Appendix — Olson v. Continental Resources Resources, Inc. (No. 07-1405)
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APPENDIX A
NOT FOR OFFICIAL PUBLICATION
IN THE COURT OF CIVIL APPEALS OF THE
STATE OF OKLAHOMA
DIVISION II FILED
ROBERT OLSON COURT OF CIVIL
Plaintiff / Appellant,
APPEALS
STATE OF
OKLAHOMA
OCT 30 2007
MICHALE S.
RICHIE
CLERK
VS.
CONTINENTAL RESOURCES,
INC., HAROLD HAMM,
TOM LUTTRELL,
DAVIS OPERATING
COMPANY, & WILLIAM
H. DAVIS,
Defendants /
Appellees
CASE NO.
102398
A a _ A ae a a a a a a
APPEAL FROM THE DISTRICT COURT OF
BLAINE COUNTY, OKLAHOMA
HONORABLE RONALD G. FRANKLIN,
TRIAL JUDGE
SUMMARILY AFFIRMED UNDER
RULE 1.201
Robert Olson
‘Tulsa, Oklahoma
and
Julia C. Riemanb
Glenn A. Devoll
GUNGOLL, JACKSON, COLLINS,
BOX & DEVOLL, P.C.
Enid, Oklahoma
and
Robert B. Sartin,
Adam K. Marshall
BARROE & GRIMM, P.C. For Defendants /
Tulsa, Oklahoma Appellees
OPINION BY JANE P. WISEMAN, JUDGE:
Plaintiff Robert Olson appeals the trial court's
denial of his motion for a new trial on the trial
court's previous order of dismissal of his claims
against defendants Davis Operating Company and
William H. Davis. He also appeals the trial court's
grant of summary judgment to the remaining
defendants, Contintal Resources, Inc., Harold
Hamm, and Tom Luttrell. After review of the
record! and applicable law, we summarily affirm
the trial court's orders pursuant to Oklahoma
Supreme Court Rule 1.201, 12 O.S. 2001, Ch 15,
app. l.
1. The issues were fully briefed in the trial court, and
Olson's request to file an appellate brief pursuant to
Oklahoma Supreme Court Rule 1.36(g) is therefore
denied A2
Olson contends that the present case, Blaine
County District Court Case No. CJ-2004-121, isa
refiling under 12 O.S. 2001 § 100 of Blaine County
District Court Case No. CJ-2002-151. The
procedural history of Case No. CJ-2002-151 as it
relates to this case is set forth in Olson v. Continental
Resources, Inc., 2007 OK CIV APP 90, P.3d
(Olson ID) in which another division of this court held
that Olson's claims had previously been raised,
adjudicated against him, appealed, and affirmed in
Olson v. Continental Resources, Inc., 2005 OK CIV
APP 13, 109 P.3d 351 (Olson J).
In Olson IT, the Court of Civil Appeals held that
"{uJnder the doctrine of issue preclusion, [Olson} is
estopped from relitigating in this case [CJ-2002-
151] the same issue that was finally adjudicated in
the prior proceeding [Olson J]. The mandate has
issued in Olson IJ, and that opinion is final. Olson
characterizes the present case as a refiling of
CJ-2002-151 under 12 O.S. 2001 § 100; however,
that previous case has been finally adjudicated on
the merits, t.e., summary judgment was granted to
the defendants and affirmed on appeal.
Although Olson argues otherwise, the granting
of summary judgment under Rule 13 of the rules for
District Courts is a judgment on the merits of
A3
Olson's claims ” ,and the affirmance of that
summary judgment in Olson J precludes Olson from
raising any claims that were litigated or could have
been litigated either in the previous case °(CJ-
2002-151) or in a refiled lawsuit (CJ-2004-121)
raising the same claims as the previous case.
The Court of Civil Appeals in Olson IT concluded
that the claims in CJ-2002-151 were precluded by
Olson I. The claims in the present case, CJ-2004-
121, are the same claims refiled under a new case
2.
“A motion for summary judgment is a request for an
adjudication on the merits. ' Since summary judgment is
an adjudication on the merits, affirmative defenses that
go to merits can be raised by this motion.' ' The main
purpose of summary judgment is to avoid useless trials
and at the same time achieve a final determination on the
merits.’ " Union Oil Co. of California v. Board of
Equalization of Beckham County, 1996 OK 40, perf 10,
913 P.2d 1330, 1333 (citations omitted).
3.
See State of Oklahoma ex rel Moshe Tal v. City of
Oklahoma city, 2002 OK 97, pgrf 20, 61 p.3d 234, 245
("Claim preclusion bars relitigation by parties or their
privies of issues which either were or could have been
htigated in a prior action which resulted in a prior
judgment on the merits.").
A4
number and are likewise precluded.
Under Rule 1.201 of the Supreme Court Rules : ;
if a prior controlling appellate decision is dispositive
of an appeal, this Court may summarily resolve the
appeal, citing this rule and the controlling decision.
The decision in Olson IJ is controlling and dispositive
here and requires this Court to summarily affirm
the trial court's orders in the present case pursuant
. to Rule 1.201, 12 O.S. 2001, ch 15, app.1.
SUMMARILY AFFIRMED UNDER
RULE 1.201.
RAPP, C.J., AND FISCHER, P.J., concur.
October 30, 2007
Rule 1.201 provides in pertinent part: :In any case
in which it appears that a prior controlling appellate
decision is dispositive of the appeal, the Court may
summarily affirm or reverse, citing in its order of
summary disposition this rule and the controlling
decision."
A5
APPENDIX B
[IN THE COURT OF CIVIL APPEALS
STATE OF OKLAHOMA
DIVISION II FILED
COURT OF CIVIL APPEALS
STATE OF OKLAHOMA
DEC 11 2007
MICHAEL S. RICHIE
CLERK
THE CLERK IS DIRECTED TO NOTIFY ALL
PARTIES OF THE FOLLOWING ORDER(S):
102,398 ROBERT OLSON, Plaintiff / Appellant, V.
CONTINENTAL RESOURCES, INC.,
HAROLD HAMM, TOM LUTTRELL,
DAVIS OPERATING COMPANY &
WILLIAM H. DAVIS,
Defendants / Appellees.
. Appellant's Motion to submit two points
of clarification, filed November 21, 2007,
is granted.
Appellant's Petition for Rehearing, including
clarifications in Appellant's motion of
November 21, 2007, is denied.
ALL JUDGES CONCUR.
SO ORDERED this 7th day of December, 2007.
s\ John F. Fischer
JOHN F. FISCHER
Presiding Judge, Division II
APPENDIX C
FILED
SUPREME COURT
STATE OF OKLAHOMA
FEB 11 2008
MICHAEL S. RICHIE
CLERK
IN THE SUPREME COURT OF THE
STATE OF OKLAHOMA
MONDAY, FEBRUARY 11, 2008
THE CLERK IS DIRECTED TO ENTER THE
FOLLOWING ORDERS OF THE COURT
102,398 Robert Olson v. Continental Resources,
Inc., et al
Petition for certiorari is denied.
CONCUR: DINCHESTER, C.J.,
Edmondson, V.C.J., Hargrave, Opala,
Wa*t, Taylor, Colbert, Reif, J.J.
DISSENT: Kauger, J.
103,480 Regina Justice, mother and next friend
of Wyatt Justice, a minor v. Life-Stat
Ambulance Service, an Oklahoma
corporation
Petition for certiorari is denied.
CONCUR: Winchester, C..J.,
Edmondson, V.C.J., Hargrave, Opala,
Kauger, Watt, Taylor, Colbert, J.J.
DISSENT: Reif, J.
APPENDIX C
103,601
103,912
104,078
Dale Staton and Carolyn Staton,
husband and wife v. The Guarantee
State Bank of Mangum, Oklahoma
Petition for certiorari is denied.
CONCUR: Edmondson, V.C.d.,
Hargrave, Opala, Kauger, Watt,
Colbert,Rief, J.J.
Dissent: Winchester, C.J., Taylor, J.
Alicia Chambers v. JB Tarkington and
William Eugene Tarkington, Trustee
or their successors in trust, etc.
Petition for certiorari is denied.
CONCUR: Winchester, C.d.,
Edmondson, V.C.J., Hargrave, Kauger,
Watt, Taylor, Reif, J.J.
DISSENT: Opala, Colbert, J.J.
Regina Justice, mother & next friend
of Wyatt Justice, a minor v. Life-State
Ambulance Service, an Oklahoma
corporation and Scottsdale Insurance
Company
Petition for certiorari is denied.
CONCUR: Winchester, C.J.,
Edmondson, V.C.J., Hargrave, Opala,
Kauger, Watt, Taylor, Colbert, J.J.
DISSENT: Reif, J.
s\b Edmondson
VICE CHIEF JUSTICE
APPENDIX D
IN THE COURT OF CIVIL APPEALS OF THE
STATE OF OKLAHOMA
DIVISION II
ROBERT OLSON
Plaintiff/Appellant,
) Filed Nov 8,
)
VS )
)
)
2007
Case No.
102398
CONTINENTAL RESOURCES,
INC., HAROLD HAMM, TOM
LUTTRELL, DAVIS OPERATING)
COMPANY & WILLIAM H. ’ District Court
DAVIS ) Case No.
Defendants/Appellees. ) CJ-2004-121
PETITION FOR REHEARING, And
Motion for Summary Reversal under Supreme
Court Rule 1.201, Second Paragraph; Citing
prior Controlling decision Fellows v. Owens,
178 Okla. 224, 1936 OK 722, 62 P.2d 1215
And filed within 10 days.
COMES NOW, the plaintiff/Appellant, Robert
Olson, and petitions the Court to reconsider its
decision of October 30, 2007 for the following
reasons.
1. The Summary Judgment filed on August 11,
2003 was procurred by fraud, both intrinsic and
extrinsic, perpetrated by the Defendants. Both
D1
intrinsic fraud and extrinsic fraud are sufficient to
attack a summary judgment that has been final
and appealed. Patel v. OMH Medical Center, Inc.
1999 OK 33, 987 P.2d 1185, Sadberry v. Hope, 1968
OK 107, 444 P.2d 175. Asummary Judgment that
contains "Conclusions of Law" that do not apply to
the factual situation on the ground and that was
procurred by fraud, Cannot Be dispositive. The prior
appellate decision, Olson v. Continental Resources,
Inc., 2005 OK CIV APP 13, 109 P.3d 351 (Olson J)
which contained a false statement claiming Olson
attached no supporting evidentiary materials
whatsoever, (Olson I, page 5, #102933 Record pg
1037 (Record)), repeated and quoted the cquivocal
word "probable" (Olson I, Record pg 1037) in support
of the summary judgment and applied primary lease
term (before production) oil and gas Case Law to an
established oil and gas production situation,
Cannot Be dispositive
2. The April 13, 2007 Opinion by Judge Bell,
Olson v. Continental Resources, Jnc., 2007 OK CIV
APP 90, __P.3d__ ,( Olson II), also contains a false
statement of fact on page 3 therein: "Plaintiff's
pleadings were based on alleged inappropriate ex
parte communications between opposing counsel
and Judge Franklin, about which Plaintiff knew
during the original trial proceedings." (emphasis
by Plaintiff/Appellant) This statement is startling
false! I, the Plaintiff/Appellant did not know
LD 2
anything was wrong until I read Defendants’
application for attorney fees which was filed four
days after the Summary Judgment Order was filed.
That application included an entry for preparing a
highlighted notebook for the Judge.
3. Plaintiff refiled the case as Blaine County
DistrictCourt Case CJ-2004-121 in time to beat the
one-year statute limitation under 12 O.S. 2001
Section 100. The filing of CJ-2004-121 and the
requested recusal of Judge Franklin brought forth a
hearing before Judge Ray Dean Linder (Record,
Linder January 13, 2005 Transcript) and the
Affidavit of Ms. Julis C. Rieman (Record pg 1577,
1578) describing the extent of her actions and the
extent of the prepared, highlighted Case Summary
Notebook and admitting the clandestine ex parte
nature of the hand delivered Notebook to Judge
Franklin. In Olson IJ, Judge Bell admits that
opposing counsel did not provide Plaintiff with a
copy of the Notebook. The Affidavit of Ms. Julia C.
Rieman admits the Notebook contained copies of
selected opinions, highlighted and indexed to their
briefs. Highlighting and indexing is a way to focus
the Judge's attention and influence the Judge's
opinion. This kind of legal assistance to the Judge
is defined as fraud against the party who receives
no notice and has no opportunity to respond; thus
depriving the un-noticed party of a fair trial.
Fellows v. Owens, 178 Okla. 224, 1936 OK 722,
62 P.2d 1215, 1218.
D3
This is an admission by Judge Bell that
opposing counsel violated Rules 3.5(a), 3.5(b), 8.4(a)
and 8.4(f) of the Rules of Professional Conduct,
Title 5, Chapter 1, Appendix 3-A and that he is
willing to overlook those violations. The Affidavit of
Ms. Julia C. Rieman (Record pg 1577, 1578) shows
Judge Franklin accepted the legal assistance Case
Summary Notebook. When Judge Franklin
accepted the Case Summary Notebook, that
Notebook officially became a document of the case
CJ-2002-151. That Notebook amounts to an extra,
Cliffs Notes style summary brief to the Judge that
the agrieved party did not have the opportunity to
respond to. That is fraud and deprives the agrieved
party of a fair trial.
4. When Judge Franklin accepted the
substantive, ex parte Case Summary Notebook, he
violated Canons 3B(6), 3B(6)(a) and 3B(6)(b) of the
Code of Judicial Conduct, Title 5, Chapter 1,
Appendix 4. When Judge Franklin threw away the
only (and unrecorded) copy of the Cliff's Notes style
Case Summary Notebook, he violated O.S. Title 21
Section 461, covering the destruction of court
documents. (Transcript, Judge Franklin, June 17,
2004, Pg 6, Record pg 1543, 1544). In Olson I,
Judge Bell is willing to overlook these judicial
violations of the rules which deprived the Plaintiff
of a fair trial.
None of the judges who looked at any stage of
D 4
either CJ-2002-151 or CJ-2004-121 seem to have
any understanding of oil and gas law. Canon 3B(1)
of the Code of Judicial Conduct says the judges
should be faithful to the law and maintain
professional competence in it. A judge should not
take an attorney's word for what the law really is.
Whether the fraud is actionable, actual or
constructive is immaterial; it is still fraud. Patel,
supra.
5. The filing of Blaine County District Court
Case No. CJ-2004-121 flushed out the proof of the
individual fraud perpetrated against the Plaintiff.
