination would also be

against an entire class of persons who

are former, present or potential clients

of Oklahoma lawyers and who have or have

good cause to bring legal malpractice

actions against Oklahoma lawyers, parti-

cularly whree they have exhausted their

funds due to the negligence and/or

misconduct of the lawyers they hired.

B. By not equally applying the

laws regarding written or oral contracts

Appellant's property right of enforce-

ment of a written contract was arbitrar-

ily and capriciously taken away.

1.) This Court has previously en-

forced contracts between lawyers and

their clients. Yet this Court by fiat

64a

nullified the Appellants' written con-

tracts made by and with attorney Stephen

Jones in 1972 thenremade in 1973 to

inter alia bring a suit in behalf of

David and Donald Funnell involving

trusts and life insurance policies.

Jones also contracted to challenge the

probate of Joseph W. Funnell's estate to

recover all amounts that were depleted

to defeat all the Appellants' claims as

creditors and to prosecute a suite by

Ann against Harriet and James D. Fun-

nell. Jones did not file to timely

recover the estate depletions and did

not sue and serve the Trustees of the

trusts, but he concealed from Appellants

the fact that he let the statutes run,

as set forth in Appellants' original and

65a

amended petitions with numerous exhi-

bits and affidavits filed in their

action against Jones and William R.

Thompson, who was hired by David and

Donald on April 2, 1977, to inter alia

investigate Jones’ handling of their

suit.

Appellants were notified of Jones'

breachs of contracts when they received

Jones' letter dated March 25, 1977,

stating he no longer considered himself

Ann's attorney. The contracts required

that Jones had to withdraw from all

cases if he withdrew from one. The

Appellants' lawsuit was filed on March

12, 1979, and was within even the two

year statute of limitations declared by

this Court which is contrary to the laws

of Oklahoma regarding contracts. Jones

failed to appear at pretrial on April Fe

1977 regarding David and Donald's case

causing it to be dismissed. Jones speci-

66a

fically contracted to keep all the cases

in good standing but did not do SO, as

alleged.

Jones also specifically contracted

to keep Appellants "fully advised", to

furnish copies of "all memorandums,

letters, reports and pleadings", and to

advise in writing of any omissions or

misconduct of Appellants’ prior

attorneys. It was alleged and demon-

Strated that Jones received documents

vital to Appellants" cases but con-

cealed them. Particularly Jones conceal-

ed an assignment of a life insurance

policy to Ann from Joseph Funnell, which

had been separated from the policy re-

ferred to as "attached" in the assign-

ment. It had been written by Appellee

James E. Work but did not identify the

"attached" policy. Work did not notify

Ann of the assignment and did not keep

67a

custody of the “attached" life insurance

policy.

From the circumstantial evidence

Work apparently had relied on Ann's

second attorney, Appellee George Camp,

to advise her regarding the policy and

assignment but Camp did not do so. Camp

admitted going through Ann's files in

Works's office and Work later conm-

plained about an attorney removing

"things" but never responded to ques-

tions about it. Camp became very hos-

tile to Ann when she obtained her tax

records, which had been ordered returned

to her by the court, as Camp had been

holding them as a lien to obtain fees

above an agreement. Camp later sued Ann

which Jones "defended". The assignment

was discovered in August 1979 after some-

one in Jones’ office had sent it to Ann

amidst the Camp file and after Ann had

made complaint veal vg Oklahoma Bar Asso-

8a -

ciation to recover her files from

Jones. Work, Camp and Jones failed and/

or refused to answer Ann's Interro-

gatories and filed their premature

motions for summary judgment but no

affidavits in support and contrary to

the rule and law.

2.) Contrary to Oklahoma Statutes,

Title 12, section 95 Third, this Court

declared that "In Oklahoma, an action

for malpractice, whether medical or

legal, through based on a contract of

employment, is an action in tort and is

governed by the two-year statute of

limitations at 12 0.S.A. 1981, section

95 Third." Said statute reads, "Civil

actions other than for the recovery of

real property can only be brought within

the following periods. After the cause

of action shall have accrued, and not

afterwards: Third: Within two (2) years;

An action for trespass upon real

69a -

property; an action for taking, detain-

ing or injuring personal property,

including actions for the specific

recovery of personal property; an action

for injury to the rights of another, not

arising on contract, and not hereinafter

enumerated; an action for relief on the

ground of fraud-the cause of action in

such case shall not be deemed to have

accrued until the discovery of the

fraud." (emphasis added). The said

statute reads at First. “Within five (5)

years: An action upon any contract,

agreement or promise in writing." The

said statute reads at Second. "Within

three (3) years: An action upon a

contract express or implied not in

writing...

This Court cited Seanor v. Browne,

154 Okl. 222, 7 P.2d 627 (1932). Seanor

did not apply a two year limitation but

instead it applied oer" year statute

of limitations where a physician had

orally contracted and agreed to "care-

fully and skillfully attend er

and cure” an injury. This Court appears

to have read only a misleading headnote,

which mentioned only the word

"malpractice". No less an authority than

the Federal Court in Royal Crown Cola

Bottling Co. v. Aetna Casualty & Surety

Co., 438 F. Supp. 39 (W.D. Okl. 1977)

said that neither the Oklahoma Supreme

Court nor any other Oklahoma Court has

addressed the specific issue of which

Statute of limitations is applicable to

legal malpractice.

Jones' contract dated June 8, 1973

specifically agreed to “perform to the

best of our professional ability..." in

addition to specifically contracting as

Stated supra. The five-year statute must

apply as designated by the Oklahoma

71a

Legislature, particularly in light of

Seanor.

3.) This Court's opinion reduced

the record to a few conclusory state-

ments and failed to state the facts on

which the decision was based. The Court

admitted drawing a conclusion as to

Appellant Ann's knowledge in June 1971,

which is a fact regarding her state of

mind and which only a jury should deter-

mine based on the full tacts. Under this

Court's own rulings on motions for sun-

mary judgment no fact determinations can

be made. The imputed knowledge had no

bearing on the actions against Jones and

Thompson nor much against Thomas

Williams.

That the opinion involved conjec-

ture is demonstrated by pencilled notes

mades on the documents in the record by

whoever abstracitd the record. Said

notes indicate leaping on words without

72a

due consideration of all facts presented

in the record on motions for Summary

judgment and imputing legal knowledge to

Ann, particularly on the original peti-

tion in the action against Stephen Jones

and William R. Thompson. Ann's affidavit

with its attached Exhibits "A" through

"H" is attached hereto as Exhibit 3.

Said affidavit and its exhibits are

hereby adopted and incorporated herein

by reference as though set out word for

word. The Exhibits "A" through "H" are

copies of certified copies of notations

found on documents in the record which

Ann examined in the office of the Clerk

of the Supreme Court by Order of this

Court. The affidavit sets forth the

content of the pencilled notes which did

not clearly copy in the Clerk's office.

A close examination of the docu-

ments supra discloses that this Court

concluded wrongly on paragraph 2 of R-2

73a

that "client had knowledge of S of L as

to action on ex-husband's Trust on Life

Insurance policies 1-15-72" Logically

assuming that "S of L" refers to statute

of limitations, it is wrongfully imput-

ing legal knowledge to Ann who had mere-

ly said she "expressed her concern that

the statutes of limitations were run-

ning", which the abstractor underlined.

Ann's concern was logical in view

of the facts that the Trust had been in

force nearly a year, that she was the

legal guardian for David and Donald

appointed on October 27, 1971, nearly

three months prior and had been led to

believe that the trust was to be broken

through an action in court which may

have required filing within the three

months. This state of her mind is sup-

ported by Appellee Wendell Wightman's

letter/contract R1073 dated June 28,

1971, at item #3 which states, "Enter

7ha

probate as creditor and challenge the

will and trust." Further, Wightman's

letter of January 14, 1972, in Exhibit

#91 of Ann's deposition, stated she had

to take some action soon regarding David

and Donald's interests. It is in the

record that Wightman was writing the

insurance companies and gave no speci-

fics as to how he would break the trust,

whether by suing them or however.

Also by R1073 supra next to last

paragraph, Ann was advised that item #3

Supra included her own action as well as

David and Donald's (the boys), as to

challenging the Life Insurance Trust.

