# Appendix — Funnell v. Jones > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0712%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1987 - **Citation:** 484 U.S. 853 ## Text 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) i 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) la 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) 2a 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. 3a 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, La 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 5a 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. 6a 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. 7a 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 8a ’ 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 ga 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- a 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 a 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- a 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- 5 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 al 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 i 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 a 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) r ©O 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) 1a 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, v. STEPHEN JONES, et al., Appellees. and ROBERTA ANN FUNNELL, Appellant, v. JAMES E. WORK, et al., Appellees, and ROBERTA ANN FUNNELL, et al., Appellant, Vv. JAMES D. FUNNELL, et al., Appellees. ASSIGNMENT ORDER ) ) ) ) ) ) ) ) ) i 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 5 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, Ve 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: I, 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.