The pursuit of Case CJ-2004-121 also brought out
that the practice of attorneys providing judges with
clandestine ex parte legal assistance is
commonplace in Oklahoma. (Oklahoma Appeal
# 102933 Record, Judge Linder Transcript of
January 13, 2005, pages 32 and 33, 50; and Record
pg 1592 - 1594) (Linder Transcript). This is Insider
Law and is as fraudulent on the public as insider
trading on the stock market. The public does not
know about Insider Law but is aware of the
increased injustice. Figure 1 is a chart of Oklahoma
Supreme Court Case Numbers vs years. After
attorney legal assistance to the judge was declared
fraud in 1936, the increase in case load stabilized
until about 1975. When the Courts started to use
the summary judgment process to reduce case load
in about 1975 and Oklahoma District Court Rule
D5
13 was adopted in November 1984, the Supreme
Court Case Load dramatically accelerated. This is
the public's response to the injustice of the present
summary judgment process. In the January 13,
2005 Judge Linder Transcript, page 50, Judge
Linder testified from the bench that he had been a
judge for 37 years and testified he had seen
thousands of the Case Summary Notebooks and the
practice is quite commonplace. So the time frame
of the attorney ‘clandestine ex parte legal assistance
to the judge' fraud corresponds to the dramatic
increase in Supreme Court Case Load from about
1975 to the present. Almost all the entire careers of
all the judges in Oklahoma have proceeded under
the umbrella of the Insider Law Fraud. The symbiotic
relationship with the attorneys takes work load off
the judges' shoulders. This creates bias.
Who is to know ?
6. So, the espoused Court policy on summary
judgments (Judge Wiseman's Opinion of October 30,
2007, Case No. 102,398, Page 3, footnote 2) has
backfired for the last 30 years. Fair trials are never
useless; all contentions can be fully aired. The
present summary judgment process is subject to
manipulation by the common practice of attorneys
clandestinely providing judges with substantive, ex
parte Cliff's Notes style Case Summary Notebooks
to guide and influence the judge's decision with no
notice to the opposing party and no record. This
D6
deprives the un-noticed party of having a fair trial
and an impartial judge.
7. Every act of every Oklahoma Court proceeding
subsequent to the fraud is tainted by the fraud. By
refusing to allow me, the Appellant, to brief my side
of the case to the Court, the court is depriving me,
the Appellant, the opportunity to fully and fairly
present my side of the case to the Court; and as
importantly, to the record. I am due a jury trial and
the Court is depriving me of my rights to a fair trial
before an impartial judge, as is guaranteed under
the Fourteenth Amendment of the United States
Constitution. Somewhere, the search for substantial
justice must superceed the current failed summary
judgment policy.
8. Motive: In May of 2000, Continental
Resources petitioned the Oklahoma Corporation
Commission for an increased density well in the
Matli #1-17 well Section 17, T16N-R11W, Blaine
County, Oklahoma. (Record pg 1583) In the course of
that petition, Continental Resources, Inc., valued my
1.5% override at $ 937,125.00 at $5.25 per MCF gas
price. The working interest split in ownership of the
Old Leases (and the New Leases) was ~52%
Continental Resources and ~48% Davis Operating
Company, ct al. (Settlement Agreement Letter,
Record pgs 1565 - 1568). The split of the value of
my override allowed Davis Operating Company to
pay off its debt to Continental Resources, Inc. of
D7
more than $24,849.43 with no out-of-pocket expense.
(Settlement Agreement Letter, pgrf 1 and 5).
9. The Court is not able to write an Opinion that
says:
State Commissioners of Land Office of Said State v.
Amoco Production Company, Oklahoma Appeal
# 53462, February 2, 1982, Okl., 645 P.2d 468,
referencing Godfrey v. McArthur, 186 Okl. 144, 96
P.2d 322, 325 (1939), (Record pg 1488, 1490, 1491),
which says:
"After production is found in time to preserve
the lease, the question with reference to its
extension and operation over all the premises
described therein is one of diligent and proper
development according to the covenants
contained in the lease; it is a question of
forfeiture, not one of expiration."
is not applicable because ... .
b. Stewart v. Amerada Hess Corporation,
Oklahoma Appeal # 51254, # 51255, 604 P.2d 854
(Okla. 1979) Key Mines and Minerals 78.1(8), 260
k 78.1(8), which says:
“Where oil and ga: lease contains habendum
clause providing that the lease is to remain in
force after the primary term for as long
thereafter as oil or gas is produced, under no
circumstances will cessation of production in
D8
err Oe re ~ TT
paying quantities ipso facto deprive the lessee
of his extended-term estate.
(bold by Plaintiff herein)
And {II, page *858, [5][6][7]}, (Record pg 1502)
is not applicable because ... .
c. Caudle v. Brannon, 176 Okla. 394, 56 P.2d
131 (1936), which says:
"Lessee-sublessor entitled to recover overriding
royalty on production despite attempted
release of lease by sublessee to lessor."
is not applicable because ... . (Please see Exhibit 7,
Oklahoma Appeal # 102933, Record pg 1536.)
d. Phillips Petroleum Co. v. Taylor, 115 F.2d
726, 116 F.2d 994, 995, 996, 61 S. Ct. 941 (Mem),
313 U.S. 565, 85 L. Ed. 1524 , (Oklahoma Appeal
No. 102933 Record pgs 1633 - 1641)
which says:
"The law requires an assignee who stands in the
shoes of his lessee-assignor, to do that which an
ordinary prudent operator would do under the
circumstances, having due regard for the
interests of all parties. - - - - For the protection
of the lessor, the law imposes upon the assignee
the duty, when he drills, to exercise reasonable
prudence solely in order to prevent loss to the
lessor of that which is rightfully his, be the loss
by @rainage or refusal to capture or surrender of
the lease. This duty, where not expressed, is
D9
imposed by implied covenant ." (Record pg
1636) (bold by Plaintiff herein) and
"The lessee-assignor of an oil and gas lease,
retaining an overriding royalty, payable out of
the first oil and gas produced, as sole
consideration for the assignment of the lease
and the oil field equipment, was entitled to the
benefit of an implied covenant by the assignee
to protect against drainage."
/
is not applicable because... .
e. Cain v. Neumann, 316 S.W.2d 915, Citing
Cole v. Philidelphia Company 345 Pa 315,
26 A.2d 920, 923 held:
"That a surrender of an old lease in exchange for
a new lease when there was production under
the terms of the old leases, did not destroy the
rights of others claiming under the old lease.
‘Would anyone contend that a lessee could be
heard to say, even in writing, that he
surrendered a lease while he at the same held
the premises and continued to operate ? ...'
In other words, even if there were an express
surrender clause, non-production must be the
fact, not a mere recital. "
(Record pg 1644) and
"Appellants, before the 1953 lease, owned
property rights under the clear terms of the
1918 lease. They did not surrender that
ownership, and so long as production continued,
nobody else could." (Record pg 16435)
is not applicable because... .
f. Danne v. Texaco Exploration and Production,
Inc., (Okla. App Div 2, 1994), 1994 OK CIV APP
138, 182 Oul and Gas Rep. 623, 883 P.2d 210,
which says:
“"Habendum clause in oil and gas lease is estate
on condition subsequent creating only right of
entry in grantor; with such estate, grantor must
bring action to cause forfeiture of estate." and
“Anderson v. Talley, 199 Okla. 491, 187 P.2d 206
(1947), the court ruled: "[b]y the receipt of the
[royalty] payments, the lessor clearly and
definitely recognized the existence of the lease
long after the breach. We conclude the lessor
waived the breach of the lease which the lessees
had committed and that plaintiff is not entitled
to cancellation of the lease therefor." "Jd. 187
P.2d at 208" (Record pg 1659)
is not applicable because ...
D 11
g. Hudspeth v. Schmelzer, 182 Okla. 416, 1938
OK 161, 77 P.2d 1123 which says:
"The essential requisite of abandonment of oil
and gas lease is an intention on part of lessee to
relinquish his interest in premises, ..." (Record
pg 1663) and
h. Blackwell Oil and Gas Co. et al. v. Whited, 81
Okla. 45, 1921 OK 8, 196 P. 688, which says:
"To constitute abandonment in respect of an oil
and gas lease there must be a concurrence of the
intention to abandon and an actual
relinquishment of the property, so that it may
be apprepriated by the next comer." (Record pg
1673)
are not applicable because ... .
9. The Intrinsic Fraud
Continental Resources, Inc. filed a release of
"all right title interest" for Section 17, TI6N-R11W,
Blaine County, Oklahoma. The Old Leases, with
my override, were valid paying leases at the time of
filing the release. Therefore, that release is a filing
of a false document of title.
10. Fiduciary Duty
Continental Resources, Inc. owes the
Plaintiff/Appellant Fiduciary Duty through three
circumstances: (1) Continental Resources, Inc. had
absolute and complete control of paying the override
proceeds to the Plaintiff, and (2) The assigned
override is effective from first production, which
means when production is first established, the
assigned override is converted into a vested mineral
estate. That estate cannot be extinguished by a
mere recital of surrender; Production must be totally
absent. That is not the case here! And (3) By
Contract; The override herein, assigned from the
base leases, before production was established,
vested by production, effective from first production,
has title superiority. That assignment came about
as part of the employment contract. Proof is the
assignment. When participants join the venture,
they explicitly agree to pay, or cause to be paid, the
override, because participation is subject to
the Net Revenue. Proof is the division order. By
this, the override is a third party creditor
beneficiary of the participation agreement. When
Continental Resources, Inc. acquired its ~52%
interest, as an assign Continental Resources is
bound by the previous stipulations and agreements.
The Operating Agreement outlines how the
participants will carry out and fulfill their
D 13
obligations, with one entity representing the group.
So, by extension, the vested override is a third party
creditor beneficiary of the Operating Agreement and
is due Fiduciary Duty from the Operator.
11. Summary Judgment
Defendants were never entitled to summary
judgment as a matter of law.
PRAYER
The Plaintiff/Appellant prays the Court wi!
reappraise the law behind this case and allow an
oral hearing before a Supreme Court referee and
remand this case back to Blaine County for an
actual jury trial.
Respectfully submitted,
s\ Robert Olson
Robert Olson
9022 E 60th St
Tulsa, Oklahoma 74145
918 252 1987
D 14
Judges will have to answer in court, on the record,
whether they will accept the clandestine, ex parte
substantive Cliffs Notes style case summary
notebooks
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Judges will have to answer in court, on the record,
whether they will accept the substantive,
clandestine, ex parte Cliffs Notes style Case
Summary Notebooks.
The Oklahoma Supreme Court Case Load vs
Years Chart appears in proper size and font
as Appendix
CERTIFICATE OF MAILING
I hereby certify that on this
8th day of
November, 2007, a true and correct copy of the above
and foregoing instrument was mailed via first class
mail with proper postage fully prepaid thereon to:
Robert B. Sartin
Barrow & Grimm,
P.C., 610 South
Main, Suite 300
Tulsa, Oklahoma
74119-1248
118 584 1600
Attorneys for
Defendants Davis
Operating Company,
William H. Davis
Blaine County
Court Clerk
212 N. Weigle
Watonga,
Oklahoma 73772
Glenn A. Devoll
Julia C. Rieman
Gungoll, Jackson, Collins,
Box, & Devoll, P.C.
P.O. Box 1549
Enid, Oklahoma 73702
580 234 0436
Attorneys for Defendants /
Appellees Continental
Resources, Inc., Harold
Hamm and Tom Luttrell
s\ Robert Olson
Robert Olson
9022 E 60th St
Tulsa, Oklahoma 74145
918 252 1987
D 16
APPENDIX E
IN THE SUPREME COURT OF THE FILED
STATE OF OKLAHOMA ec gy
ROBERT OLSON ) arereor
Plaintiff/Appellant, ) OKLAHOMA
vs ) JAN -2, 2008
CONTINENTAL RESOURCES, INC.,) MICHAELS.
HAROLD HAMM, TOM LUTTRELL, ) RICHIE
DAVIS OPERATING COMPANY & ) CLERK
WILLIAM H. DAVIS ) Case No.
Defendants/Appellees. ) 102398
PETITION FOR A WRIT OF CERTIORARI
COMES NOW the Appellant, Robert Olson,
and petitions the Court for a Writ of Certiorari
from the Oklahoma Court of Civil Appeals Court,
Division II, decision in Case #102,398, filed on
October 30, 2007. A timely Petition for Rehearing
was filed by certified U.S. mail, return receipt
requested on November 8, 2007. This Petition for
Rehearing was filed within 10 days to comply with
the second paragraph of Supreme Court Rule 1.201,
12 O.S. 2001, Ch 15, App. 1, and stated that the
prior controlling decision applicable to summary
disposition is Fellows v. Owens, 178 Okla. 224,
1936 OK 722, 62 P.2d 1215, which states that
clandestine, ex parte legal assistance, helping the
judge make his decision, without notice to the
other party is fraud on the party not given notice.
E 1
Misrepresentations by the Courts
i. Appellant's Petition for Rehearing was
denied by the Oklahoma Court of Civil Appeals,
Division II, by Judge F. Fischer, Presiding Judge,
Division II, filed December 11, 2007. This denial
of rehearing stated Plaintiff filed his Petition for
Rehearing on November 21, 2007. This
misrepresentation by the Court would imply
Plaintiff had filed his Petition for Rehearing out of
time, which would be reason to deny the Petition
for Rehearing. A timely request for correction has
been filed.
This is not the first instance of this type of
misrepresentation by the Courts, detrimental to the
Appellant, in Plaintiff / Appellant's litigation to try
to recover his stolen, income producing property, in
Blaine County District Court Cases CJ-2002-151
and CJ-2004-121; and the appeals therefrom.
Misrepresentation 2. When a Judge takes the
bench he represents to the world that he is
honorable and that he will follow the law and live
up to the Code of Judicial Conduct. When Judge
Franklin accepted the clandestine, ex parte Case
Summary Notebook from Defendants' counsel,
(# 102398 Record Index 12, Exhibit B), he violated
Canon 3B(6)(a) and Canon 3B(6)(b) of the Code of
Judicial Conduct. When Judge Franklin did not
record the Case Summary Notebook and did not
order a copy be provided to the Plaintiff, Judge
Franklin violated Canon 3B(6)(b) of the Code of
E 2
Judicial Conduct. When Judge Franklin threw away
the only copy of the Case Summary Notebook, Judge
Franklin violated O.S. Title 21 Section 461
(# 102398 Record Index 8; Index 12 Exhibit C).
Misrepresentation 3. Court of Civil Appeals,
Division III, Judge Carol M. Hansen stated in her
Opinion in Case #99704, filed February 17, 2004,
that the Plaintiff submitted "no evidentiary
materials whatsoever" attached to his motion to
deny Defendants’ motions for summary judgment.
( Case # 102,398 Record Index 4, Exhibit 1, Page 5;
Index 6, Exhibit 5.) This statement is entirely false.
( Case # 102,398 Record Index 6, Exhibits 7, 8.).
Judge Hansen affirmed the trial court's summary
judgment Order "BECAUSE Olson submitted no
evidentiary materials establishing a material issue
of fact." Judge Hansen affirmed against Plaintiff /
Appellant because of that judicial
misrepresentation that is the basis of the Opinion
in Case # 99704, against the Appellant. The
Courts were informed of this misrepresentation
but took no corrective action.
Misrepresentation 4. In Judge Hansen's
Opinion of February 17, 2004, in Case # 99704,
Judge Hansen applied oil and gas lease primary
lease term case law to a secondary lease term
situation and approved using the word "probable"
in a summary judgment. In doing so, Judge
Hansen violated Canon 3B(1) of the Code of Judicial
Conduct by not remaining cognizant of the law.