Ann's belief that she, David and Donald

were to challenge said Trust carried

over to her first contract with Jones on

January 24, 1972, as can be inferred

from paragraph 10 of R-3, as well as the

contract, R18-20 and Exhibit A to R159-

165. Jones advised that he had "checked

75a

with an 0.U. law professor and there was

still time to act on the insurance poli-

cies." Ann relied on Jones as her legal

advisor.

The abstractor's next wrongful

conclusion was that Ann “had knowledge

of Work's actions 6-28-71", which is

written in the margin at paragraph 3 of

R-2 of the original petition against

Jones. She was stating that at the

times she consulted with Jones she had

said she had owned certain policies

scheduled in the Life Insurance Trust

but Work had required her to sign over

the ownership and she had done so in the

belief that a diminishing term policy

"was being turned to her", and the other

policies were going to benefit her sons

(David and Donald). Ann further told

Jones that Work had failed to advise the

judge in the divorce case that she owned

the named policies ane that Wightman had

Stated before he was hired June 28, 1971

(date of his contract/letter supra),

"that the judge could not have properly

interferred with a third-party contract

and required Plaintiff (Ann) to sign

these policies over to Joseph W. Fun-

nell, but Wightman took no action and

quit January 14, 1972." The abstractor

and Court disregarded the rest of the

record contrary to rules and law.

Wightman had induced Ann to pay

him several thousand dollars to initiate

the attack on the life insurance trust

(which he did not do) by steering her

away from any wrongdoing by Work and

Saying that the judge had taken a false

Statement to conceal his own wrongful

conduct. The proper solution, per Wight-

man was to attack the trust. Wightmank

further advices as to the misconduct of

the judge and breaking the trust are in

the transcription of a taped telephone

77a

conversation between Ann and Wightman

which is part of her affidavit R420-

443. At R1064 Wightman had positively

advised Ann there was no wrongdoing by

Work. At that time Ann relied on

Wightman's statements.

Jones then eventually advised Ann

there might be a conflict of interest if

she, David and Donald all attacked the

Trust and that she could not have owned

the life insurance policies (R461). The

record shows the latter was the same ad-

vice given by Ann's prior attorneys,

Work, Camp, Rick Chew and Robert D.

Looney, Sr. Ann had particulalry relied

on Looney who was older and a longtime

church friend. She had a right to rely

on all these attorneys. Wightman and

Looney's misadvice had assured Ann she

would collect from the estate.

78a

Thus this Court's conclusion that

Ann had "actual knowledge in 1971 of the

acts she alleges constitute malpractice,

shows there was no concealanns 0 the

part of anyone which would toll the

Statute of limitations as to her cause

of action against Work" (opinion page

4,) simply is illogical. Obviously the

Court's conclusion is that her actual

knowledge arose when Wightman made the

remark at P3,R2 then all the other

lawyers had to have done something to

conceal as there is considerable evi-

dence that Ann was asking every one of

them about the life insurance policies

before and after the said remark.

4.) The Court was picking and choo-

Sing the allegations as the opinion

states Ann "complains each subsequent

attorney was negligent for not suing

Work for negligence which allegedly

occurred on or about August 8, 1969."

79a

That date was never mentioned in the

original or first amended petition which

causes of action revolved around Work's

failure to advise the Court about the

insurance policy ownerships and had

failed to allege the insurance in the

Motion for New Trial then he and the

subsequent attorneys had concealed that

he was requried by law to set forth the

insurance matters for them to be consi-

dered. It was in the Second and Third

Amended Petitions that August 8, 1969

was stated in relation to the conceal-

ment of the assignment as set forth

supra, and when Work wrongfully advised

Ann could not own the Crown and Phoenix

policies. Ann's first allegations of

fraud were incomplete.

The abstractor had made one nota-

tion on the original petition regarding

the action against Chew stating, "if

Work's action were poeeetat until Dec.

iii it

"79 how can (Plaintiff) allege that Chew

should ahve known of them in 1970?" That

was answered in the Third Amended Peti-

tion as Chew had worked for Work's firm

during the time Ann was their client.

Ann never alleged Work's action was con-

cealed from the attorneys but their neg-

ligence was concealed from Ann. The in-

adequacy of Work's handling of matters

should have been apparent.

And the picking and choosing al-

legations could not be more apparent

than in the handling of David and

Donald's causes of action against Jones

and Thompson. The Court's opinion that

"the petitions filed by Appellants below

do not allege any such negligent acts oc-

curing within a two-year period immedi-

ately preceding the filing” is simply

not true. By the abstractor'’s own hand

it was noted at R3 that the pretrial was

on "4-7-77" where it was alleged "that

8la .

because of Jones negligence and failure

to appear at pretrial, case CJ-73-2024

was dismissed. " (The numerous questions

of "When?" made on the petition were

answered in the amended petitions and in

affidavits). The abstractor even noted

"“oncealment?" several times. The

allegation of failure to appear at

pretrial was made again at R14 with the

date April 7, 1977. The allegations of

the breachs of contracts by the letter

of March 25, 1977, were arbitrarily

disregarded by the abstractor in his

notes at R139 that "Letter/withdrawal

does not constitute act of malprac-

" It was however a breach of

tice...

contracts.

Further that the opinion is not

true as to no negligent acts alleged

within two years is the action against

Thomas A. Williams, who was added as a

Defendant by the Amended Petition filed

March 4, 1981. At R392 Ann alleged that

"on the advice of Defendant, Plaintiff

wrote an action against Stephen. Jones

and Defendant read Plaintiff's Petition

before it was filed as case CJ-79-991.

Defendant advised that the Petition

would be timely if filed by March 12,

1979." Also at R392 Annalleged that

Williams had advised her on March 5,

1979 that a Fifth Amended Petition in CJ-

71-2464 would be timely if filed on

March 5, 1979 to add new defendants, and

that contrary to law Williams advised

her that once the Amended Petition was

filed it did not matter when the summons

was served. Obviously all that was with-

in the two year time and according to

this Court's requirement on the negli-

gent act and not when damages occur,

which is contrary to common law. Ann

asked leave to amend the Petition and

83a

should be allowed to do so to show her

damages.

The abstractor's picking at allega-

tions is apparent at R181 where in an

amended petition Ann alleged she discov-

ered in August of 1979 there was a cause

of action against Jones himself for

fraudulent concealment of a cause of

action. The abstractor noted "but she

sued him in March 1979." Prior allega-

tions had been that Jones had concealed

a cause of action against Work. The new

allegation was against Jones himself for

fraudulent concealment of a cause of

action because Jones concealed his own

misconduct, referring to the insurance

assignment Supra.

This Court's opinion failed to

state the allegations by describing the

actions 1) CJ-79-991 and 2) CJ-80-2351

as only for legal malpractice when they

were for fraud and CJ-79-991 for breachs

8La

of contract. Action 3) CJ-80-4300 was

described as for fraud only when the

coercion was the major issue as to how

the settlement agreement was obtained.

In the opinion at page 3, para-

graph 4 the wrongful conclusion was

drawn that "The arguments in cases 1)

and 2) are founded on the Appellants’

belief that the statute of limitations

was tolled as to her causes of action

for legal malpractice due to the fraudu-

lent concealment of wrongdoing by the

attorney who allegedly committed the

wrongful acts; concealed by an alleged

conspiracy among the attorneys subse-

quently consulted by Appellants to pro-

secute the first attorney." (emphasis

added) Thus clearly this Court chose to

ignore the allegations against Jones and

Thompson made by the Administratrix and

Donald, although Causes of action Six

through Nine of the original Petition,

85a

copy attached hereto in the affidavit,

are clearly their actions, as they are

described inparagraph 2 at the beginning

of the Petition and realleged starting

at the Sixth Cause and through the Ninth

cause. All the amendments thereafter

clearly set forth David and Donald's

causes. The original petition was

abandoned.

Ann never alleged "conspiracy

among the attorneys subsequently con-

sulted by Appellants to prosecute the

first attorney". It was alleged that the

attorneys subsequent te Work had their

own conflicts of interest not disclosed

and each did their own damages by con-

cealing Ann's legal position from her.