E 3
Misrepresentation 5. Oklahoma Court of Civil
Appeals, Division I, Judge Robert Dick Bell, in his
Opinion in Case # 102933, filed April 13, 2007,
stated in Paragraph 4, that " Plaintiff's pleadings
were based on alleged inappropriate ex parte
communications between opposing counsel and
Judge Franklin, about which Plaintiff knew during
the origina] trial proceedings."
This misrepresentation seems to seek to
discredit Plaintiff's claim of fraud by implying
previous knowledge. This is outrageous. The Case
Summary Notebook was made only 6 days before
the trial court pronounced the summary judgment,
only one copy was made and it was surreptitiously
given to Judge Franklin, ex parte. (Case # 102398
Record, Index 12, Exhibit B, page 2.).
Gentlemen: The above listed and described
Judicial misrepresentations are too many and too
tailored to the specific legal circumstances to be
purely coincidental. The Courts have been made
aware of these judicial misrepresentations and have
taken no corrective action. Why ? Is there a
concerted effort by the appeals courts to just get
rid of this case ?
History Before 1936, Oklahoma Supreme
Court Case Load was rising rapidly. In 1936, the
Oklahoma Supreme Court ruled that clandestine,
ex parte legal assistance to the judge by counsel
was fraud when the other side was not notified
> vA)
m4
By enforcing Oklahoma Supreme Court Rule
1.86, which does not allow appeal briefs on
summary judgment, the Oklahoma Supreme Court
has denied the Plaintiff / Appellant the opportunity
to refute the erroneous legal conclusions of the trial
court and thus has denied the Plaintiff / Appellant
he opportunity to defend himself.
This theft of private property would never stand
in a jury trial.
ARGUMENTS
1. Olson lis on appeal at the United States
Supreme Court.
4 There has been no mandate issued in Olson JI.
3. Some claims in Blaine County District Court
Case CJ-2004-121 are the same as in Blaine
County District Court Case CJ-2002-151. However
since the Plaintiff / Appellant was prevented from
fully and completely defending himself due to the
ex parte Case Summary Notebook fraud in Case
CJ-2002-151, any decision made subsequent to the
fraud is not preclusionary and thus is not dispositive
in Case CJ-2004-121, Union Oil Co. of California v.
Board of Equalization of Beckham County, 1996
OK 40, perf 10, 913 P.2d 1330. Continental and
Davis did not need to steal Plaintiff's override.
The settlement agreement between Continental
Resources, Inc. and Davis Operating Company was
kept confidential, away from the Plaintiff /
Appellant at the time of filing Case CJ-2002-151.
E 8
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Because of the new information contained in the
settlement agreement letter, later acquired,
Plaintiff / Appellant added new tort claims
of Sham Legal Process, Interference with a
Business Contract, and Conversion.
4. Concerning Union Oil Co. of California v. Board
of Equalization of Beckham County, 1996 OK 40,
perf 10, 913 P.2d 1330, a fair trial is never a useless
trial. The sentence structure in footnote 4 of Judge
Wiseman's decision in Case # 102398, filed October
30, 2007, suggests the Court is more interested in
processing case load than it is in decerning right
from wrong and finding justice.
5. The false legal premises of both Olson J,
#99704 and Olson IT, # 102933, as discussed above,
neither can be considered dispositive.
CONCLUSIONS and PRAYER
The summary judgment Order in Blaine County
District Court Case CJ-2002-151 was obtained by
fraud. Therefore it cannot be on the merits. The
appeal opinion in Court of Civil Appeals, Division
III, was determined by significant judicial
misrepresentation, that opinion cannot be on the
merits. The prior controlling authority from 1936
until 1982 was Fellows v. Owens, supra ; Then
fraud took over.
The Plaintiff / Appellant prays the Court grant
a Writ of Certiorari. The Plaintiff / Appellant
prays the Court vacate the previous Ceurt of Civil
Appeals opinions, reverse all the previous trial
court decisions and remand for a jury trial on all
the issues outlined in Plaintiff's Petition in Blaine
County District Court Case CJ-2004-121.
Respectfully submitted,
s/o Robert Olson
Robert Olson
9022 E 60th Street
Tulsa, Oklahoma 74145
918 252 1987
CERTIFICATE OF MAILING
l hereby certify that ontnis 21st day of
December, 2007, a true and correct copy of the above
and foregoing instrument was mailed via first class
mail with proper postage fully prepaid thereon to:
Robert B. Sartin
Barrow & Giimm, P.C.
610 South Main,
Suite 300
Tulsa, Oklahoma
74119-1248
918 584 1600
Attorneys for
Defendants
Davis Operating
Company,
Wiliam H. Davis
Glenn A. Devoll
Julia C. Rieman
Gungoll, Jackson,
Collins, Box, & Devoll,
P.C.
P.O. Box 1549
Enid, Oklahoma
73702
080 234 0436
Attorneys for Defendants /
Appellees Continental
Resources, Inc., Harold
Hamm and Tom Luttrell
Blaine County Court Clerk
212 N. Weigle
Watonga, Oklahoma 73772
s/b Robert Olson
Robert Olson
9022 E 60th St
Tulsa, Oklahoma 74145
918 252 1987
E 11
APPENDIX F
IN THE SUPREME COURT OF THE
STATE OF OKLAHOMA
ROBERT OLSON,
Plaintiff / Appellant FILED
as SUPREME
CONTINENTAL RESOURCES, ) court oF THE
INC., An Oklahoma Corporation) STATE OF
HAROLD HAMM, An Individual) OKLAHOMA
and President and Chief ) FEB -2 2006
Executive Officer of Continental . MICHAEL S.
Resources, Inc., RICHIE
TOM LUTTRELL, An Individual CLERK
and Vice President of
Continental Resources, Inc. ) Appeal Case No.
AND ) #102398
DAVIS OPERATING COMPANY,
An Oklahoma Corporation, )
WILLIAM H. DAVIS, )
)
)
An Individual and
President of Davis
Operating Company,
Defendants / Appellees.
APPELLANT'S REQUEST FOR PERMISSION
TO FILE A BRIEF IN SUPPORT OF HIS SIDE
OF THE CASE UNDER OKLAHOMA
SUPREME COURT RULE 1.36 (g)
District Court
Case Number
CJ-2004-121
COMES NOW, The Plaintiff / Appellant,
Fl
Robert Olson, and requests permission from the
Oklahoma Supreme Court to file a brief in support
of his side of the case for the following reasons:
Under United States Supreme Court Rule 29
(4.){c), which states:
(c) In any proceeding in this Court in
which the constitutionality of any statute
of a State is drawn into question and neither
the State nor any agency, officer, or employee
thereof is a party, the initial document filed
in this Court shall recite that 28 U.S.C. S
2403(b) may apply and shall be served on
the Attorney General of that State. In such
a proceeding from any court of the United
States, as defined by 28 U.S.C.9451, the
initial document also shall state whether
that court, pursuant to 28 U.S.C. x 2403(b),
certified to the State Attorney General that
the constitutionality of a Statute of that
State was drawn into question. See Rule
14.1(e)(v).
I, Appellant, Dr. Robert Olson, question the
constitutionality of Oklahoma District Court Rule
13 as being in conflict with the Due Process of Law
provisions of the Fourteenth Amendment of the
United States Constitution. New evidence; a plot
of Oklahoma Supreme Court Case Numbers versus
Years from 1916 to 2006 (Exhibit 1), shows a
dramatic increase in Oklahoma Supreme Court
case load immediately after the present District
Court Rule 13 was adopted and became effective on
November 1, 1984. That dramatic increase in the
number of appeals is the citizens howl of dismay at
the unfairness of the nonstatutory District Court
Rule 13. Justice is not a game of procedural
"gotcha".
The party opposing summary judgmeat must
answer within fifteen (15) days, must attach.
evidentiary materials before discovery and has no
absolute right to oral argument. All of these
elements of District Court Rule 13 impede the
ability of the party opposing the motion for
summary judgment to effectively present his side
of the case.
Since Oklahoma Supreme Court Rule 1.36 on
accelerated appeal, reviews only the materials
presented to the trial court, the party opposing the
motion for summary judgment may well find
himself in the position of having to answer the
original Petition, organize and present the material
in opposition to the motion for summary judgment
before adequate discovery, and prepare for an
appeal, all in fifteen (15) days. This is an
unreasonably short amount of time. Motions to
F 3
extend the time, at the discretion of the court, do
not mitigate the conflict of District Court Rule 13
with the Due Process of Law provisions of the
Fourteenth Amendment of the United States
Constitution.
Adequate time, adequate discovery and oral
argument are fundamental rights; not at the
discretion of the court. Please see Goldberg v.
Kelly, 397 U.S.254, 90 S. Ct. 1011.
The implementation of District Court Rule 13
(Lewis v. Phillips Petroleum Co., Okla. App., 559
P.2d 868 (1977)) and Oklahoma Supreme Court
Rule 1.36 (Oklahoma Civil Procedure Forms and
Practice, 2nd Ed., Clyde A. Muchmore, Rel-1/04,
pg 10-55, paragraph 3) are designed for case load
reduction rather than justice. These rules have not
met the objective of case load reduction.
Case load reduction can be met by providing
justice in legal proceedings.
District Court Rule 13 is the first procedure
used in most District Court cases. The dramatic
increase in Oklahoma Supreme Court appeal filings
since November 1, 1948 is the citizens' reaction to
the manifest injustice of District Court Rule 13.
No matter what the attorneys and judges think,
Exhibit 1 indicates the public perceives District
F 4
Court Rule 13 as unjust.
United States Supreme Court Rule 14.1 (g)(i)
states:
(i) Ifreview of a state-court judgment
is sought, specification of the stage in the
proceedings, both in the court of first
instance and in the appellate courts, when
the federal questions sought to be reviewed
were raised; the method or manner of
raising them and the way in which they
were passed on by those courts; and
pertinent quotations of specific portions
of the record or summary thereof, with
specific reference to the places in the
record where the matter appears (e.g., court
opinion, ruling on exception, portion of
court's charge and exception thereto,
assignment of error), so as to show that
the federal question was timely and
properly raised and that this Court has
jurisdiction to review the judgment on a
writ of certiorari. When the portions of
the record relied on under this subparagraph
are voluminous, they shall be included in
the appendix refered to in the
subparagraph l(i).
The taking of my vested personal property by
F5
the court and giving it to the Defendants through a
District Court Rule 13 summary judgment is a
violation of the Due Process of Law provisions of
the Fourteenth Amendment of the United States
Constitution. References to that taking are
throughout my filings in Blaine County, Oklahoma,
District Court Cases CJ-2002-151 and
CJ-2004-121 as well as Oklahoma Supreme Court
Appeals # 99704 and # 101682.
The Pleading Statute Title 12 8 2012 mentions
summary judgment four times: § 201 2(A)(5.)
[motion for], 8 2012(B) [rules], § 2012(C)
[application] and § 2012 [partial]. Nowhere in
Title 12 § 2012 is the location of the rules for
summary judgment specified. The rules do not
have the gravitas of statutes. How can the
application of the nonstatutory, discretionary
District Court Rule 13 rules of summary judgment
be considered "Due Process of Law" ?
As can be seen 1n Plaintiff / Appellant's
Motion for an Extension of Time, filed
approximately September 10, 2005, Plaintiff /
Appellant was cut short on oral argument by the
court at the hearing on summary judgment and not
allowed to complete his oral argument. (Transcript
of proceedings of August 11, 2005, before the
Honorable Ronald G. Franklin, Exhibit C therein,
page 5, lines 19 -21 and page 6, lines 8 - 9).
F 6
Also, in the transcript of the hearing on
Plaintiffs Motion for Recusal of Judge Ronald G.
Franklin, held on January 13, 2005, before the
Honorable Ray Dean Linder, on page 51, lines 4 -
it says: "....and have lost a significant amount of
income-producing property, ...." (underline by
Appellant).
By this, the court has acknowledged the taking
of vested personal] property. That should cause a
significant Fourteenth Amendment, Due Process of
Law, red flag to go up.
PRAYER
By virtue of the Fourteenth Amendment of
the Constitution of the United States and Article 2
Section 7 of the Oklahoma State Constitution and
with Title 12, 88 3236, 3237 in mind, Plaintiff /
Appellant, Robert Olson, respectfully requests the
opportunity to brief his side of the case to the
Oklahoma Supreme Court.
Respectfully submitted,
s\b Dr. Robert Olson
Dr. Robert Olson
9022 E 60th St
Tulsa, Oklahoma 74145
918 252 1987
CERTIFICATE OF MAILING
I hereby certify that on this 2 nd day of
February, 2006, a true and correct copy of the above
and foregoing instrument was mailed via first class
mail with proper postage fully prepaid thereon to:
Robert B. Sartin
Barrow & Grimm, P.C.
610 South Main,
Suite 300
Tulsa, Oklahoma
74119-1248
918 584 1600
Attorneys for
Defendants
Davis Operating
Company,
Wilham H. Davis
Stephen J. Krise
Glenn A. Devoll
Julia C. Rieman
Gungoll, Jackson,
Collins, Box, &
Devoll, P.C.
P.O. Box 1549
Enid, Oklahoma
73702
580 234 0436
Attorneys for
Defendants /
Appellees Continental
Resources, Inc.,Harold
Hamm and Tom Luttrell
Assistant Attorney General
Oklahoma Attorney General's Office
Cinief Litigation Section
4545 North Lincoln Boulevard, Suite 260
Oklahoma City, Oklahoma 73105 - 3498
Blaine County Court Clerk
212 N. Weigle
Watonga, Oklahoma 73772
Judge Ronald G. Franklin
114 West Broadway
Enid, Oklahoma 73702
Judge Ray Dean Linder
P. Q. Box 185
Alva, Oklahoma 73717
s\b Robert Olson
Robert Olson
9022 E 60th St
Tulsa, Oklahoma 74145
918 252 1987
APPENDIX G
IN THE SUPREME COURT OF THE
STATE OF OKLAHOMA
FILED Thursday, February 9, 2006
SUPREME COURT
STATE OF OKLAHOMA
FEB -9 2006
MICHAEL RICHIE
CLERK
THE CLERK IS DIRECTED TO ENTER THE
FOLLOWING ORDERS OF THE COURT:
100,560 American Yellow Checker Cab, Inc.; Tulsa
Yellow Cab, Inc.; and Yellow Cab Inc. v.
David Selver d/b/a Tulsa Taxi; and Yellow
is Us, L:L.C.
Bankruptcy stay remains in effect. New
report shall be filed by May 10, 2006.
101,237 (Cons w/ 102,405) Sarah M. Henry v.
Barry J. Sims
Motion to allow time to complete
briefing of counter appeal is granted.
102,115 Gary Daniel v. Chevrolet Motor Division,
General Motors Corporation
Appellee's motion to indefinitely
suspend proceeding is denied. Appellee
APPENDIX G
is granted to February 22, 2006 to file his
brief.
102,214 Tracy |. Kizer, now Ford v. Marquice M.
Kizer
Appellee's answer brief was accepted
January 31, 2006.
102,279 Stephanie Turner v. Farm Properties, Inc.,
d/b/a The Farm Shopping Center, The
Farm, an Oklahoma General Partnership
Appellant is granted to February 15, 2006
to file her brief.
102,356 Ronny Gene Altman, Trustee of the Ronny
Gene Altman Revocable Trust, and S.N.S.