They were not alleged to be "joint tort-

feasors™ because Ann never considered

them as such and it would be contrary to

Oklahoma law to have so alleged. Obvi-

ously David and —— never consulted

anybody to prosecute Work. If the Court

was trying to refer to the Jones, Thomp-

son, and Williams conflicts of interest

then there was collusion, apparently .

as to concealing Jones own wrongdoing in

claiming he had filed to recover all the

trusts benefitting David and Donald but

concealed the he had failed to name, sue

and serve the trustees and concealed

that he could not have added them in a

timely manner when he assured he would

sue the First National Bank after he got

all the papers and when he claimed the

petition could be amended up to trial,

all of which is in the record.

The Court's summary is seriously

flawed as to causes 1) and 2) as the two-

year statute should not have applied to

each, the original petitions did allege

acts within the two year period preced-

ing "its" filing or fraudulent conceal-

ment was alleged, the statute was tolled

87a

iii aacaacaela aa ll

because Ann had no knowledge that any of

the acts were negligent because of the

misadvice of all the attorneys. The

petitions were amended and the facts,

law and justice support those

amendments.

5.) The Court disregarded that

Appellees James E. Work and Stephen

Jones had made special oral contracts

which under Seanor, supra requires a

three-year statute of limitations. Work

had promised to obtain insurance to

cover Ann's judgments in the divorce

policy in the assignment, allowed the

policy to leave his custody, and impro-

perly relied on Ann's second attorney to

notify her. Under Seanor the statute of

limitations ran seven months after Jones

became the legal advisor for Ann. Jones

had requested all the divorce case docu-

ments. He was told by Ann that she had

believed she was getting the diminishing

88a

term policy which had no cash value.

Jones concealed there had been an

assignment.

Jones made a special agreement in

December 1976 when in return for obtain-

ing signatures of David and Donald that

he had done nothing to harm their cases

he assured them he would be ready for

trial in the spring. That he had no

intention of so doing is in the record

as he had the same date advised the

Court Clerk to not set his discovery

motions for hearing and never scheduled

them. It was alleged in the original

petition that he had failed to prepare

for the trial, as well as failing to

appear at the pretrial.

This Court failed to apply the

allegations and facts in the record on

motions for summary judgment to its own

cited laws, or to the laws cited in Ap-

pellant's briefs. Appellant is entitled

89a

to reconsideration and rehearing as weil

as the right to amend pleadings.

6.) This Court's misstatements,

wrongful conclusions and sissapplicetion

of the duties of a fiduciary deprived

the Administratrix of David's property

in various trusts. The Court over-

reached its authority by imputing words

into the settlement agreement that

simply were not there. The Court mis-

stated that “The plain wording of the

agreement says appellant's sons had full

and complete access to the books and

records of the defendants and had satis-

fied themselves as to the truth and

accuracy of everything contained there-

in." The “plain wording” of the agree-

ment is that David and Donald each ac-

knowledged and agreed that they had

initialed a copy of the said accounting

which they acknowledged had been rend-

ered to them. If Oe acknowledged and

initialed the accounting rendered then

clearly they did not have access to "all

books and records." By affidavit Donald

States the conditions under which they

were coerced, oppressed, intimidated and

threatened. Further their legal repre-

sentative, Thompson, was not even in the

room at the time the accountings were

presented and assured them he would get

copies for them. Over one year later

through the Oklahoma Bar Association the

"accountings" were obtained and same

Showed no initials and are part of the

record. And clearly they never acknow-

ledged any accounting or records regard-

ing the July 1961 Trust because there is

no language regarding access to any

"books and records" despite this Court's

imputing the language, nor were any ac-

countings rendered or claimed to have

been rendered.

9la

The cases cited by the Court,

Steiger v. Commerce Acceptance Co., 455

P 2d 81 (Okl. 1969) and Tyler v.

Hartford, 195 Co. v. Nipper, 174 Okl.

634, 51 P.2d 741 (1935) had no bearing

as they did not involve parties that had

ever had any fiduciary duty. The Court

misapplied those cases supra. The Court

failed to apply the principles of Looney

v. Chastain, 395 P. 2d 571 (Ok1l. 1964)

by its shocking, arbitrary and capri-

cious conclusion that because David and

Donald had instituted lawsuits against

"the named intendente" <khes had never

sued the attorneys named) the fiduciary

relationship was severed. It is irrele-

vant whether David and Donald trusted

the fiduciaries. It was the fiduciaries

and their attorneys duties to David and

Donald that are at issue. The Court's

opinion flys in the face of all the

standards of fiduciary duties when one

92a

is a Trustee or attorney for a Trustee,

particularly where said attorneys had

represented the grantor of the trusts

involved and had a duty to the benefi-

ciaries.

The Court disregarded the facts

that the agreement had covered the time

only to June 28, 1978 and most of the

acts sued for related to those later.

They involved accountings related to a

type trust supervised by the federal

government, known as ERISA. It was

alleged the trustees had not complied

with the federal laws as to the account-

ings for the Pension and Profit Sharing

Trust at the time the settlement agree-

ment was coerced and later.

There can be no misunderstanding

about the stock warrant action. That

trust clearly was not named in the

settlement agreement which is a form of

a contract. The trustees repudiation of

93a

the trust came after the agreement and

their concealments.

The Court complained that this pro

se appellant had not "properly pled

facts which rise to the standard requir-

ed to vitiate such an agreement.” The

facts were presented and this Court sit-

ting in equity should have considered

and applied them instead of overreach-

ing. Appellant should be allowed to

amend and the Court consider it amended

by the facts before it, instead of apply-

ing rules of ancient writs as to plead-

ing that are contrary to modern con-

cepts, requirements and the intent of

the Oklahoma Legislature, as well as the

United States Supreme Court. Appel-

lant's rights under U.S.C.A. 5 and 14

were denied.

This Court failed to apply the

allegations and facts to its own cited

laws and those cited in Appellant's

94a

briefs. Appellant is entitled to recon-

Sideration and rehearing.

7.) The opinion was rendered by a

five person Court which was dae duly nor

Constitutionally constituted. Further,

in light of the foregoing the require-

ments of the appearance of justice are

not met. Although Mr. Justice Ralph B.

Hodges authored the Appellant's Exhibit

1 hereto, the entire Court that was sit-

ting in 1978 is considered to have parti-

cipated. Present Court members have

family members who were or are affected

by the matters of legal malpractice in-

Surance cost. Although it is claimed in

the opinion that Mr. Justice Hodges did

not participate, the record indicates

that he did as the sheet which was sub-

stituted for the transcript at R1641

shows that the said transcript Original

was “delivered to HODGES, J 12-7-84",

It is apparent that certain argument by

95a

Counsel for Stephen Jones, George Camp,

Jonathan Burch and Edwin Whitney Burch

was underlined thus apparently consider-

ed by the Court. Oral argument consider-

ation was improper and particularly in

view of the fact that juries are specifi-

cally told to disregard the opinions of

Counsel. Further the argument was self-

serving and contrary to sworn affidavits

in evidence.

Further, Mr. Justice Robert

Lavendar participated in the decision

although this Appellant's affidavit

attached to her Motion to Retain filed

December 12, 1983 said that she and then-

Chief Justice Lavendar had exchanged

some correspondence regarding attorney

discipline problems and that Justice

Lavendar and Stephen Jones were friends.

Thus the due process requirements

under Amendment Five of the United

States alaaibdabias hie not met. Appel-

lants are entitled to a fair and impar-

tial tribunal. Appellant's rights under

the United States Constitution Amend-

ments 5 and 14 were denied.

THE SUPREME COURT OF OKLAHOMA

DENIED APPELLANT ROBERT ANN

FUNNELL DUE PROCESS, EQUAL

PROTECTION OF THE LAWS AND

RIGHT TO JURY TRIAL UNDER THE

CONSTITUTION OF THE STATE OF

OKLAHOMA

A. The Trial Court and the Supreme

Court of Oklahoma invaded the province

of the jury by deciding questions of

fact.