Oil and Gas Properties, Inc., an Oklahoma
Corporation, individually and on behalf of
all other similiarly situated v. Apache
Corporation
Appellant is granted to February 16, 2006
to file its brief.
102,398 Robert Olson v. Continental Resources,
Inc., an Oklahoma corporation; Harold
Hamm, an individual and President and
Chief Executive Officer of Continental
Resources, Inc.; Tom Luttrell, an individual
and Vice President of Continental
Resources, Inc. (Davis is left out?)
Consideration, if any, of Appellant's
request for permission to file a brief
under Oklahoma Supreme Court Rule
1.36(g) is deferred.
G2
102,825 Melvin Chilcoat v. Gary L. Tate, et al.
Gary Peterson is permitted to withdraw.
The court notes the address of
Appeliants pro se.
102,932 Hong Thi Vu and Lars Pham, as parents
and next of kin to Ken vu Pham, Deceased
v. Linda J. Truitt, M.D., and Linda J.
Truitt, P.C.
Motion to remove from accelerated
procedure is denied.
102,947 Jerome J. Sprenger v. Sonja Sue Austin,
et al.
Appellee's Motion to dismiss is denied.
102,963 Lonnie Thomas v. Diane C. Wheat
Consideration of motion to strike
plaintiff / Appellant's appellate filings
and dismiss appeal and appellant's
motion for leave to comply with
Oklahoma Supreme Court Rules is
deferred to reviewing court.
s\ James B. Winchester
VICE CHIEF JUSTICE
APPENDIX H
This Affidivit was presented in conjunction with the
hearing on the Recusal of Judge Franklin held
before the Honorable Ray Dean Linder on January
13, 2005 in Blaine County , Oklahoma. It also
appears as an exhibit in Plaintiff's Petition for a
Writ of Mandamus filed in the Oklahoma Supreme
Court on January 18, 2005, #101,682 . And U.S.
Supreme Court Case No. 05-1057.
IN THE DISTRICT COURT OF BLAINE COUNTY
STATE OF OKLAHOMA
ROBERT OLSON,
Plaintiff,
vs.
CONTINENTAL RESOURCES, INC..,)
an Oklahoma Corporation, HAROLD ) Gace No.
HAMM, an individual and President )
and Chief Executive Officer of y-d-2002-151
Continental Resources, Inc.; TOM )
LUTTRELL, an individual and )
Vice-President of Continental )
)
Resources, Inc.
DAVIS OPERATING COMPANY, an )
Oklahoma Corporation, WILLIAM H. )
DAVIS, an individual and President )
of Davis Operating Company, )
Defendants. )
APPENDIX H
AFFIDAVIT OF JULIA C. RIEMAN
STATE OF OKLAHOMA |
] SS:
COUNTY OF GARFIELD |]
I, Julia C. Rieman, of the law firm Gungoll,
Jackson, Collins, Box & Devoll, P.C., being of
lawful age, and having first been duly sworn upon
my oath, state as follows:
1. Iam onc of the attorneys for the Defendants,
Continental Resources, Inc., Harold Hamm, and
Tom Luttrell, in the above-captioned case. I have
personal knowledge of the matters hereinafter
referred to, and | am competent to testify as to
these matters.
2. I prepared the notebook for the Court that is
referenced in billing records of Gungoll, Jackson,
Collins, Box & Devoll, P.C. for this case in an entry
dated July 11, 2003.
3. The notebook contained only complete copies
of cases that had been cited by the parties in the
briefing on summary judgment and an index that
listed the style and citation of the cases contained
in the notebook.
4. Ihighlighted the language in the cases that
had been directly quoted in the briefs and I
highlighted the language in the cases that was
relied on by me to support the legal argument made
H-2
in the briefs, even though not directly quoted. I did
not provide any personal commentary, editorial
notes, or make any additions or deletions to the
copies of the cases.
5. I prepared the notebook on a Friday
afternoon, July 11, 2003 as an aid to the Court for a
hearing set for Wednesday July 16, 2003. Because
of the time constraints and the number of cases
included in the notebook (it took me two and a half
hours to prepare a single copy) I only prepared one
copy of the notebook; we did not even have a copy
for ourselves.
6. [personally delivered the notebook to Judge
Ronald G. Franklin. I told him that it was a
notebook of the cases cited in our briefs and aside
from "hello" and "goodby" that was the extent of my
conversation with the Judge when I delivered the
notebook.
7. The notebook did not include some draft
order for the Judge to work from, as claimed by the
Plaintiff, Mr. Olson. | included nothing in the
notebook other than the highlighted copies of the
cases cited in the briefs and an index that listed
the cases.
Further, Affiant sayeth not.
s\ Julia C. Rieman
Subscribed and sworn to before me this 5 th day
of January, 2005.
My Commission Expires:
s\ Virginia L. Schultz
NOTARY PUBLIC
Seal Stamp:
Virginia L. Schultz
Garfield County
Notary Public
#02003675
Exp. 3/17/06
In and for State of Oklahoma
/\er
Mitchie/gad/continental/Olson
APPENDIX I!
IN THE DISTRICT COURT OF BLAINE COUNTY
STATE OF OKLAHOMA
ROBERT OLSON, ) : :
Plaintiff, ) Case No.
-VS- )
Continental Resources, Inc. ) CJ-02-151
(et al. {correction by Olson}) )
)
Defendant (s).
TRANSCRIPT OF PROCEEDINGS
June 17, 2004
The Honorable Ronald G. Franklin, District Judge,
Presiding, in and for Blaine County, Oklahoma.
APPEARANCES:
Plaintiff appears pro se
Mr. Glenn Devoll
Gungoll, Jackson, Collins & Box
P.O. Box 1549
Enid Oklahoma 73702
For Continental Resources
Mr. Robert Sartin
Barrow & Grimm
610 S. Main, Suite 300
Tulsa, Oklahoma 74119
For Davis Operating Company
APPENDIX
Reported by:
Beth M. Malatin, RPR
Registered Professional Reporter
Garfield County Courthouse
Enid, Oklahoma 73701
Transcript Line [ ] Transcript page ( )
{1} THECOURT: CJ 2002-151 Olson v.
Continental. Who [2] wants to go first ?
[3] MR.DEVOLL: I'd be happy to.
(4) THECOURT: All right.
[5] MR.DEVOLL: As the Court is well aware
this case [6] is now over. We filed both an
application for pre-appeal [7’ attorney fees and
costs as well as appeal related attorney [8] fees and
costs. The amounts were set out in the [9]
applications, but for the Court's benefit and for work
that [10] we had done prior to the appeal we had
incurred fees of [11] $31,616.25 and costs of
$160.63 which makes a pre-appeal [12] total of
$31,776.88. Our appeal related fees or costs were
[13] 49,415. Bringing the absolute total to
$41,191,88.
[14] I filed an affidavit in the case, Your Honor.
[ have [15] reviewed our time records. The rate
charged for both [16] attorneys working on the case
was $175 an hour which we [17] believe is a
reasonable fee, hourly rate in the community [18]
[-2
which we work for the type of work that we have
done. This [19] is, the Court knows, a somewhat
specialized area, oil and [20] gas field. That's our
normal hourly rate. As I say I think [21] that's
comparable to other attorneys’ rate that work in
this [22] field in the loca! community. We are going
to stand -- [23] Before 1 do that, no, I wanted to say
one thing to the Court [24] and that is to some
degree part of the work that we did was [25]
generated or caused as a result of Mr. Olson's
somewhat
(3)
[1] unorthodox pleadings that were filed in this case
and his [2] actions, which I know is somewhat typical
in a pro se case, [3] but nonetheless it required us to
respond and to that degree [4] the time expended
was somewhat unusual. But it was [5] generated by
reason of the fact that Mr. Olson's pleadings [6] were
of somewhat unorthodox nature. so we will stand on
[7] our affidavit as the evidence in support of our
attorney [8] fees request and we would ask the Court
to award us, [9] Continental and Mr. Hamm,
$41,191.88.
[10] THE COURT: All right. Why don't we just go
ahead [11] and let you make your presentation.
We'll let Mr. Olson go [12] last and make any
inquiry of either one of you.
[13] MR.SARTIN: Thank you.
[14] Your Honor, Robert Sartin here representing
the [15] Defendants Davis Operating Company and
1-3
William H. Davis. We [16] also filed our amended
application on April 12th, 2004 [17] seeking
attorney fees. Similar to Continental we have [18]
pre-appeal attorney fees and costs and then we also
have [19] post appeal attorney fees and costs. I will
advise the [20] Court the Supreme Court has
entered an order awarding us [21] appeal related
attorney fees. Pre-appeal we had attorneys [22] fees
totaling $19, 192.50. Pre-appeal we had expenses
(23} totaling $111.66 and pre-appeal we had costs
totalling [24] $540.77. For a total of $19,844.93.
Post appeal or during [25] the appeal we had
attorneys fees totaling $9,694. We had
(4)
[1] expenses totaling $196.52. We had costs
totaling $414.65. [2] The post appeal or the post
summary judgment total is [3] $10,305.17, which
makes our total request $30,150.10. [4] Pre-appeal
the attorneys rates, there were two different [5]
attorneys that worked on the case. One was an
associate [6] with our firm, about a third of his time
was at $150 an [7] hour. He had been practicing law
at that time about five [8] years. About two thirds of
his time was $160 an hour. He [9] had been
practicing law about six or seven years at that [10]
time. ‘lhe other time which is actually fairly
minimal was [11] spent by me. When the case
started my rate was $185 an hour {12] and then
some of my time was $195 per hour. I have been [13]
[-4
practicing sixteen years. I believe those rates to be
[14] standard in the community. | believe those to
be fair rates [15} based on the expertise involved,
the various factors that [16] would be present under
Burk. [17] With regard to the appellate
attorneys fees those were [18] done by basically two
different attorneys, again myself I [19] have about
half the time at my rate of $195; another [20]
associate with the firm spent probably the other
half of the [21] time and he is actually in his second
year, his rate was [22] $125 for part of the appeal,
and when he was in his first [23] year of practice the
rate was $85 an hour. Again I would [24] represent
to the Court that I believe those are fair rates [25]
for an attorney of his experience in the community
and those
(5)
[1] types of things. I would also testify that I believe
on the [2] whole the time spent and the costs
incurred were fair and [3] reasonable. I'll join Mr.
Devoll in my testimony concerning [4] the
unusualness of this case. It has been going on for a
[5] long, long time. We similarly were forced to
respond to a [6] number of different pleadings and
they were quite unusual, [7] but we did so and like
I say the time was reasonable. Thank [8] you.
[9] THE COURT: [I'll note that each of you as
[10] attorneys are considered to be under oath here
for these [11] testimonies.
[12] Mr. Olson, do you care to give any testimony
or make [13] any statement ?
[14] MR.OLSON: Well, I think both of these
costs are [15] excessive, especially Continental
Resources costs if you [16] compare it with the costs
of the other attorneys. Other [17] that that there is
not a whole lot I can say.
[18] THE COURT: Do you have any other
evidence you [19] wish to present other that make
the statement that you're [20] making ”
(21] MR.OLSON: No, sir. /
(22]} THECOURT: All right. The Court will take
this [23] under advisement. I'm going to hold it
until such time as [24] we do or do not get a
mandate, then depending on, assuming [25] the
mandate comes down I will enter an order that
(6)
[1] If the mandate, if they decide to rehear it or make
some different decision we'll go from there. Okay.
Now inasmuch [3] as you're here today on the asset
hearing which has been [4] requested I would ask
you to raise your right hand.[5] (Robert Olson
sworn at this time.)
[6] THE COURT: I would ask that you adjourn
perhaps [7] to the jury room if they are through and
proceed.
[8] MRSARTIN: Your Honor, what we'll do is
when we [9] finish we will come back and see you
and address any issues [10] that we need.
[11] THE COURT: Okay. I will probably be back
[12] downstairs by then.
[13] MR. OLSON: Ihave got one request. On [14]
Continental Resources request for attorneys fees
there was a [15] notation for a notebook that they
made for you citing cites. [16] Would you be kind
enough to give me a copy of that notebook ?
[17] THE COURT: Quite frankly I don't have that
[18]
anymore. Since the matter is over with | don't retain
those [19] things.
[20] MR. OLSON: Do you have a copy of that
notebvok ?
[21] MR. DEVOLL: We might. We are going
paperless. [22] That's why I'm hesitating. I don't
know if I have got a [23] copy, a hard copy of it any
longer. We're destroying files [24] and scanning
them in as we go so that's the reason. If I do [25] I
mean --
(7)
[1] MR.OLSON: A printout would work. If you
have [2] scanned it in your files there is always a
printout.
[3] MRDEVOLL: We might work it out. That
will take [4] time.
(5) THE COURT: I'm sure there would be some
costs [6] involved.
[7] MR DEVOLL: yeah, there would be.
[{8} THE COURT: You may be excused.
*
APPENDIX J
THIS OPINION HAS BEEN RELEASED FOR
PUBLICATION BY ORDER OF THE COURT
OF CIVIL APPEALS
IN THE COURT OF CIVIL APPEALS OF THE
STATE OF OKLAHOMA
DIVISION IIT
FILED
COURT OF CIVIL APPEALS
STATE OF OKLAHOMA
FEB 17 2004
MICHAEL S. RICHIE
CLERK
ROBERT OLSON
Plaintiff / Appellant,
ee aie Case No.
)
)
)
» 99,704
CONTINENTAL RESOURCES, )
INC., an Oklahoma corporation; )
HAROLD HAMM, individually )
and as President and Chief )
Executive Officer of Continental )
)
)
)
Resources, Inc.; TOM LUTTRELL,
individually and as Vice
President of Continental Resources,
APPENDIX J
Inc.; DAVIS OPERATING COMPANY, )
an Oklahoma Corporation; and )
WILLIAM H. DAVIS, individually and )
as President of Davis Operating
Company,
Defendants / Appellees.
APPEAL FROM THE DISTRICT COURT
OF BLAINE COUNTY, OKLAHOMA
HONORABLE RONALD G. FRANKLIN,
TRIAL JUDGE
AFFIRMED (1)
Robert Olson,
Tulsa, Oklahoma,
Glenn A. Devoll,
Julia C. Rieman,
GUNGOLL, JACKSON,
COLLINS, BOX, &
DEVOLL, P.C.
Enid Oklahoma,
Robert B. Sartin,
Adam K. Marshall,
BARROW & GRIMM,
P.C.
Tulsa, Oklahoma,
Pro Se,
Plaintiff / Appellant,
For Defendants /
Appellees,
Continental Resources,
Inc., Harold Hamm and
Tom Luttrell,
For Defendants /
Appellees,
Davis Operaring
Company and
William H. Davis.
OPINION BY CAROL M. HANSEN, Judge:
ts Plaintiff / Appellant, Robert Olson, seeks
review of the trial court's order granting summary
judgment in favor of Defendants / Appellees,
Continental Resources, Inc. and its officers
(collectively Continental) and Davis Operating
Company and its President (collectively Davis).
We affirm because Olson submitted no evidentiary
materials establishing a material issue of fact.
2. Olson sued Continental and Davis to quiet
title to an overriding royalty interest (ORRI) in an
oil and gas lease and to recover damages for "sham
legal process" and "civil conspiracy," based upon
the following allegations. The minerals in Section
17, Township 16 North, Range 11 West Indian
Meridian, Blaine County, Oklahoma, were leased
during the years 1981 to 1984, and Olson acquired
an ORRI in the section in (2) 1984. The Math #
1-17 well was drilled and completed as a well
capable of producing oil and gas in commercial
quantities in 1984.
3. Continental acquired a 52% undivided
interest in the leases in 1993 and became the
operator of the Math # 1-17 well. In September
1998, Continental set a bridge plug and removed
tubing from the well.
In February 1999, Continental agreed with Marshal
Oil Corporation (Marshall) to acquire new leases in
Section 17 and sent out letters to all of the working
interest owners recommending the Matli# 1-17 be
plugged. One of the working interest owners refused
to consent to plugging, and Continental assigned its
interest in the wellbore to that owner. That owner
then assigned its interest in the well and the leases
to Davis.
4. Continental filed new leases on Section 17 on
September 13, 1999. On September 20, 1999, Davis
recompleted the well and brought it back into
commercial production. The royalty interest owners
under the old leases accepted shut-in royalty
payments and accepted royalties from subsequent
gas production. In October 1999, Continental sued
Davis and Olson to quiet title in its favor.
Continental and Davis reached a settlement
agreement and dismissed Olson from the suit. The
settlement called for Continental and Davis to
release the old leases and to operate under the new
leases. The releases of the old leases were filed
October 2, 2000. An (3) additional well, the Matli
#2-17, has been drilled and put into production.
Olson has demanded and been refused payment for
his override.
5. Olson asserted his override on the old leases
carried forward to the new leases. He asserted the
Defendants used sham legal process by filing new
leases over the valid old ones, by filing a lawsuit to
drive interest owners out of their origina] interests,
and by releasing the old leases after new ones had
been purchased for the purpose of washing out his
ORRI. He also asserted the Defendants conspired
to release the old leases and operate under the new
ones so as to claim his ORRI was no longer valid.
6. Continental and Davis answered and denied
liability. Davis counterclaimed to recover from
Olson the sum of $7,957.93, which it claimed it
mistakenly paid to Olson as overriding royalty after
the old leases expired or were released.
dl Continental and Davis moved for summary
judgment, submitting into evidence the old leases,
Olson's ORRI, the new leases, certain pleadings
from the 1999 suit, the releases settling the suit,
and affidavits from their officers. The old leases
provided the lessee could surrender the lease by
delivering a release or placing it on record in the
proper county. The ORRI did not contain a clause
providing it applied to extensions and renewals of
the underlying leases. Continental's officer stated
the Matli # 1-17 was no longer producing in paying
quantities at the time Continental set (4) the
bridge plug in 1998. The pleadings from the 1999
suit showed that all the working interest owners
J-5
were parties to the suit and signed releases of the
old leases in settlement of the suit. Davis
submitted copies of a check and spreadsheet
showing the payment it asserts it mistakenly made
to Olson was based on production after the leases
were released.
8. Olson objected to the motions for summary
judgment , but submitted no evidentiary materials
whatsoever. The trial court granted summary
judgment to Continental and Davis on Olson's
claims, concluding,
[T]he old leases have quite probabl[y]
expired under the terms of said leases for
failure to produce. In addition thereto; it
is undisputed or admitted that after the
new leases were acquired and [Davis] had
acquired a(n] interest in the old leases
that a quiet title action was filed in Blaine
County, that the plaintiff was named a
party defendant and that the plaintiff
asked for no affirmative relief and as a
result thereof, a settlement was reached
in said case which resulted in the plaintiff
being dismissed in that lawsuit and the
old leases voluntarily released, thereby
extinguishing any interest the plaintiff
owned in the leases.
The trial court granted summary judgment to Davis
on its counterclaim against Olson, rendering
judgment in the amount of $7957.93. Olson
appeals from this order without appellate briefs in
conformance with the procedures for the appellate
accelerated docket, Okla. Sup. Ct. R. 1.36, 12 O.S.
2001, Ch 15, App. 1. (5)
9. Because a grant of summary judgment
involves purely legal determinations, we will review
the trial court's decision under a de novo standard.
Carmichael v. Beller, 1996 OK 48, 914 P.2d 105i,
1053. A party may move for summary judgment on
the ground that the evidentiary material filed with
the motion shows there is no substantial
controversy as to any material fact. 12 O.S.Supp.
2002, Ch. 2, App. 1, Rule 13(a). A party opposing
summary judgment must file a concise written
statement of the material facts as to which a
genuine issue exists, along with evidentiary
material justifying the opposition to the motion.
Rule 13(b). "All material facts set forth in the
statement of the movant which are supported by
acceptable evidentiary material shall be deemed
admitted for the purpose of summary judgment ....
unless specifically controverted by the statement of
the adverse party which is supported by acceptable
evidentiary material." Jd. If the trial court
determines there is no substantial controversy as
to the material facts and one of the parties is
entitled to judgment as a matter of law, the court
shall render judgment for that party. Rule 13(e).
10. Davis and Continental's statements of fact
were supported by admissable evidence. Olson's
statement controverted their assertions but was
not accompanied by supporting evidentiary
material. Therefore, we will deem Davis and
Continental's statements admitted for the
purpose of summary judgment. (6)
11. Anoverriding royalty interest is created out
of the working interest in an oil and gas lease. It is
an interest in the lease out of which it is carved, and
cannot be a property interest of greater dignity than
the lease itself. XAK Corp. v. SMR Property
management Co., 1998 OK 51, 968 P.2d 1201, 1206-
1207. Therefore, the overriding royalty interest
does not survive termination of the lease, absent
fraud, breach of a fiduciary relationship, or an
agreement otherwise. DeMik v. Cargill, 1971 OK
61, 485 P.2d 229, 233, and Probst v. Hughes, 1930
OK 57, 143 Okla. 11, 286 P. 875, 879.
12. The assignment of an overriding royalty
interest out of the leasehold interest does not by
itself create a fiduciary relationship between
assignor and assignee. Brannan v. Sohio Petroleum
Co. (Brannan IJ), 260 F.2d 621, 622 (10th Cir. 1958)
(applying Oklahoma law). Therefore, there 1s no
relationship of trust and confidence between
assignor and assignee which proscribes the lessee
from acquiring a new lease, unburdened by the
overriding royalty interest, from the owner of the
land to take effect upon the expiration of the
assigned lease. Brannan v. Sohio Petroleum Co.
(Brannan I), 248 F.2d 316, 318 (10th Cir. 1957).
However, a fiduciary relationship may arise from
other factors, such as when no consideration is paid
for an assignment (7) at the time of transfer and
the assignor is to be paid from production. Rees uv.
Briscoe, 1957 OK 174, 315 P.26 758, 763.
13. The rights of an overriding royalty owner in
future leases are protected if the assignment
1 Seealso Hawkins v. Klein, 1926 OK &19, 255 P.570,
575, 124 Okla. 161, and 3 SUMMERS, THE LAW OF OIL
AND GAS, § 554, nn. 62-62 (Perm. ed. Supp. 2003).
contains a clause providing the override applies to
extensions or renewals of the original lease from
which it is carved. For example, in Probst v. Hughes,
1930 OK 57, 286 P. 875, 876, 143 Okla. 11, the
agreement stated the overriding royalty interest
would "apply as to all modifications, renewals of
such lease or extensions that the assignee, his
successors or assigns may secure."The court held a
second lease taken by the lessee from the fee owner
before expiration of the first lease was a renewal of
the first lease, even though the well had ceased
production and was plugged.
14. Similarly, in Thornburgh v. Cole, 1949 OK
167, 207 P.2d 1096, 201 Okla. 609, the assignment
of an overriding royalty interest in a coal mining
lease provided the override would apply to
extensions, renewals, or modifications of the
existing leases. The Court ruled future leases to
the grantor of the interest or its successors would be
bound by the override. 207 P.2d at 1100. The
Thornburgh Court contrasted the facts in its case
with those in La Laguna Ranch Company v. Dodge,
18 Cal.2d 132, 114 P.2d 351, 353. There "the lease
provided that the lessee might surrender the lease
by quit-claimirg to the lessor. This was done and
the overriding royalty interest was thus (8)
extinguished, because the agreement did not
provide thet the overriding royalty should apply to
renewal, extension or modification of the lease."
Thornburgh, 207 P.2d at 1100.
15. The facts in the record before us are like those
in La Laguna Ranch. The oil and gas leases
specifically provided the lessee could at any time
surrender the lease or any part of it by delivering or
mailing a release to the lessor, or by placing a
release of record in the proper county. Oison's ORRI
did not provide it applied to extensions or renewals
of the original lease. There are no circumstances
giving rise to a fiduciary relationship between Olson
and Continental or Davis. Therefore, when all the
working interest owners released the leases on
Section 17, the lease from which Olson's ORRI was
carved ceased to exist, and his ORRI did not survive
the termination of the lease. The trial court did not
err ip granting summery judgment to Davis and
Continental on Olson's claim for quiet title and to
Davis on its claim for overpaid royalties to Olson.
16. Olson also sought to recover for sham legal
process and civil conspirecy. Sham legal process is
a criminal matter. It means the use of an
instrument that is not lawfully issued and that
purports to be a summons, subpoena, judgment,
arrest warrant, search warrant, or other order of a
court or that purports to assert jurisdiction or
authority over or determine or adjudicate the iegal
or equitable status, rights, duties, (9) powers, or
privileges of any person or property. 21 O.S.Supp.
2003 § 1533(H)(1)(a) and (b). The statutes relating
J-11
to quiet title allow an attorney fee to the prevailing
party if a party alleges the adverse claim is sham
legal process as defined in 8 1533 above. 12 0.S.
2001 8 1141(B). Olson submitted no evidence
Continental or Davis used any instrument meeting
the statutory definition of sham legal process. The
trial court did not err in granting summary
judgment against Olson on this claim.
17. In Brock v. Thompson, 1997 OK 127, 948
P.2d 279, 294 (footnotes omitted), the Court stated,
"A civil conspiracy consists of a combination of two
or more persons to do an unlawful act, or to doa
lawful act by unlawful means. Unlike its criminal
counterpart, civil conspiracy itself does not create
liability. To be hable the conspirators must pursue
an independently unlawful purpose or use an
independently unlawful means. There can be no
civil conspiracy where the act complained of and the
means employed are lawful." Olson submitted no
evidence Continental or Davis pursued an
unlawful purpose or used unlawful means. The
trial court did not err in granting summary
judgment against Olson on this claim.
18. For the foregoing reasons, the trial court's
judgment is AFFIRMED.
JOPLIN, J., and MITCHELL, P.J., concur.
APPENDIX _ K
IN THE DISTRICT COURT OF BLAINE COUNTY
STATE OF OKLAHOMA
ROBERT OLSON,
Plaintiff.
-Vs-
CONTINENTAL RESOURCES,
INC., HAROLD HAMM, TOM
LUTTRELL, DAVIS OPERATING
COMPANY, and WILLIAM
HENRY DAVIS.
Defendants. )
TRANSCRIPT OF PROCEEDINGS
Case No.
CJ-2002-151
i a a
Ne’ “Ne” “oe”
The Honorable Ronald G. Franklin, District Judge,
Presiding, in and for Blaine County, Oklahoma.
July 17,2003
APPEARANCES:
Plaintiff appears pro se
Mr. Peter Brolick
Barrow, Gaddis, Griffith & Grimm
610 S. Main, Suite 300
Tulsa, OK 74119
For Defendants Davis Operating Co. &
William Davis
Mr. Glenn Devoll
Gungoll, Jackson, Collins & Box
323 W. Broadway
Enid, OK 73701
For Defts Continental Resources, Inc.,
Hamm, & Luttrell APPENDIX
- Reported by:
Beth M. Malatin, RPR
Registered Professional Reporter
Garfield County Courthouse
Enid, Oklahoma 73701
Transcript Line [ ] Transcript Page ( )
(2)
[1] THECOURT: This will be Olson vs.
Continental [2] Resources, Harold Hamm, Tom
Luttreil, Davis Operating [3] Company, and William
Davis. There have been -- Why don't we [4] announce
our appearances for the record.
[5] MR. DEVOLL: Your Honor, Glenn Devoll on
behalf of [6] Continental Resources, Mr. Luttrell,
and Mr. Hamm.
[7} MR. BROLICK: Peter Brolick for Davis
Operating [8] Company and William H. Davis.
[9] MR.OLSON: Robert Olson pro se.
{10} THE COURT: Allright. There are numerous
motions [11] pending, including a motion for
summary judgment. There is [12] some motions for
additional time to respond to some--or to [13]
shorten some time on discovery near as | can tell.
There is [14] a request by Mr. Olson to continue this
matter I think for [15] the purpose of further
discovery. I believe that is [16] correct.
[17] MR.OLSON: We are bumping up against the
time [18] limits set in the original scheduling order.
[19] THE COURT: Well, what I'm going to deal
K-2
with [20] first is the motion for summary judgment
which has been [21] filed and which has been
responded to and which has been [22] replied to.
And the Court has had an opportunity and has(23]
reviewed all those materials. And I want to
approach it [24] in this manner. There are
individuals that are named in [25] this and I must
tell you that I must deal with what is in
(3)
[1] the motion for summary judgment and response.
I cannot go cutsid< of the record for the purpose of
ruling on this. [3] And as you all are aware that
requires evidentiary proof to [4] be attached and
part of both the motion for summary judgment [5]
and the reply. And based on that I will find that the
Court [6] has found or will find that there is no
evidence that any of [7] the individuals acted outside
of their corporate capacity as [8] individuals. And as
such as to the individuals I am going [9] to sustain
the motion for summary judgment because there is
[10] just no proof that they have done any admissable
proof, that [11] they have done anything else. The
Court cannot speculate on [12] what might be found
or what could come up. I| have to deal [13] with what
is in the motions. [14] As to Continental Resources,
Mr. Olson's claim is [15] based upon his agreement
that he had concerning the lease, [16] and I'm not
going to -- the '84 lease or the -- whichever [17] lease,
the '84 lease I believe. And your claim is [18]
contingent upon that particular claim, and I think
K-3
everybody [19] agrees that if that lease would have
gone away years ago [20] your rights would have gone
away long ago. Everybody agrees [21] to that. And
there was a settlement in the partition suit, [22]
which basically as a result of that that lease was
released. [23] I don't think there is any dispute as to
what happened [24] there. Based on the evidence
that has been presented in the [25] motions and in
the response the Court has no other choice in
(4)
[1] this Court's opinion than to sustain that motion
because [2] there is no evidence of anything other
than a business [3] transaction that was performed
by the companies in that [4] respect. So I am going
to grant both motions for summary [5] or the motion
for summary for all the parties and [6] render
judgment accordingly. And I will grant you an [7]
exception, Mr. Olson.
[8] MR.OLSON: Will the record, transcript of
the [8] record be available ?
(10) THE COURT: Certainly. It's available for
[11] purchase by any of you.
[12] MR.OLSON: Okay. And will you also include
a [13] statement as to your reasoning as to --
[14] THE COURT: I have included that in my
ruling. [15] Yes ?