1.) Appellant repleads all of: the

foregoing, particularly the stated in-

Stances where the Court decided ques-

tions of fact and submits that the ques-

tion of fraud and fraudulent concealment

or due diligence to discover a cause of

action are questions of fact to be sub-

mitted to a jury. Under Oklahoma Sta-

tute, Title 15, section 60, the law is

that the existence of fraud is a fact

question. Appellant submitted numerous

facts and pleadings regarding fraudulent

concealment which were not controverted

by the Appellees responses in the Trial

Court and which they were given ample

opportunity to controvert. Those facts

by themselves present jury questions.

This Court's holding that Ap-

pellant's claims are barred by the

statute of limitations constitutes a

determination of a fact. Under Rule 13

of the District Court Rules this Court

has held that there can be no determi-

nation of a fact question on Rule 13

motions for summary judgment. Thus

Appellant has been denied the due pro-

cess and equal protection requirements

under the Oklahoma State Constitution.

The Appellants had rights to a jury

trial under Article 2, section 19 of the

98a

Oklahoma State Constitution. Appellant

was denied her rights to a jury trial,

as the fact questions were to be deter-

mined by a jury by this Court's own defi-

nition.

Wherefore, premises considered,

Appellant prays that a rehearing and re-

consideration of her said causes be had,

and that upon that rehearing and reconsi-

deration, this Court grant the Appellant

_ the relief prayed for in her original

petitions-in-error set forth above and

filed herein.

(Roberta Ann Funnell)

Roberta Ann Funnell, pro se

2306 S.E. 49th Street

Oklahoma City, Oklahoma 73129

(405) 670-1943

proof of service attached hereto

99a

IN THE SUPREME COURT

OF THE STATE OF OKLAIIOMA

In Re: OKLAHOMA BAR ASSOCIA- ).

TION'S PROFESSIONAL LIABILITY) S.C.B.D.

INSURANCE QUESIONNAIRE ) No. 2616

ORDER

The Board of Governors cf the

Oklahoma Bar Association has advised

this Court that the Association is faced

with a severe problem of diminishing

markets for professional liabilty

insurance and a correspondingly sharp

increase in premiums for coverage that

is still available. A primary cause

thereof is the lack of valid statistics

on the acts or omissions most frequently

giving rise to claims. Because reli-

ability claims experience data is essen-

tial to any effort to solve the problem.

IT IS ORDERED:

100a

The Court respectfully requests and

directs each member of the Oklahoma Bar

Association to respond by July 31, 1978,

to a questionnaire to be distributed by

the Association in a cooperative effort

to solve said problem. Responses to the

questionnaire shall be handled in such

manner that the anonymity of the respon-

dents is preserved.

DONE BY ORDER OF THE SUPREME COURT

IN CONFERENCE ON THIS 16TH DAY OF JUNE,

1978.

(Ralph B. Hodges)

CHIEF JUDGE

101la

IN THE SUPREME COURT

OF THE STATE OF OKLAHOMA

ROBERTA ANN FUNNELL,

INDIVIDUALLY AND AS

ADMINISTRATIX OF THE

ESTATE OF DAVID ALLEN

FUNNELL, DECEASED, AND

DONALD FUNNELL,

Appellants,

vs.

STEPHEN JONES AND WILLIAM

R. THOMPSON,

Appellees.

and

ROBERTA ANN FUNNELL,

Appellant,

vs.

JAMES E. WORK, GEORGE CAMP,

RICK CHEW, ROBERT D. LONNEY,

SR., WENDELL WIGHTMAN, and

THOMAS WILLIAMS,

Appellees.

and

ROBERTA ANN FUNNELL, ADMIN-

ISTRATIX OF THE ESTATE OF

DAVID ALLEN FUNNELL,

DECEASED,

Appellant,

vs.

1028

ee ee ee ee ee ee ee ee ee ee et ee ee ee ee ee et et et eet et et Se et Se et Se ee”

FILED

SUPREME

COURT

STATE OF

OKLAHOMA

JAN. 15,

1985

JAMES W.

PATTERSON,

CLERK

No. 59,204

(consoli-

dated w/

59,205 and

59,212)

FOR OFFI-

CIAL PUB-

LICATION

JAMES D. FUNNELL and HARRIET

FUNNELL INDIVIDUALLY AND AS

CO-TRUSTEES FOR DAVID ALLEN

FUNNELL; JONATHAN BURCH,

EDWIN WHITNEY BURCH and

JERRY DICK,

tlie ie i nd

Appellees.

APPEAL FROM THE DISTRICT COURT OF

OKLAHOMA COUNTY

Honorable Ray Lee Wall, Judge.

Appeal from order of the trial court

granting summary judgment and holding

that Plaintiffs' claims are barred by

statute of limitations and by previously

executed settlement agreement.

AFFIRMED.

ROBERTA ANN FUNNELL

DONALD K. FUNNELL,

Oklahoma City,

Oklahoma Appellants Pro se,

1034

RONALD R. HUDSON

Holloway, Dobson,

Hudson & Bachman

Oklahoma City,

Oklahoma

WILLIAM R. THOMPSON

Oklahoma City,

Oklahoma

GEORGE D. DAVIS &

RONALD R. WALKER

McKinney, Stringer

& Webster

Oklahoma City,

Oklahoma

GOMER SMITH, JR.

Smith & Murdock

Oklahoma City,

Oklahoma

EDWARD L. RAY,

Fenton, Fenton,

Smith, Reneau & Moon

Oklahoma City,

Oklahoma

ROBERT J. EMERY

Emery, McCandless,

Gaitis & Bruehl

Oklahoma City,

Oklahoma

JONATHAN W. BURCH

Burch & Burch

Oklahoma City,

Oklahoma

104a

For Appellees,

Edwin W. Burch,

Jonathan Burch,

George Camp,

Stephen Jones,

Appellee, Pro se,

For Appellee,

Robert D. Looney,

Sr.

For Appellee,

Wendell Wightman

For Appellee,

Thomas A.

Williams,

For Appellee,

James E. Work,

For Appellees,

James D. Funnell,

Harriet Funnell.

DOOLIN, J.

This is a consolidation of three

appeals brought by Appellants pro se in

the District Court of Oklahoma County.

The three causes consolidated and ruled

on below, include:

1) CJ=-79-991, an action by Appel-

lants, Roberta Ann Funnell, individual-

ly and as administratrix of the estate

of David Allen Funnell, deceased, and

Donald Funnell, against Appellees,

Steven Jones and William R. Thompson,

for legal malpractice.

2) CJ-80-2351, an action by Appel-

lant, Roberta Ann Funnell against

Appellees James E. Work, George Camp,

Rick Chew, Robert D. Looney, Sr.,

Wendell Wightman and Thomas A.

Williams, also for legal malpractice.

105a

3) CJ-80-4300, an action by Appellant

Roberta Ann Funnell as personal repre-

sentative of David Allen Funnell,

deceased against Appellees James D.

Funnell, Harriet Funnell, Jonathan

Burch, Edwin Whitney Burch and Jerry

Dick for fraud.

On September 13, 1982, the Honorable

Ray Lee Wall, sitting by special appoint-

ment, found and ordered that Appellants’

claims in 1) and 2) had been barred by

the applicable statutes of limitations,

and that Appellants‘ claim in 3) had been

barred by a settlement agreement. There-

upon, the court sustained motions for

summary judgment in each of the three

actions in favor of the respective defen-

dants, and Appellants commenced this

appeal.

106a

We find the trial court's findings and

Orders to be correct in each instance.

We are unusually impressed with the

Organizational ability, grasp and under-

standing of the appellant pro se, but the

fact that these lawsuits and their subse-

quent appeals were conducted pro se does

not, in any way relieve Plaintiffs/Appel-

lants of the responsibility to conform

their actions to the rules of pleadings,

evidence or appellate practice. We adopt

the rule stated by the Court of Criminal

Appeals in Bowen v. State, 606 P.2d 589

(Okl.Cr. 1980), and hold that a party

proceeding pro se in a civil action or a

civil appeal is to be held to the same

standards as an attorney.

The arguments in cases 1) and 2), are

founded on the Appellants' belief that

the statute of limitations was tolled as

107a

to her causes of action for legal malprac-

tice due to the fraudulent concealment of

wrongdoing by the attorney who allegedly

committed the wrongful acts; concealed by

an alleged conspiracy among the attorneys

subsequently consulted by Appellants to

prosecute the first attorney. Inasmuch

as Appellants’ Petitions below allege no

acts constituting legal malpractice which

occurred during the two-year period

immediately prior to the filing of Plain-

tiffs' initial Petition, some tolling of

the statutes must be proved to avoid the

finding that the actions were barred. To

this end, Appellants allege the theory of

tolling of limitation by concealment.

In Oklahoma, an action for malprac-

tice, whether medical or legal, though

based on a contract of employment, is an

action in tort and is governed by the

1084

two-year statute of limitations at 12

O.S.A. 1981, §95 Third. (Seanor v.

Browne, 154 Okl. 222, 7 P.2d 627 ?

(1932)). This limitation period begins

to run from the date the negligent act

occurred or from the date the plaintiff

should have known of the act complained

of. (McCarroll v. Doctors General

Hospital, 664 P.2d 382 (Okl. 1983)). The

period may be tolled, however, by conceal-

ment by the attorney of the negligent

acts which have injured the client. This

Court has previously held, in Kansas City

Life Insurance Co. v. Nipper, 174 Okl.

634, 51 P.2d 741 (1935) that:

"One relying on fraudulent

concealment to toll the statute of

limitation must not only show that

he did not know facts constituting

a cause of action, but that he

exercised reasonable diligence to

ascertain such facts."

109a

To specifically address the rule

stated in Nipper, we note that the record

reveals Appellant, Roberta Ann Funnell

was complaining of her first attorney,

James E. Work's alleged malpractice as

early as June, 1971. Even though she was

aware no action had ever been instituted

against him, for she waited almost ten

years to do anything about it. The pain-

ful conclusion to be drawn is her actual

knowledge in 1971 of the acts she alleges

constitute malpractice, shows there was

no concealment on the part of anyone

which would toll the statute of limita-

tions as to her cause of action against

Work.

Appellant, Roberta Ann Funnell, com-

plains each subsequent attorney was negli-

gent for not suing each preceding attor-

ney for not suing Work for negligence

110a

which allegedly occurred on or about

August 8, 1969. While this theory of

"tacking" the negligence of one party

onto the negligence of another to create

a single, continuous tort, is original,

such argument is not persuasive to neces-

sitate the creation of a new doctrine of

limitations, for there is no allegation

that subsequent attorneys were acting as

joint tort-feasors.

If the action against Work was barred

by the statute of limitations, which we

find to be the case, then the succeeding

lawyers cannot be guilty of malpractice

for not filing an invalid lawsuit. The

liability of each successive lawyer must

be bottomed on his own, negligent act,

not on the original complaint.

Even assuming there are other allega-

tions against any of the attorney-Appel-

1114

lees which might be grounds for a cause

of action for malpractice, the petitions

filed by Appellants below do not allege

any such negligent acts occurring within

a two-year period immediately preceding

the filing, and such petitions are,

therefore, fatally defective on their

face and summary judgment lies.

In summary then, as to causes 1) and

2), supra, we find the two-year statute

of limitations is applicable to each; the

Original petitions allege no act of mal-

practice occurring within the two-year

period immediately preceding its filing,

and the allegation that the statute of

limitation was tolled by concealment

fails because of Appellant, Roberta Ann

Funnell's knowledge of the acts she com-

plains of as negligent. The trial court

committed no error in granting summary

judgment as to these causes.

112a

Appellants allege errors regarding

acts by attorneys employed subsequent to

the original lawyers. These allegations

on the merits however, may not be reached

when the trial court grants summary judg-

ment on the question of statute of limita-

tions. In order for the allegation of

malpractice to be considered such acts of

necessity must be committed within two

years of the acts complained of, or

within two years of discovery of such

acts.

The trial court's granting of summary

judgment in case 3) supra, was on other

grounds. This action alleges that on

June 28, 1978, Appellant, Roberta Ann

Funnell's sons, Donald Funnell and David

Funnell were induced by fraud and coer-

cion to execute a settlement agreement

and thus to terminate certain litigation

113a

between themselves as plaintiffs and

Appellees James Funnell and Harriet

Funnell. David Funnell subsequently died

and Roberta Ann Funnell was appointed his

personal representative. Appellant seeks

to vacate the settlement agreement on

behalf of David Funnell's estate and

alleges he was coerced and defrauded into

signing by all the named defendants.

It is a settled rule in Oklahoma that

fraud is never presumed and where a writ-

ten agreement is attacked on the ground

of fraud, that agreement will be upheld

unless the allegations of fraud are estab-

lished by clear and convincing evidence.

(Steiger v. Commerce Acceptance Co., 455

P.2d 81 (Okl. 1969)).

It may be true that appellant has

rightfully set forth the elements of

fraud for the inducement of execution of

114,a

settlement. What such allegations lack

is specificity, clarity and convincing-

ness for there seems little doubt the

adult sons of the appellant accepted the

proceeds of settlement under its terms.

The plain wording of the agreement

says appellant's sons had full and com-

plete access to all the books and records

of the defendants and had satisfied them-

selves as to the truth and accuracy of

everything contained therein. On its

face, this document appears to be a fair

agreement, knowingly executed by the

parties to it and supported by adequate

consideration. Appellant's allegations

that it was procured by unlawful means

is, of course, within the realm of possi-

bility, but is not supported by properly

pled facts which rise to the standard

required to vitiate such an agreement.

115a

Also applicable here is the rule

stated in Tyler v. Hartford Insurance

Co., 195 Okl. 523, 159 P.2d 722 (1945),

which states:

"When a transaction is fairly

susceptible of two constructions,

the one which will free it from

the imputation of fraud will be

adopted."

Appellant correctly points out that in

some limited instances involving fiduciar-

ies, the party in the fiduciary position

may be required to offer affirmative

proof that no fraud existed. (Looney v.

Chastain, 395 P.2d 571 (Okl. 1964).

While the relationship between David

Funnell and Donald Funnell and the named

defendants may have at one time been a

relationship of trust and confidence, at

the time the settlement agreement was

entered into, such relationship had been

severed as evidence by the fact that

1164

David Funnell and Donald Funnell had

instituted several lawsuits against the

other defendants. It is illogical to

Suppose they would have sued the defen-

dants and yet have maintained a relation-

ship of trust as to the contentions which

were the subjects of the suits.

We hold that the trial court properly

granted summary judgment in cause 3).

The judgment of the trial court is

AFFIRMED.

Simms, C.J., Lavender, Hargrave, Wilson,

JJ. = concur

Hodges, J. - not participating

Barnes, Opala, Kauger, JJ. -

disqualified.

117 4

CASE INFORMATION SHEET

Case Number 59204 Date: 1/23/84

Consolidated with 59205 & 59212

1 Box of Records in Intern's Workroom

Appellant: Roberta Ann Funnell

Attorney: pro se

Appellee: James E. Work et al.

Attorney: Ronald Hudson, Ed Ray, et

al.

County: Oklahoma

Judge: Wall

Type of Action: Attorney malpractice

and breach of fiduciary duty by trustee.

Adverse Decision Appealed

(1) Nature (verdict for P, summary

judgment for D, etc.).

Summary judgment for all D's, all

cases. |

(2) Is there a final, appealable

order? Yes

1184

(3)

(4)

(5)

(6)

(7)

Date judgment was rendered:

9/13/82

Is journal entry, decree, order

or signed court minute of decision

appealed included in the record?

Yes

If yes, on what page is it

found? P. 545 (letter) P. 566

(memorialization)

If any post-judgment motions were

filed, list them, the date of fil-

ing and the date and type of

dispostion. None which effect

finality.

Was petition in error filed

within 30 days of the date judg-

ment was rendered or overruling of

motion for new trial or judgment

NOV?

11%

Summary of Facts: Appellant

challenges Settlement Agreement made by

trustees of estate of Joseph Funnell

through which Joseph's sons received lump

sum in lieu of attempting to achieve a

better result through litigation.

Appellant claims that settlement was

obtained by fraud, and undue influence

upon her sons who it seems excluded her

from the agreement. Ms. Funnell has sued

all the lawyers involved (both sides),

and the trustees, and failed in each

action.

Issue(s) to be Decided: (1) Legal

malpractice barred by stat. limitations.