{16} MR. DEVOLL: That was my question, Judge.
Is the [17] Court going to issue an order ?
[18] THE COURT: I'll issue a written order.
[19] MR. BROLICK: Your Honor, we also, Davis
K-4
Operating [20] company also had a motion for
summary judgment on a payment [21] that was
made for about $7,000. If those leases were not [22]
valid when we madc that payment we would ask
that we be [23] granted summary judgment on
that motion too
[24] THE COURT: That's payments that you
made -- |
[25] MR. BROLICK: After.
(5)
(1) THE COURT: After the fact.
[2] MR. BROLICK: Yes, Your Honor.
[3] THE COURT: I'm going to reserve ruling on
that [4] particular motion until I have an opportunity
to look at it. [5] I quite frankly wasn't concentrating
on that. I need to go [6] back and look at that. Now
what I will do I will give you [7] each an opportunity
to provide me a proposed order including [8] findings
of fact. I think that is what you are asking for.
[9] MR. OLSON: Yes,sir.
{i0} THE COURT: And I'll give you each ten days,
each [11] of you, to present to me proposed findings
of fact and |12] conclusions of law for purpose of -- |
will write my [13] own order however.
[14] MR. DEVOLL: Your Honor, | believe based
on the [15] Court's ruling the balance of the motions
that are [16] pending --
[17] THE COURT: Are moot. That would be
correct. And [18] I'll give you a written, all parties
on that particular one. [19] I apologize for not
K-5
covering it.
[20} MR. BROLICK: It was a small part of the
whole [21] thing I understand. [22] May we be
excused ?
[23] THE COURT: You may be excused.
[24] MR. DEVOLL: Thank you, Your Honor.
[25]
Certified by
s/ Beth Malatin
Beth M. Malatin, RPR
Registered Professional Reporter
APPENDIX L
IN THE DISTRICT COURT OF BLAINE COUNTY
STATE OF OKLAHOMA
ROBERT OLSON,
Plaintiff, Case No.
CF-2004-121
VS.
CONTINENTAL RESOURCES,
Defendant,
TRANSCRIPT OF PROCEEDINGS
CONDUCTED JUNE 16, 2005
BEFORE THE HONORABLE RONALD G.
FRANKLIN, DISTRICT JUDGE,
In and for Blaine County, Oklahoma
APPEARANCES:
Mr. Robert Olson Ms. Julia C. Rieman
9022 E 60th Street 323 W. Broadway
Tulsa, OK 74145 Enid, OK 73701
For the Plaintiff For Continental
Resources
Mr. Robert B. Sartin
610 South Main, Suite 300
Tulsa, OK 74119
APPENDIX L
Reported by:
Beth M. Malatin, RPR
Official Court Reporter
Garfield County Courthouse
Enid, Oklahoma 73701
Page 1
{1} THE COURT: That takes us then to CJ 04-
121.
{2} MR.OLSON: Yes,sir.
(3) THE COURT: Which I believe is your motion.
[4] We have had numerous motions filed in this
case. The [5] motion that we are dealing with now
is this one, what [6] date was the date of filing
on that? Was that December -- [7] The date of
filing is what I'm looking for.
[8] MR.OLSON: Approximately the 14th or
15th day of [9] December, I believe.
[10] THE COURT: All right. I have got it. Finally
[11] got there. All right. Mr. Olson, you may
proceed.
{12} MR. OLSON: Thank you, sir. This
illustration [13] approximate assignment flow
chart of the Matli 1-17 well in [14] Section 17. In
the beginning Vulcan Energy owned a hundred [15]
percent of the leases. I was the geologist that
developed [16] that prospect. My override was
assigned out of those base [17] leases. After the
Matli well was successfully drilled, [18] satisfied
L2
the amendment {habendum!] clause, my override
became a vested [19] established mineral estate.
And as such Continental [20] Resources and Davis
by releasing the leases they had they [21] were
releasing sub leases, not the base lease. As long as
[22] there is a claim from the base lease, they
cannot destroy [23] that claim on the basc lease,
my override, unless the [24] entire lease is forfeited
or extinguished by total [25] abandonment. they
did neither. And that concept is
Page 2
[1] followed in case law in Texas, West Virginia,
Pennsylvania [2] and Wyoming as well as
Oklahoma and Oklahoma the case is {3} Caudel v.
Branden 176 Oklahoma 394.
[4] On summary Judgments, summary judgments
are not [5] favored. All conclusions drawn from the
evidentiary {6] materials must be viewed in the
light most favorable to the [7] opposing party which
was me. The question on whether the [8] lease
expired or was extinguished or surrendered is a [9]
controversial part of the summary judgment order.
A [10] reasonable person might reach a different
conclusion from [11] the facts suggested by the
motion for summary judgment. [12] Granting
summary judgment would be improper. I have
shown [13] your summary judgment order to a
significant number of [14] people. Representative
Fred Perry would draw different [15] conclusions.
L3
I have submitted it or my brother had a clerk [16]
in one of the Texas Appellate District Appeals Court
clerks and [17] she said that the summary judgment
was improper. The summary [18] judgment was
pronounced before adequate discovery. The [19]
summary judgment cannot reach the merits that
are not [20] available, if those merits are not
available to the Court. [21] We didn't see the
operating agreement. We didn't see the [22]
participation agreement. We didn't see the
agreements that [23] Continental Resources tried
to work on prior to Davis [24] acquiring their
interest. If the merits don't appear [25] before the
Court how can the Court make a summary
judgment
Page 3
[1] on the merits. I say the Court cannot.
[2} Material facts were disputed. I significantly
[3] disputed those material facts. The surrender
clause in an [4] oil and gas lease is primarily a
primary term [5] consideration. The surrender
clause looks at actual [6] surrender of the acreage to
reduce delay rental payments. [7] And there was no
acreage released. So the surrender clause [8] was
not applicable because there was no acreage [9]
surrendered.
[10] And the word probably. The word probably in
that 11] summary judgment order indicates an
ambiguity in the [12] facts. The word probably
L4
gives the summary judgment order [13] a floating
basis, not an absolute basis that is required by [14]
summary judgment. We have discussed some of
these [15] already. The points of law that were
missed in the summary [16] judgment. The
surrender clause we have discussed that. [17]
Estate, when the well is drilled and completed the
mineral [18] estate is established in my name for
that override. Okay. |19] The lease assignment
from the base lease where assignments [20] were
not a hundred percent are sub leases. Davis and
[21] Continental Resources had sub leases. They
did not have [22] the base lease.
[23] Fiduciary oil and gas lease contract
relationships. I [24] will discuss that in a minute.
Fiduciary is imposed by [25] power and control.
You will grant that, would you not?
Page 4
[1] THE COURT: Proceed.
[2] MR. OLSON: And the viability of the legal
[3] position of the base leases. Until all activity
ceases on [4] the lease, until the chain of
operatorship is broken, until [5] everyone leaves
and that lease is available to be leased by [6] a
third party, the base lease is still viable and the
chain [7] of operatorship through from Vulcan all
the way to [8] Continental Resources and Davis and
whoever is operating it [9] is not broken. And you
pronounced summary judgment [10] before we had
L5
oral argument on summary judgment. that [11]
restricts my access to present my case. And I asked
you to [12] on your summary judgment order to cite
the law that you [13] relied on to make your legal
decisions and you're duty [14] bound to do that and
it wasn't done.
[15] And in 121 which we are discussing now is
contrary to [16] Title 12 Oklal:oma Statutes
Section 100. The contract [17j structure in an oil
and gas deal, the promoter and his [18] geologist
determine a likely spot to find oil and gas. [19]
Promoter buys the oil and gas leases at a royalty
say 18.75 (20] just for an example number.
Agreement between the promoter [21] and the
geologist, the geologist is to receive one anu a [22]
half percent override, which is what my agreement
was. And [23] say the promoter wants to keep two
and a half percent so [24] this brings the total
royalty burden to 22.75 percent. [25] That's before
the working interest people ever are brought
Page 5
[1] into the picture. This leaves a net revenue of
77.25. At [2] 77.25 when people participate in that
they participate in [3] that subject to the net
revenue, which means they agree to [4] pay all
royalty burdens, override and land owner royalties
[ 5] up to 77.25 percent. So the override owner is a
third [6] party beneficiary of the participation
agreement.
[7] Now the participation agreement denotes
L6
what will be |<) done in an oil and gas deal. The
operating agreement [9] determines how that will
be done. So the participation [10] is the dominate
agreement in an oil and gas deal. [11] The
operating agreement is subject to the participation
[12] agreement which is subject to the net revenue,
which puts [13] the override owner as a third party
creditor beneficiary of [14] the operating agreement
subject to all fiduciary [15] benefits of being a
beneficiary of the contract. All the [16] fiduciary
requirements. The operator has that fiduciary [17]
duty to the override, not to take it, and that was
done [18] here.
[19] This is from the State Commissioners Land
Office in [20] Oklahoma v. Amoco Production
Company. They held that after [21] production is
found in time to preserve the lease the [22] question
with reference to its extensive operation over all
[23] the premises described thereon is one of
diligent and [24] proper development according to
the covenants contained in [25] the lease. Itisa
question of forfeiture not one of
Page 6
[1] expiration. So in order for my override to
disappear you [2] have to declare that entire lease
forfeit. An entire [3] lease, entire ground, the entire
premises forfeit such that [4] it could be leased by
a third party. That's not been done. [5] And it
can't be done because they are still operating it.
L7
[6] And the courts are statutorily mandated to
avoid the effect [7] of forfeiture by giving
consideration to compelling [8] equitable
circumstances. I owned that override. That is a [9]
compelling equitable circumstance. Continental
Resources [10] value that lease at 11.9 BCF left in
it. That means my [11] override was worth about
$937,000 according to the way they [12] valued it.
That's a significant amount of money being [13]
improperly taken from me. Significant amount of
value. It [14] shouldn't have been done. And it was
not done on the [15] merits any place. Summary
judgment was not on the merits [16] and the Court
of Civil Appeals decision was not on the [16] merits.
The Court of Civil Appeals decision was purely an
[18] alleged Rule 13 violation. It did not reach the
merits. [19] And the certiorari, of course that
didn't reach the merits [20] either. That's not
considered merits. So the decision, my [21] loss in
case 151 was not on the merits. So] have a proper
[22] right to refile the case and | have refiled it
under [23] 2004-121.
[24 THECOURT: Mr. Olson, just so I can be
[25] clear, my understanding is your complaint is
that my
Page 7
[1] sustaining the motion for summary judgment
in 151 did not [2] reach the merits and therefore you
are free to persue this [3] matter in the new case.
Is that correct?
L8
[4] MR.OLSON: Would you rephrase that again?
[5] THE COURT: That my sustaining the motion
[6] for summary judgment did not reach the merits
of the case [7] and therefore you're free to file a new
case under [8] CJ 04-121. Is that your position?
[9] MR. OLSON: When did you sustain?
{10} THE COURT: The 121, the motion for
summary [11] was sustained I believe. It was
appealed, [12] affirmed by the Court of Appeals,
certiorari was denied and a [13] mandate was
issued.
[14] MR. OLSON: Yes, sir.
(15) THE COURT: While you don't agree and
some [16] of your folks don't agree that that was
right, our Civil [17] Court of Appeals agreed it was
right and our Supreme Court [18] of the State of
Oklahoma said I was proper in doing that. [19]
Now so my question to you is, I am gathering what
you are [20] trying to say is is because it was a
Rule 13 violation the |21] way you perceive it that
you are free to go ahead and file [22] another action
on the same facts because the issues were [23] not
reached. Is that your position?
(24) MR.OLSON: Yes, sir.
[25] THE COURT: Okay. That's what I'm trying to
Page 8
[1] get to. That is your position, correct?
[2] MR.OLSON: Yes, sir.
[3] THE COURT: Is there any other --- Now put
L9
[4] that aside. I understand that issue. Is there
any other [5] issue that you're raising why the Court
erred in dismissing [6] CJ 04-121?
[7] MR.OLSON: That goes back to the notebook
[8] episode where the opposing counsel supplied
you with a [9] notebook on this case.
(10) THE COURT: That also was overruled by
me, [11] by the presiding district judge, and
certiorari was denied by [12] the Supreme Court.
They declined to hear it.
[13] MR.OLSON: They voted seven to two to
let [14] you get away with it.
[15] THE COURT: Otherwise seven of the
Supreme [16] Court Justices of Oklahoma agreed
that I was correct in not [17] recusing to descent.
[18] MR.OLSON: No, sir. they agreed not to
[19] disqualify you for that.
(20]} THE COURT: That's what I mean.
[21] MR.OLSON: That's quite different from
[22] saying that you did it properly.
(23] THE COURT: They basically said I did not
[24] have to disqualify.
[25] MR.OLSON: Yes.
Page 9
[11] THECOURT: Allright. I mean I'll buy that,
[2] sure.
[3] MR.OLSON: Okay. When you accepted that
[4] notebook ---
(5) THE COURT: That has been decided. It's
[6] over, Mr. Olson. That portion is over. I'm not
L10
[7] disqualifying and they said I didn't have to.
[8] MR. OLSON: That's fine.
[9] THECOURT: And it's not an issue in this
[10] case. Where we are right now is, and you need
to [11] understand the motion for summary
judgment has been [12] sustained in 151. The
mandate has been issued. that order [13] is final.
Even I cannot change that order. that is res [14]
judicata, otherwise you are prohibited from filing
any [15] further action on those set of facts that you
presented in [16] 151. I believe that to be the law.
Do you believe it not [17] to be the law?
[18] MR.OLSON: One hundred says that if I
lost [19] not on the merits I have the right to refile
it. So I have to [20] prove that my loss was not on
the merits. If I can [21] prove that my loss was not
on the merits ---
[22] THE COURT: I understand your argument
now.
[23] MR.OLSON: Okay. Then I have the right
[24] to refile.
[25] THE COURT: All right. anything further you
Page 10
[1] want to say on that respect. I appreciate you
clearing [2] that up. I now understand where you're
headed. Okay. [3] Anything further?
[4] MR.OLSON: No.
[5] THECOURT: Care to respond to
(6] Rieman?
[7] MS. RIEMAN: Your Honor, first I apologize,
L11
[8] I understood that the motion of Mr. Olson that
was going to [9] be heard today was his motion
requesting a hearing on his [10] motion for new trial
and we responded to that, that we [11] thought the
request was mooted by the mandate and by the [12]
Supreme Court's refusal to issue the writ to remove
Your {13] Honor from this case. As you pointed out
to Mr. Oison the [14] summary judgment is final,
it's res judicata, and they [15] found that the
alleged improprieties Mr. Olson complains of [16]
were not sufficient to justify disqualification, so I
[17] believe the issues raised by Mr. Olson's motion
for new [18] trial are moot and it should be denied.
[19] THE COURT: Care to respond?
[20] MR. SARTIN: I[)just want to further what
Miss [21] Rieman said, Your Honor. I believe that
a summary judgment [22] motion is on the merits.
I think that by granting summary [23] judgment
the Court is saying that there is not any dispute
[24] as to any material fact and that as matter of
law judgment [25] can be entered. That necessarily
requires a review of the
Page 11
[1] facts, a review of the merits of the Plaintiff's
claim [2] having granted that I think it is on the
merits and [ think [3] it is res judicata, barred to be
brought again.