(2) Will allegation of fraud, etc., toll

statute when settlement agreement was

already finalized in open court?

Is there a Motion to Retain or Motion for

Oral Argument? No

1204

Does the case appear to be appropriate

for affirmance by summary Opinion as

allowed by Rule 1.202? No

State the appropriate reason, citing

section of Rule 1.202.

Comments: AARGH!I!1!

Fast track:

(1) Did appellant agree to accelerate

procedures in appeal? (See peti-

tion in error, subsection F).

(2) Did appellee agree to the same?

1214

IN THE SUPREME COURT

OF THE STATE OF OKLAHOMA

Roberta Ann Funnell, Indivi-

dually and as Administratrix

of the Estate of David Allen

Funnell, Deceased, and

)

Donald Funnell, )

)

Petitioners, )

)

Vv. ) No. 54,943

)

Honorable Merle Lansden, )

)

Respondent.

Rehearing DENIED.

DONE this 27th day of May, 1980.

(Robert E. Lavender)

Chief Justice

LAVENDER, C.J., IRWIN, V.C.J. and

WILLIAMS, HODGES, BARNES, DOOLIN,

HARGRAVE, JJ., concurring.

SIMMS, J., not voting.

OPALA, J. dissenting by attached opinion.

(FILED Supreme Court, State of Oklahoma,

May 27, 1980 Ross N. Lillard, Jr. Clerk)

122a

IN THE SUPREME COURT

OF THE STATE OF OKLAHOMA

Roberta Ann Funnell, Indivi-

dually and as Administratrix

of the Estate of David Allen

Funnell, Deceased, and

Donald Funnell,

)

Petitioners, )

)

Vv. ) No. 54,943

)

Honorable Merle Lansden, )

)

Respondent. )

OPALA, J., dissenting:

The fundamental law of the Federal

Republic has, for some five decades now,

- enjoined upon the legal system of this

Nation, as one of its cherished values,

the principle of impartiality of the

tribunal.?

If there be the slightest

doubt about a judge's state of mind, it

must be resolved in favor of the litigant

1. Tumey v. Ohio, 273 U.S. 510, 47 S.Ct.

437, 71 L.Ed. 749 [1927]; Ward v.

Village of Monroeville, 409 U.S. 57,

1234

who questions the tribunal's fitness’.

The record before us affords ample

basis for at least some doubt as to the

respondent's neutral and detached posture

in the litigation. His recusal is hence

mandated by the command of the Constitu-

tion, state and federal. We should

have so ruled in the beginning.

93 S.Ct. 80, 34 L.Ed.2d 267 [1972];

Gibson v. Berryhill, 411 U.S. 564,

577-579, 93 S.Ct. 1689, 1697-1698, 36

L.Ed.2d 488, 499-500 [1973]; In re

Little, 404 U.S. 553, 92 S.Ct. 659, 30

L.Ed.2d 708 [1972].

2. Mayberry v. Pennsylvania, 400 U.S.

455, 91 S.Ct. 499, 27 L.Ed.2d 532

[1971]; Johnson v. Mississippi, 403

U.S. 212, 91 S.Ct. 1778, 29 L.Ed.2da

423 [1971]; Taylor v. Hayes, 418 U.S.

488, 94 S.Ct. 2697, 41 L.Ed.2d 897

[1974].

3. Art. 2 § 6, Okl. Con. provides in

pertinent part:

". . . and right and justice shall be

administered without sale, denial,

delay, or prejudice." [Emphasis added]

12,4

Rule 404 -- which bars rehearing after

our refusal to assume original jurisdic-

tion -- is no barrier to the petitioners'

plea before us. Rules do not rise to the

dignity of a jurisdictional impediment.

Courts are not infallible. They cannot

allow their mistakes to lie concealed

beneath a self-generated cloud of proce-

dural complexities. We are and must

forever remain free to correct an error

by promptly withdrawing the flawed deci-

sion and substituting in its place one

State ex rel. Harden v. Edwards, 176

Okl1. 187, 56 P.2d 402 [1936]; State ex

rel. Larecy v. Sullivan, 207 Okl. 128,

248 £.2a 239 [1952]; Tumey v. Ohio,

supra note l.

4. Rule 40, Supreme Court Rules, as

amended November 13, 1979, 12 0.S.

Ch. 35, App. i.

125a

which will accord with the law's highest

command.

My unswerving commitment to these

values leaves me with no alternative but

to dissent from today's denial of

rehearing.

5. Health Systems Agency of Oklahoma,

Inc. v. Norman, 589 F.2d 486, 491

[10th Cir. 1978].

(FILED Supreme Court, State of Oklahoma,

May 27, 1980 Ross N. Lillard, Jr. Clerk)

126a

IN THE SUPREME COURT

STATE OF OKLAHOMA

(FILED Supreme Court, State of Oklahoma,

May 5, 1980, Ross N. Lillard, Jr., Clerk)

ROBERTA ANN FUNNELL, Indivi-

dually and as Administratrix

of the Estate of DAVID ALLEN

FUNNELL, deceased, and

DONALD FUNNELL,

vs. No. 54,943

)

Petitioners, )

)

HONORABLE MERLE LANSDEN, )

)

Respondent. }

MOTION TO SUSPEND APPLICATION OF RULE 40

INSOFAR AS IT PERTAINS TO

DISQUALIFICATION OF JUDGES

Petitioner Roberta Ann Funnell respect-

fully moves this Honorable Court to sus-

pend application of that portion of its

rule 40 which states this Court will not

consider a petition for rehearing from an

order refusing original jurisdiction and

for reasons shows this Court as follows:

127a

1. This Court has jurisdiction over

lower courts under Oklahoma Constitution

Article 7 section 4. This Court appoint-

ed the Respondent after Oklahoma County

Judges disqualified.

2. Under the United States Constitu-

tion Amendment 14 this Petitioner has the

right to due process and equal protection

of law.

3. Petitioner's Petition and Brief for

Rehearing submits convincing authority

that in disqualification cases this Court

has a mandatory duty to assume jurisdic-

tion where a Petitioner has reasonable

fear she will not obtain a fair and impar-

tial trial under the Respondent Judge.

Petitioner's affidavits have so stated.

4. Petitioner's Affidavit attached

hereto gives new information as to her

fear of unfair hearing before Respondent

128a

and her rights under the Constitution

were denied.

5. Respondent, in violation of stat-

ute, has issued an order prohibiting Peti-

tioners from amending their pro se peti-

tion before an answer has been filed and

further ordered that recently acquired

counsel cannot amend their petition.

When Respondent sustains demurrers to

Petitioners’ inartfully drawn pro se peti-

tion defense counsel will have a strong

argument that allegations of a subsequent

amended petition having been previously

ruled on is res judicata.

6. This Court has a duty to uphold the

laws of this state and not apply restric-

tive Federal Code in matters of disquali-

fication of Respondent as was done in

Petitioners prior attempt to remove

Respondent.

129

Wherefore, Petitioner respectfully

requests this Court suspend its rule 40,

assume jurisdiction and grant the relief

requested in the Application and Petition

which relief includes an Order which will

allow amending the petition in court

below and Writ disqualifying Respondent.

(Roberta Ann Funnell)

Roberta Ann Funnell, pro se

1304

IN THE SUPREME COURT

STATE OF OKLAHOMA

(FILED Supreme Court, State of Oklahoma,

Apr. 21, 1980 Ross N. Lillard, Jr. Clerk)

ROBERTA ANN FUNNELL, Indivi- )

dually and as Administratrix )

of the Estate of DAVID ALLEN )

FUNNELL, Deceased, and )

DONALD FUNNELL, )

)

Petitioners, )

)

vs. ) No. 54,943

)

HONORABLE MERLE LANSDEN, )

)

Respondent. )

PETITION FOR REHEARING

On March 31, 1980, this Court declined

to assume Original Jurisdiction in the

captioned cause even though 20 0.S. 1403

lends itself to the interpretation that

the Legislature intended for the Supreme

Court to review all Applications to Dis-

qualify Trial Judge upon a proper

showing.

1314

This case involves no "nice" distinc-

tions upon which reasonable men can dif-

fer. The Respondent herein willfully and

flagrantly violated the statute of this

state which permits a Plaintiff to amend

his or her petition anytime before an

answer is filed. The Petitioners (Plain-

tiffs below) originally filed this peti-

tion pro se, (because they could not find

an attorney who would institute litiga-

tion against the Defendant attorneys).

Now the Respondent has made a mockery of

state law by not allowing them to amend

after having obtained the assistance of

counsel. Petitioners have been denied

effective assistance of counsel in viola-

tion of the U.S. Comstitution and have

been denied justice in violation of the

Oklahoma Constitution.

132a

This writer has advised his client

that the state's highest Court will not

tolerate open and flagrant lawlessness

from a lower bench. Surely his: advice

was not in error.

Further, an egregious ruling by the

trial Judge is consistent with Petition-

ers' position that the Respondent is

biased in favor of the Defendant attor-

neys with regard to whom Respondent has

made a pre-trial finding of fact that

they are "honorable people".

Respondent's pre-trial finding of fact

that attorney defendants being lawyers

are "honorable people” and his prior

biased comment with regard to petition-

er's pro se efforts and attempts to

secure counsel constitute additional

layers of icing on the cake of judicial

oppression. Petitioners are in great

133a

fear that they will not receive a fair

trial at the hands of Respondent.

WHEREFORE, Petitioners respectfully

request this Honorable Court to Assume

Original Jurisdiction and grant the

relief requested in their Application and

Petition which relief includes an Order

which will allow them to amend their Peti-

tion and a Writ disqualifying the

Respondent.

(Mike Millstead)

ee |

MIKE MILLSTEAD, Attorney

for Petitioners

___ (Roberta Ann Funnell)

Roberta Ann Funneil, pro se

1344

IN THE SUPREME COURT, STATE OF OKLAHOMA

Monday, March 31, 1980

THE CLERK IS DIRECTED TO ISSUE THE FOLLOW-

ING ORDERS:

54,943

Roberta Ann Funnell, Individual-

ly and as Administratix of the

Estate of David Allen Funnell,

Dec. and Donald Funnell v. Hon.

Merle Lansden. Application to

Assume Original Jurisdiction and

Petition for Writs of Mandamus or

Prohibition denied. CONCUR:

Lavender, C.J., Irwin, V.C.J.,

Hodges, Williams, Barnes, Doolin,

Hargrave, JJ.

DISSENT: Simms, Opala, JJ.

(Robert E. Lavender)

Chief Justice

(FILED Supreme Court, State of Oklahoma,

Mar. 3l,

1980 Ross N. Lillard, Jr. Clerk)

135a

IN THE SUPREME COURT

STATE OF OKLAHOMA

(FILED Supreme Court, State of

Mar. 17, 1980 Ross N. Lillard,

ROBERTA ANN FUNNELL, Indivi- )

dually and as Administratrix )

of the Estate of DAVID ALLEN )

FUNNELL, Deceased, and

DONALD FUNNELL,

Petitioners,

vs.

)

HONORABLE MERLE LANSDEN, )

)

Respondent.

Oklahoma,

Jr. Clerk)

No. 54,943

(BASED ON

NEWLY DIS-

COVERED

EVIDENCE)

APPLICATION AND PETITION TO ASSUME

ORIGINAL JURISDICTION IN ORDER TO ISSUE

A WRIT OF MANDAMUS OR PROHIBITION

1. Petitioners respectfully request

the Court to assume original jurisdiction

for reasons which are hereinafter set

forth.

2. Petitioners are Plaintiffs in Okla-

homa County Case No. CJ-79-991

which is a

legal malpractice action against Defen-

dants Stephen Jones and William

136a

Thompson. Petitioners allege Respondent

Judge Merle Lansden should be disquali-

fied by a Writ of Prohibition or Mandamus

issued from this Court for reasons which

will be hereinafter shown.

3. On March 5, 1980, Respondent Judge

overruled Plaintiffs Motion to Disqualify

himself.

4. Said Respondent Judge is biased

against Petitioners and in favor of the

Defendants below and said bias is shown

by his statement at a hearing on the 9th

day of November, 1979, wherein the Judge

made the following unusual statement:

". »« « I have no hesitancy of

talking to lawyers on the tele-

phone without the other attorneys

being there because I've found all

the iawyers to be honorable people

T. SL 9-13 (emphasis supplied)

Exhibit A hereto

137a

Counsel Mike Millstead did not enter the

case until the 2nd day of January, 1980,

and did not receive a copy of the tran-

script and actual knowledge of the con-

tents therein until January 12, 1980.

The significance of the Judge's statement

is overwhelming when you consider that

the Defendants in the legal malpractice

case are all lawyers and Defendant

William Thompson has been appearing on

his own behalf pre se. The Court's find-

ing that ". . . all the lawyers to be

honorable people . . .” is susceptible to

one of two interpretations, to wit: All

lawyers connected with the above cases

are honorable people or all lawyers in

general are honorable people. Either

interpretation leads to the unacceptable

situation that the Court on November 9,

1979, made a finding of fact that Defen-

138a

dants Stephen Jones and William Thompson,

both lawyers connected with the case as

Defendants and lawyers in general, are

both honorable people. Since the nature

of this legal malpractice case which

alleges inter alia fraud, a pre-trial

finding of fact that the Defendants are

"honorable" clearly indicates the bias of

Judge in favor of attorneys and Defen-

dants and a prejudice against

Petitioners.

5. Not only has the Respondent Judge

shown his prejudice by comments with ref-

erence to attorneys, but he has made rul-

ings which are not only adverse to Peti-

tioners, but more importantly are in

clear violation of the law. For example,

in a hearing on the 12th day of

September, 1979, on page 55 of the tran-

script, Exhibit B hereto, the Court

139a

issued an order to the effect that the

Petitioners were prohibited from amending

their petition even though no answer had

been filed in the case. The Court fur-

ther indicated that he intended to rule

on demurrers to the original petition

before he would allow an amended petition

to be filed. Respondent reiterated this

ruling on January 2, 1980. T. 6L 13-16,

Exhibit C hereto. These rulings clearly

disregard statutory law to the effect

that a Plaintiff has the absolute right

to amend her petition any time before an

answer is filed and it ignores case law

which makes it clear that where a second

amended petition is filed but does not

adopt or incorporate by reference the

former pleadings only the second amended

petition will be considered on demurrer.

1408

6. Plaintiff, Roberta Ann Funnell, is

still appearing pro se for herself in the

legal malpractice action below. Counsel,

Mike Millstead, represents only Plain-

tiffs David Allen Funnell, Deceased, and

Donald Funnell, for the reason that there

might be a conflict of interest between

the boys and their mother. The Respon-

dent has expressed a prejudice against a

person appearing pro se and a bias in

favor of persons represented by Counsel.

On page 7 Line 19 of the transcript of

the proceedings had on January 2, 1980,

Exhibit C hereto, the Court confessed

that it was "almost impossible" for him

to handle a pro se matter. At the August

8, 1979 CJ-79-991 hearing the Respondent

at T. 4L 9-11, Exhibit D hereto, issued a

bizarre order to the effect that Plain-

tiffs were prohibited from consulting

l4la

with any attorneys outside of the Court

who do not make an Entry of Appearance.

At T. 4L 5-7, the Court ordered that the

Plaintiffs could not consult with an Okla-

homa attorney unless the Court was first

furnished with the name of the attorney.

The Court then made the unusual statement

that he wanted to talk with whatever

attorney Plaintiffs wanted to consult

with. Apparently, this meant that the

Judge intended to screen ali prospective

attorneys before allowing them to repre-

sent Plaintiffs. Thus, the Respondent

effectively deprived Plaintiffs of their

right to Counsel and the free choice

thereof, in violation of the U.S.

Constitution.

7. Previously on September 24, 1979,

Petitioners, appearing pro se, filed in

Supreme Court Case No. 54,217 a Petition

12a

for a Writ of Mandamus with supporting

affidavits for the purpose of disqualify-

ing Respondent. Original Jurisdiction

was assumed by this Honorable Court and

the Writ was denied with Justices Simms,

Opala, and Hodges dissenting. The pri-

mary contention by Petitioners in that

application was that the Respondent was

biased and confused as to the facts, giv-

ing "the appearance of an elderly befud-

died man not competent to handle cases

involving many documents, details, and

defendants." While present Counsel was

not involved in the case when allegations

of incompetence were made, he does allege

that the fact that said allegations were

made would tend, in accordance with funda-

mentals of human nature, to aggravate any

pre-existing prejudice and create new

bias if in fact none before existed.