[4] THE COURT: Care to respond to that?
[5] MR. OLSON: I think that it is not res
L12
{6] judicata. I think I can prove that the summary
judgment order [7] was not on the merits and the
Court of Civil Appeals [8] decision was not on the
merits. And so since neither one [9] of these actions
reached the merits of the case that I have [10] a
proper right to refile the case.
[11] THE COURT: All mght. Thank you very
much, [12] Mr. Olson. I understand where you're
coming from. The [13] Court is of the opinion
however that it is res judicata on [14] the mandate
and absence new evidence of which I have heard
[15] none there is no right to proceed any further.
And as such [16] I'm going to deny your motion for a
new trial and grant you [17] an exception.
[18] MR.OLSON: Because I definitely am going
to [19] object to it and I'm definitely going to appeal
it.
[20] THE COURT: I assumed that you would,
[21] Mr. Olson.
(22) Anything further?
[23] MR.SARTIN: No, Your Honor.
[24] THE COURT: Miss Rieman, do you want to
try [25] to draw a journal entry to that?
Page 12
[1] MS. RIEMAN: Certainly.
(2} THECOURT: Justa simple denial is what
it [3] is, and exception allowed.
* * #
{1} STATE OF OKLAHOMA
[2} COUNTY OF GARFIELD
[3] CERTIFICATE
[4]
[5] 1, Beth M. Malatin, Registered Professional
[6] Reporter duly licensed and qualified in and for
the State of [7] Oklahoma, DO HEREBY CERTIFY
that on the 16th day of June, [ 8] 2005, at the
County Courthouse in the city of Watonga, County
[9] of Blaine, State of Oklahoma, commencing at
10:00 a.m. , that [10] I reported by means of
stenotype, a true, correct and [11] complete
verbatim record of the testimony then and there
[12] conducted in the foregoing-styled cause.
[13] I FURTHER CERTIFY that since said date
I have [14] correctly transcribed my stenographic
notes then and [15] there so taken; and, further,
that the foregoing, [16] consisting of 14 pages is a
true, correct and [17] complete transcript of the
record which I made at such [18] hearing, as
reflected by my stenographic notes then [19] and
there so taken.
[20] IN WITNESS WHEREOF, [ hereunto set my
hand and [21] affix my official stamp at Enid, OK
this 6th day of July, 2005.
s\b Beth M. Malatin
Beth M. Malatin
Oklahoma Certified
Shorthand Reporter
Certificate No. 0899
Exp. Date: December 31 200-
Beth M. Malatin,
RPR Cert #899
APPENDIX L(a)
IN THE DISTRICT COURT OF BLAINE COUNTY
STATE OF OKLAHOMA
ROBERT OLSON,
Plaintiff,
)
) Case No.
vs y ©
)
)
J-2004-121
CONTINENTAL RESOURCES,
Defendant.
TRANSCRIPT OF PROCEEDINGS
CONDUCTED AUGUST 11, 2005
BEFORE THE HONORABLE RONALD G.
FRANKLIN, DISTRICT JUDGE, In and for
Blaine County, Okiahoma
APPEARANCES:
Mr. Robert Olson
9022 E 60th Street
Tulsa, Oklahoma 74145
For the Plaintiff
Ms. Julia C. Rieman
323 W. Broadway
Enid, OK 73701
For Continental Resources
Mr. Robert B. Sartin
610 Soith Main, Suite 300
Tulsa, OK 74119
Reported by:
Beth M. Malatin, RPR
Official Court Reporter
Gasfield County Courthouse
Enid, Oklahoma 73701
Page 1
[1] THE COURT: We are back then to CJ 04-121,
[2] Olson v. Continental Resources, Harold Hamm,
and Tom [3] Luttrell, et al, Motion for summary
judgment filed I [4] believe--- Mr. Olson, do you want
to come on up? --- [5] filed by Continental.
(6] MS. RIEMAN: Yes sir. Very briefly ---
[7} THE COURT: Just a minute here. Let [8] Mr.
Olson get up here.
[9] MR.SARTIN: Your Honor, may I also note my
{10] appearance for the record. Robert Sartin here
for Davis [11] Operating Company and William H.
Davis.
[12] THE COURT: Thank you. All right. This is
[13] Continental] Resources, Harold Hamm, Tom
Luttrell's motion [14] for summary judgment. The
Court has previously sustained a [15] motion for
summary judgment on behalf of Davis Operating
[16] Company and William H. Davis which is on
appeal I believe. [17] Is that correct?
[18] MS. RIEMAN: That's correct, Your Honor. [19]
Well, actually I think yours was a motion to dismiss,
[20] wasn't it?
[21] MR. SARTIN: Your Honor, ours was a [22]
Lia) 2
dismissal motion.
[23] THE COURT: That is correct.
[24] MS. RIEMAN: This is Continental, as the [25]
Court notes Continental, Harold Hamm, and Tom
Luttrell's
Page 2
[1] motion and this motion is asking the Court to
grant us [2] summary judgment on the basis of
clained{s} preclusion. The [3] Court is very familiar
with the facts of this case. I'm [4] not going to go
over all those. As we have started in our [5] reply
we think this is a very simple matter. The one
thing [6] I did want to bring to the Court's attention
because its [7] not mentioned in the briefs, Mr.
Olson's argument and [8] response to this motion is
essentially that the summary [9] judgment in the
2002 case was not on the merits. There [10] are
cases cited in the brief at page five that hold that
[11] summary judgment is always on the merits,
regardless of the [12] inadequacy of the response of
the non-moving party. It's [13] not a default
judgment. The thing that I didn't point out [14] in
my briefing that I would like to point out now and
this [15] is from 2004 Supreme Court case, 2004
OK 84. The case is [16] Head v. McCracken. And
this is probably more for [17] Mr. Olson's benefit.
I'm sure the Court is aware of this. [18] But on
review summary judgment is reviewed by a de novo
[19] standard. And what the Court says in this
case that means [20] is that in such a review the
Lia) 3
Appellate Court engages in a [21] plenary
independent and nondeferential reexamination of
the [22] trial court's ruling. The summary judgment
was affirmed by [23] the Court of Appeals in the
first appeal. It was affirmed [24] on the basis of
the recird that went up to that court which [25] did
not include this now infamous notebook that has
caused
Page 3
[1] Mr. Olson difficulty in this case. That Court
had to look [2] at the record and determine whether
or not Continental, [3] Harold Hamm and Tom
Luttrell were entitled to summary [4] judgment,
without any dife}fference to the decision made by
([5} this Court, and it affirmed summary judgment.
Cert was [6] denied. Mandate issued. That
judgment is final. This [7] petition asserts the
same claims. We're entitled to [8] summary
judgment on claimed{s} preclusion basis. Thank
you, [9] Your Honor.
[10] THE COURT: Mr. Olson, you may respond.
{11] MR. OLSON: Yes sir. The claim that the [12]
Court of Civil Appeals affirmed it is correct but
how the [13] Court of Civil Appeals affirmed it is
germane. They [14] affirmed it on a Rule 13
violation. They assumed or |15]asserted a Rule 13
violation. It actually didn't exist. [16] But they
affirmed it on basis of a perceived Rule 13 [17]
violation which does not go to the merits. And
certiorari doesn't go to the merits.
L(a) 4
[19} Now I would like to dispute the discussion of
[20] plaintiff or the undisputed facts that the
plaintiff or that [21] defendants assert here. On
August 11th, 2003 this Court [22] granted summary
judgment as to the defendants on all of [23]
plaintiff's claims against them in case CJ 2002-151.
(24] Plaintiff contends that none of his complaints
had been [25] adjudicated because the original
summary judgment was not
Page 4
[1] on the merits. The statement from Judge
Franklin's [2] Conclusions of law based on the
admissable evidence {'} is [3] undisputed that the
old leases have quite probably expired [4] under the
terms of said leases for failure to produce{'t.
[5] First, the word {'} probably {'} indicates
ambiguity in the [6] legal status of the leases.
Ambiguity in the Court's [7] mind. Second, the well
was completed as a producing gas [8] well, the
addendum {habendum} clause was satisfied, and at
that time [9] the base leases were converted into a
vested mineral estate [10] along with my override.
So, for that, when it's converted [11] into a vested
mineral estate it's the estate forfeiture [12]
statutes that apply, not lease expiration statutes.
[13] And then in number nine on your summary
judgment you [14] say plaintiff's right arose solely
from the old leases and [15] remain only through
the term of the old leases which [16] provided that
Lia) 5
the lessee had the right to unilaterally [17]
terminate a lease by a voluntary release thereof.
That [18] would be fine except they didn't have
leases. They had [19] assigned subleases. The
release of subleases does not [20] affect the status
of the base lease.
(21] THE COURT: Mr. Olson, you know we have
[22] argued this case and the facts of the case.
What we're [23] needing to argue here is the legal
issue concerning whether [24] your claim is
precluded by the Supreme Court. I have heard [25]
you argue these very same things numerous times
and I don't
Page 5
[1] need to hear them again. So 1 would appreciate
it if you [2] would keep your argument to the legal
issues in front of [3] the Court and that is is{n} this
case precluded by the fact [4] that it has been, all
the facts were in the old case. It [5] was affirmed.
Certiorari denied. Does that preclude you [6] from
proceeding. That's what I want to focus on.
[7] MR.OLSON: Well, Your Honor, in order to
[8] focus on that I believe it’s necessary to contrast
what [9] actually happened versus the actual legal
situation on the [10] ground concerning those leases.
Your summary judgment was [11] done on lease
expiration and voluntary release of leases.
{12} THE COURT: I understand. that's what
went [13] up and was in the summary judgment ---
L(a) 6
(14) MR.OLSON: Yes.
[15] THE COURT: That's what was affirmed.
[16] MR.OLSON: That's what was affirmed.
[17] That isa fictitious legal situation on the
ground [18] because ---
[19] THE COURT: Mr. Olson, I don't want to cut
[20] you short but the Appellate Court and the
Supreme Court [21] have both said it's not fictitious.
thta is the rule and [22] that is the case. What I
held is what they held. You're [23] precluded from
going any further on that the way I [24] understand
the Supreme Court's rulings. And as such based
[25] that I am going to sustain their motion for
summary
Page 6
[1] judgment because you are precluded. I find
nothing in your [2] responses that indicate there is
anything that has not been [3] litigated or you did
not have the opportunity to litigate [4] in the first
case. So there is nothing new that you're [5} raising
and as such I will sustain the motion for summary
[6] judgment and grant you an exception.
[7] MS. RIEMAN: ‘Thank you, Your Honor.
[8] MR.OLSON: _ Ido object, Your Honor,
because [9] | was not allowed to complete my ---
{10} THECOURT: I understand and I'll grant
you [11] an exception to that. You may be excused.
[12] MS. RIEMAN: Thank you.
[13] THECOURT: Do you want to draw a
journai [14] entry please?
[15] MS. RIEMAN: Yes, sir.
* * *
[1] STATE OF OKLAHOMA
[2] COUNTY OF GARFIELD
[3]
[4] CERTIFICATE
(5) I, Beth M. Malatin, Registered Professional
[6] Reporter duly licensed and qualified in and for
the State [7] of Oklahoma, DO HEREBY CERTIFY
that on the 11th day of [8] August, 2005, at the
County Courthouse in the city of [9] Watonga,
County of Blaine, State of Oklahoma, commencing
at [10] 10:00 a.m., that I reported by means of
stenotype, a true, [11] correct and complete
verbatim record of the testimony then [12] and
there conducted in the foregoing-styled cause.
[13] I FURTHER CERTIFY that since said date I
have [14] correctly transcribed my stenographic
notes then and there [15] so taken; and, further,
that the foregoing, consisting of [18] 8 pages isa
true, correct and complete transcript of the [17]
record which I made at such hearing, as reflected by
my [18] stenographic notes then and there so taken.
(19} IN WITNESS WHEREOF, | hereunto set my
hand and [20] affix my official stamp at Enid, OK
L(a) 8
this 22nd day of AugusL9a)t, 2005.
s\b Beth M. Malatin
Beth M. Malatin RPR Cert # 899
Beth M. Malatin
Oklahoma Certified Shorthand Reporter
Certificate No. 0899
Exp. Date: December 31, 2006
APPENDIX M
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
U.S.C.S. Const. Amend. 14,8 1 (2005)
Sec. 1. [citizens of the United States]
All persons born or naturalized in the
United States, and subject to the
jurisdiction thereof, are citizens of the
United States and of the State wherein
they reside. No State shall make or
enforce any law which shall abridge
the privileges or immunities of citizens
of the United States; nor shall any State
deprive any person of life, liberty, or
nroperty, without due process of law;
nor deny to any person within its
jurisdiction the equal protection of
the laws.
28 U.S.C.A.'9 455 (a)
Any justice, judge, or magistrate judge
of the United States shall disqualify
himself in any proceeding in which
his impartiality might reasonably be
questioned.
APPENDIX M
APPENDIX N
Oklahoma Statutes Involved
Oklahoma Court Rules and Procedure
State
2005
THOMSON
WEST
CHAPTER 16
VACATION AND MODIFICATION OF
JUDGMENTS BY TRIAL COURT
TITLE 12, OKLAHOMA STATUTES
Section 1031. District court, power to
vacate or modify its judgments, when
The district court shall have power to vacate or
modify its own judgments or orders within the
times prescribed hereafter:
1. By granting a new trial for the causc, within
the time and in the manner prescribed in Sections
651 through 655 of this title;
2: As authorized in subsection C of Section
2004 of this title where the defendant had no
actual notice of the pendency of the action at the
time of the filing of the judgment or order;
3. For mistake, neglect, or omission of the clerk
APPENDIX N
or irregularity in obtaining a judgment or order;
4. For fraud, practiced by the successful party,
in obtaining a judgment or order;
5. For erroneous proceeding against an infant,
or a person of unsound mind, where the condition of
such defendant does not appear in the record, nor
the error in the proceedings;
6. For the death of one of the parties before the
judgment in the action;
7. For unavoidable casualty or misfortune,
preventing the party from prosecuting or defending;
8. For errors in a judgment, shown by an infant
in twelve (12) months after arriving at full age, as
prescribed in Section 700 of this title; or
9. For taking judgments upon warrants of
attorney for more than was due to the plaintiff,
when the defendant was not summoned or
otherwise legally notified of the time and place of
taking such judgment.
R.L.1910, Section 5267; Laws 1969, c. 3064, Section 3, emerg.
eff. April 28, 1969; Laws 1999, c. 293, Section 9, eff.
Nov. 1, 1999.
Section 1031.1. Authorization to correct, open,
modify or vacate judgments — Time — Notice
A. Acourt may correct, open, modify or vacate a
judgment, decree, or appealable order on its own
initiative not later than thirty (30) days after the
judgment, decree, or appealable order prepared in
N-2
conformance with Section 696.3 of this title has
been filed with the court clerk. Notice of the court's
action shall be given as directed by the court to all
affected parties.
B. On Motion of a party made not later that
thirty (30) days after a judgment, decree, or
appealable order prepared in conformance with
Section 696.3 of this title has been filed with the
court clerk, the court may correct, open, modify, or
vacate the judgment, decree, or appealable order.