1434

8. Respondent, on March 5, 1980, stat-

ed, "The Motion for Disqualification will

be denied, and I might say that I am

not-- I would be glad to get out of it,

but I just can't do it under the

circumstances." T. 14L 9-11, Exhibit E

hereto. Respondent's stated wish to get

out of the case should be given serious

consideration. What circumstances could

possibly preclude this Trial Judge from

recusing himself?

9. All transcripts referred to have

been filed either with this Court or the

Trial Court and applicable page copies

are attached hereto.

10. As consequence of the above said

bias and prejudice exhibited by said

Judge against Plaintiffs and in favor of

Defendants, Petitioners have no plain

adequate or speedy remedy of law.

lita

WHEREFORE, Petitioners being otherwise

remediless, pray that this Court assume

Original jurisdiction and cause this Writ

of Prohibition or Mandamus to issue which

prohibits and orders the Respondent Judge

from proceeding further in the case and

orders his disqualification. Further,

the Respondent Judge should be ordered to

withdraw his prior illegal order which

prohibits the Petitioners from amending

their original peition which petition was

filed pro se.

(Mike Millstead)

MIKE MILLSTEAD, Attorney

for Petitioners

(Roberta Ann Funnell)

Roberta Ann Funnell, pro se

1454

IN THE SUPREME COURT, STATE OF OKLAHOMA

Monday, November 5, 1979

THE CLERK IS DIRECTED TO ISSUE THE FOLLOW-

ING ORDERS:

54,217 Donald Funnell and Roberta Ann

Funnell v. The Hon. Merle

Lansden, Judge for the Dist.

Court of Oklahoma County, State

of Oklahoma. Rehearing denied.

(Ben T. Williams)

Acting Chief Justice

(FILED Supreme Court, State of Oklahoma,

Nov. 5, 1979 Ross N. Lillard, Jr. Clerk)

IN THE SUPREME COURT

OF THE STATE OF OKLAHOMA

DONALD FUNNELL and _

ROBERTA ANN FUNNELL,

)

Petitioners, )

vs. ) No. 54,217

)

THE HONORABLE MERLE LANSDEN, )

Judge for the District )

Court, Oklahoma County, )

State of Oklahoma, )

)

Respondent.

16a

The order of this Court issued October

10, 1979, is hereby corrected to show the

proper citation of authority as follows:

Andrews, Mosburg, Davis, Elam, Legg &

Bixler, Inc., v. General Insurance

Company of America, W.D. Okl., 418 Supp.

304 (1976).

Petitioners are granted until October

26, 1979, within which to file a brief in

support of the Petition for Rehearing

. filed herein.

DONE BY ORDER OF THE SUPREME COURT

this 19th day of October, 1979.

(Pat Irwin)

Acting Chief Justice

(FILED Supreme Court, State of Oklahoma,

Oct. 19, 1979 Ross N. Lillard, Jr. Clerk)

IN THE SUPREME COURT

OF THE STATE OF OKLAHOMA

DONALD FUNNELL and )

ROBERTA ANN FUNNELL, )

)

Petitioners,

147a

No. 54,217

vs.

THE HONORABLE MERLE LANSDEN,

Judge for the District

Court, Oklahoma County,

State of Oklahoma,

wet ee ee ee eee ee ee

Respondent.

Jurisdiction assumed and writ of manda-

mus denied upon reading and consideration

of the petition and return, along with

brief, affidavits and transcripts in sup-

port thereof. Andrews, Mosburg, Davis,

Elam, Legg & Bixler, Inc. v. General

Insurance Company of America, U.S. W.D.

Okl. 148 F. Supp. 304 (1976).

DONE BY ORDER OF THE SUPREME COURT

THIS 10th DAY OF OCTOBER, 1979.

(Robert E. Lavender)

Chief Justice

Dissent: Simms, J., Opala, J., Hodges, J.

All others concurring.

(FILED Supreme Court, State of Oklahoma,

Oct. 10, 1979 Ross N. Lillard, Jr. Clerk)

18a

SEANOR v. BROWNE.

Ro. 20678.

Supreme Court of Oklahoma.

Jan. 26, 1932.

1. Lixitation of actions (Key) 31.

Action for malpractice, though based

on contract of employment, is action in

tort, and governed by two-year statute of

limitations (Comp. St. 1921, § 185, subd.

3).

2. Limitations of actions (Key) 27.

Special oral contract pleaded whereby

physician agreed to cure injury for

reasonable fee, but failed to cure, held

governed by three-year statute (Comp. St.

1921, §$ 165, subds. 2, 3).

3. Pleading (Key) 205 (1).

General demurrer, addressed to whole

of pleading, should be overruled, if

149a

pleading states facts entitling party

pleading to any of relief claimed.

Syllabus by the Court.

1. An action for malpractice, negli-

gence, carelessness, and unskillfullness

of a physician in treating a patient,

though based upon a contract of employ-

ment, is an action in tort, and governed

by the two-year statute of limitations,

as the contract of employment is merely

the inducement and right of the physician

to treat the patient.

2. While the gravamen of the action as

pleaded in the petition is in tort, and

the petition shows on its face that the

tort action is barred by the statute of

limitations of two years, yet, where

plaintiff pleads a special oral contract

that defendant agreed to cure an injury

150a

of plaintiff for a reasonable fee and

compensation, and pleads a failure of

defendant to perfect said cure, and

pleads the amount paid defendant for such

service, held, the special contract thus

pleaded is governed by the three-year

statute of limitations, and a general

demurrer to the petition on the grounds

that the action is barred by the statute

of limitations should be overruled, where

the special oral contract action is not

barred.

3. A general demurrer addressed to the

whole of a pleading should be overruled,

if the pleading states facts entitling

the party pleading to any of the relief

claimed.

REPORTED AT 7 P. (2d)

15la

DESK COPY

Wi31's

OKLAHOMA |

COURT RULES

AND

PROCEDURE

1980-1981

(This Pamphlet supersedes the 1979-1980 Pamphlet]

. Page

Oklahoma Statutes .......... eee ee eee eee e eres \

Oklahoma Court Rules ..........--. eee ee cree eres 873

Federal Rules .........ccccscccccccncccccscessese 1099

A detailed listing of Oklahoma Statutes and Court

Rules and Federal Court Rules contained in this

pamphlet appears on the inside page of the cover.

WEST PUBLISHING CO. ST. PAUL, MINN.

152a

Rule 13. g udgment where facts not controverted

A party may move for judgment in his favor on the ground

that the depositions, admissions, answers to interrogatories, and

affidavits on file, filed with his motion or subsequently filed

with leave of court show that there is no substantial controversy

as to any material fact. The adverse party may file affidavits

and other materials in opposition to the motion. The affidavits

which are filed by either party shall be made on personal know]l-

edge, shall show that the affiant is competent to testify as to the

matters stated therein, and shall set forth facts that would be

admissible in evidence. The court shall render judgment if it

appears that there is no substantial controversy as to any ma-

terial fact and that any party is entitled to judgment as a mat-

ter of law. If the court finds that there is no substantial con-

troversy as to certain facts or issues, it shall make an order

specifying the facts or issues which are not in controversy and

direct that the action proceed for a determination of the facts or

issues.

Notice shall be given to the adverse parties of the filing of a

motion for judgment under this rule. The filing of such a mo-

tion shall not delay or extend the time to answer, reply or file

other proceedings or papers in the case, and it shall not delay

the pretrial conference, the trial or other proceedings in the

case. If such a motion is made after the case is at issue, the

hearing on the motion and the pretrial conference may, in the

discretion of the court, be held at one time.

Rule 14. Discovery

a. Discovery rules and statutes shall be liberally construed,

provided, however, that all matters that are privileged against

disclosure at the trial, including, but not limited to, privileged

communications between a party or his agent and the attorney _

for the party, are privileged against disclosure through any dis-

153a

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.