If the moving party did not prepare the judgment,
decree, or appealable order, and Section 696.2 of
this title required a copy of the judgment, decree, or
appealable order to be mailed to the moving party,
and the court records do not reflect the mailing of a
copy of the judgment, decree, or appealable order to
the moving party within three (3) days, exclusive of
weekends and holidays, after the filing of the
judgment, decree, or appealable order, the motion
to correct, open, modify, or vacate the judgment,
decree, or appealable order may be filed no later
than thirty (30) days after the earliest date on
which the court records show that a copy of the
judgment, decree, or appealable order was mailed
to the moving party. The moving party shall give
notice to all affected parties. A motion to correct,
open, modify, or vacate a judgment or decree filed
after the announcement of the decision on all issues
in the case but before the filing of the judgment or
N-3
decree shall be deemed filed immediately after the
filing of the judgment or decree.
C. After thirty (30) days after a judgment,
decree, or appealable order has been filed,
proceedings to vacate or modify the judgment,
decree, or appealable order shall be by petition in
conformance with Section 1033 of this title.
Laws 1969, c. 304, Section 1, emerg. eff. April 28, 1969; Laws
1990, c. 251, Section 15, eff. Jan. 1, 1991; Laws 1991, c. 251
Section 19, eff. June 1, 1991; Laws 1993, c. 351, Section 25,
eff. Oct. 1, 1993; Laws 1994, c. 343, Section 6, eff. Sept. 1,
1994; Laws 1997, c. 102, Section 9, eff. May 1, 1997; Laws
1999, c. 293, Section 10, eff. Nov. 1, 1999.
Section 1032. Proceedings to be by motion——
Notice
The proceedings to correct mistakes or omissions
of the clerk, or irregularity in obtaining a judgment
or order, shall be by motion, upon reasonable notice
to the adverse party or his attorney in the action.
R.L..1910, Section 5268; Laws 1969, c. 304, Section 4, emerg.
eff, April 28, 1969; Laws 1993, c. 351, Section 26,
eff. Oct. 1, 1993.
Section 1033. Proceedings by petition,
when — Summons
If more than thirty (30) days after a judgment,
N-4
decree, or appealable order has been filed,
proceedings to vacate or modify the judgment,
decree, or appealable order, on the grounds
mentioned in paragraphs 2, 4, 5, 6, 7, 8, and 9 of
Section 1031 of this title, shall be by petition,
verified by affidavit, setting forth the judgment,
decree, or appealable order, the grounds to vacate
or modify it, and the defenses to the action, if the
party applying was defendant. On this petition, a
summons shall issue and be served as in the
commencement of a civil action
R.L.1910, Section 5269; Laws 1999. c. 293. Section 11. eff
Nov 1, 1999.
Section 1034. Trial of application to vacate
The court may first try and decide upon the
grounds to vacate or modify a judgment or order
before trying or deciding upon the validity of the
defense or cause of action
R.L.1910, Section 5270
Section 1035. Liens and securities preserved
If a judgment is modified, all liens and securities
obtained under it shall be preserved to the modified
judgment
R.L.1910 Section 5271; Laws 1990. c. 251, Section 16, eff
Jan. 1, 1991.
Section 1036 Suspending proceedings —Bond
The party seeking to vacate or modify a judgment
or order, may obtain an order suspending
proceedings on the whole or part thereof; Which
order may be granted by the court, or any judge
thereof, upon its being rendered probable, by
affidavit, or by exhibition of the record, that the
party is entitled to have such judgment or order
vacated or modified. On the granting of any such
order, the court, or judge, may require the party
obtaining any such order to enter into an
undertaking to the adverse party to pay all
damages that may be caused by granting of the
same.
R.L.1910, 5272.
Section 1037. Suspension where judgment
given prematurely
When the judgment was rendered before the
action stood for trial, the suspension may be granted,
a
as provided in the last section, although no valid
defense to the action is shown; and the court shall]
make such orders, concerning the executions to be
issued on the judgment as shall give to the
defendant the same rights of delay he would have
had if the yadgment had been rendered at the
proper time.
R.L.1910, Section 5273
1. Title 12, Section 1036
Section 1038. Limitations
Proceedings to vacate or modify a judgment,
decree, or order, for the causes mentioned in
paragraphs 4, 5, and 7 of Section 1031 of this title
must be commenced within two (2) years after the
filing c the judgment, decree or order, unless the
party entitled thereto be an infant, or a person of
unsound mind and then within two (2) years after
removal of such disability. Proceedings for the
causes mentioned in paragraphs 3 and 6 of Section
1031 of this title, shall be within three (3) years,
and in paragraph 9 of Section 1031 of this title,
within one (1) year after the Defendant has notice
of the judgment, decree or order. A void judgment,
decree or order may be vacated at any time, on
motion of a party, or any person affected thereby.
R.L.1910, Section 5274: Laws 1990, c. 251, Section 17, eff
Jan. 1, 1991:Laws 1991, c. 251, Section 20, eff. June 1, 1991;
Laws 1993. c. 35L. Section 27. eff. Oct. 1, 1993
APPENDIX O
Exerpts from the
OKLAHOMA RULES OF PROFESSIONAL
‘CONDUCT
Effective July 1, 1988
Including Amendments Received Through
November 1, 2004
Research Notes
Annotations to the Oklahoma Rules of Professional
Conduct are available in Oklahoma Statutes
Annotated, Title 5, Chapter 1, Appendix 3-A, and in
OK-RULES database on Westlaw. Westlaw may also
be used to search for specific terms in cort rules or to
update court rules. See the OK-RULES and
OK-ORDERS Scope Screens for further information.
Amendments to these rules are published , as received,
in the P.38d and Oklahoma Decisions advance sheets.
RULE 1.2 SCOPE OF REPRESENTATION
(a) A lawyer shall abide by a client's decisions
concerning the objectives of representation, subject
to paragraphs (b), (c), and (d) and shall consult with
the client as to the means by which they are to be
pursued. A lawyer shall abide by a client's decision
APPENDIX O
whether to accept an offer of settlement of a matter.
In a criminal case, the lawyer shall abide by the
client's decision, after consultation with the lawyer,
as to a plea to be entered, whether to waive jury
trial and whether the client will testify.
(b) A lawyer may limit the objectives of the
representation if the client consents after
consultation.
(c) A lawyer shall not counsel a client to engage,
or assist a client, in conduct that the lawyer knows
is criminal! or fraudulent, but a lawyer may discuss
the legal consequences of any proposed course of
conduct with a client and may counSel or assist a
client to make a good faith effort to determine the
validity, scope, meaning or application of the law.
(d) When a lawyer knows that a client expects
assistance not permitted by the Rules of
Professional Conduct or other law, the lawyer shall
consult with the client regarding the relevant
simitation on the lawyer's conduct.
[Adopted effective July 1, 1998.]
RULE 3.3 CONDOR TOWARD THE TRIBUNAL
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law toa
tribunal;
(2) fail to disclose a fact to a tribunal when
disclosure is necessary to avoid assisting a criminal
or fraudulent act by a client.
(3) fail to disclose to the tribunal legal authority
Q-2
in the controling jurisdiction known to the lawyer to
be directly adverse to the position of the client and
not disclosed by opposing counsel; or
(4) offer evidence that the lawyer knows to be
false. If a lawyer has offered material evidence and
comes to know of its falsity, the lawyer shal] take
the following remedial measures.
(A) When a client has offered false evidence,
the lawyer shall promptly call upon the client to
rectify the same; if the client refuses or is unable to
do so, the lawyer shall promptly reveal its false
character to the tribunal; or
(B) When a person other than a client has
offered false evidence, the lawyer shall promptly
reveal its false character to the tribunal.
(b) The duties stated in paragraph (a) are
continuing and apply even if compliance required
disclosure of information otherwise protected by
Rule 1.6.
Misleading legal Argument. Legal argument
based on a knowingly false representation of law
constitutes dishonesty toward the tribunal. A
lawyer is not required to make a disinterested
exposition of the law, but must recognize the
existence of pertinent legal authorities. Furthermore,
as stated in Paragraph (a)(3), an advocate has a
duty to disclose directly adverse authority in the
controling jurisdiction which has not been disclosed
by the opposing party. The underlying concept is
O-3
that legal argument is a discussion seeking to
determine the legal premises properly applicable to
the case.
RULE 3.5 IMPARTIALITY AND
DECORUM OF THE TRIBUNAL
A lawyer shall not:
(a) seek to influence a judge, juror, prospective
juror or other decision maker except as permitted
by law or the rules of the tribunal.
(b) in an adversary proceeding, communicate or
cause another to communicate as to the merits of
the cause, with a judge or an official before when the
proceeding is pending except:
(1) in the course of the official proceeding in the
cause;
(2) in writing if the lawyer promptly delivers a
copy of the writing to the opposing counsel or to the
adverse party if not represented by a lawyer;
(3) orally upon notice to opposing counsel or to
the adverse party if not represented by a lawyer;
and
(4) as otherwise authorized by law; or
(c) communicate directly or through another with
a juror or prospective juror except as permitted by
law or the rules of court; or
(d) engage in conduct intended to disrupt a
tribunal.
[Adopted effective July 1, 1988.]
RULE 8.4 MISCONDUCT
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of
Professional Conduct, knowingly assist or induce
another to do so, or do so through the acts of
another;
(b) commit a criminal act that reflects adversly
on the lawyer's honesty, trustworthiness or fitness
as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud,
deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the
administration of justice;
(e) state or imply an ability to influence
improperly a government agency or official;
(f) Knowingly assist a judge or judicial officer in
conduct that is a violation of applicable rules of
judicial conduct or other law.
[Adopted effective July 1, 1988.]
APPENDIX P
Exerpt from the
CODE OF JUDICIAL CONDUCT
Effective November 1, 1997
Including Amendments received through
November 1, 2003
Research note
Annotations to the Code of Judicial Conduct are
available in Oklahoma Statutes annotated, Title 5
Chapter 1, Appendix 4, and in the OK-RULES
database on Westlaw. Westlaw may also be used to
search for specific terms in court rules or to update
court rules. See the OK-RULES and OK-ORDERS
Scope Screens for further information.
Amendments to these rules are published, as
received, in the P.38d and Oklahoma Decisions
advance sheets.
Canon
1. AJudge Should Uphold the Integrity and
Independence of the Judiciary.
2. AJudge Should Avoid Impropriety and the
Appearance of Impropriety in All of the
Judge's Activities.
APPENDIX P
CANON 1. A JUDGE SHOULD UPHOLD THE
INTEGRITY AND INDEPENDENCE OF THE
JUDICIARY
An independent and honorable judiciary is
indispensable to justice in our society. A judge
should participate in establishing, maintaining
and enforcing high standards of conduct, and should
personally observe those standards so that the
integrity and independence of the judiciary will be
preserved. The provisions of this Code are to be
construed and applied to further that objective.
[Effective November 1, 1997.]
CANON 2. A JUDGE SHOULD AVOID
IMPROPRIETY AND THE APPEARANCE OF
IMPROPRIETY IN ALL OF THE JUDGE'S
ACTIVITIES.
A. A judge should respect and comply with the law
and act at all times in a manner that promotes
public confidence in the integrity and impartiality
of the judiciary.
B. A judge should not allow family, social,
political or other relationships to influence the
judge's judicial conduct ot judgment. A judge
should not lend the prestige of judicial office to
advance the private interests of the judge or others;
nor should a judge convey or permit others to convey
the impression that they are in a special position to
influence the judge. A judge should not testify
voluntarily as a character witness.
[Effective November 1, 1977.]
CANON 3. A JUDGE SHOULD PERFORM
THE DUTIES OF JUDICIAL OFFICE
IMPARTIALLY AND DILIGENTLY
A. Judicial Duties in General. The judicial
duties of a judge take precedence over all the judge's
other activities. The judge's judicial duties include
all the duties of the judge's office proscribed by law.
In performance of those duties, the following
standards apply.
B. Adjudicative Responsibilities.
(1) A judge should be faithful to the law and
maintain professional competence in it. A judge
should not be swayed by partisan interests, public
clamor or fear of criticism.
(2) A judge should require order and decorum in
proceedings before the judge.
(3) A judge should be patient, dignified and
courteous to litigants, jurors, witnesses, lawyers
and others with whom he the judge deals in official
capacity, and should require similar conduct of
lawyers, and of his staff, court officials and others
P-3
subject to the judge's direction and control.
(4) A judge should perform judicial duties
without bias or prejudice. A judge should not, in the
performance of judicial duties, by words or conduct,
manifest bias or prejudice, including but not limited
to bias or prejudice based upon race, sex, religion,
national origin, disability, age, sexual orientation or
socioeconomic status, and should not permit staff,
court officials and others subject to the judge's
direction and control to do so.
(5) A judge should require lawyers in proceedings
before the judge to refrain from manifesting, by
words or conduct, bias or prejudice based upon race,
sex, religion, national origin, disability, age, sexual
orientation, or socioeconomic status, against parties,
witnesses, counsel or others. This Section 3B(5)
does not preclude legitimate advocacy when race,
sex, religion, national origin, disability, age, sexual
orientation or socioeconomic status, or other
similar factors, are issues in the proceeding.
(6) A judge should accord to every person who
has a legal interest in a proceeding, or that person's
lawyer, the right to be heard according to law. A
judge should not initiate, nor consider ex parte
communications, or consider other communications
made to the judge outside the presence of the parties
concerning a pending or impending proceeding
except that:
(a) Where circumstances require, ex parte
P-4
communications for scheduling, administrative
purposes or emergencies that do not deal with
substantive matters or issues 9n the merits are
authorized; provided that the judge reasonably
believes that no party will gain a procedural or
tactical advantage as a result of the ex parte
communication.
(b) A judge may obtain the advice of a
disinterested expert on the law applicable to a
proceeding before the judge if the judge gives notice
to the parties of the person consulted and the
substance of the advice, with a record being made,
a d affords the parties reasonable opportunity to
respond.
C. Disciplinary Responsibilities. A judge
should report to the appropriate disciplinary
authority any unprofessional conduct of a judge or
lawyer of which the judge may become aware.
D. Disqualification. A judge should disqualify
himself or herself in a proceeding in which the
judge's impartiality might reasonably be
questioned, .... .
APPENDIX @Q
RULES FOR DISTRICT COURTS OF
OKLAHOMA
Adopted Effective January 1, 1982,
Including Amendments Received
through November 1, 2004
O.S. Title 12, Chapter 2, Appendix 1
RULE 13. SUMMARY JUDGMENT
OR SUMMARY DISPOSITION
OF ISSUES
a. Aparty may move for either summary judgment
or summary disposition of any issue on the merits
on the ground that the evidentiary material filed
with the motion or subsequently filed with leave of
court show that there is no substantial controversy
as to any material fact. The motion shall be
accompanied by a concise written statement of the
material facts as to which the movant contends no
genuine issue exists and a statement of argument
and authority demonstrating that summary
judgment or summary disposition of any issues
should be granted. Reference shal] be made in the
statement to the pages and paragraphs or lines of
the evidentiary materials that are pertinent to the
motion. Unless otherwise ordered by the court, a
copy of the material relied on shall be attached to
the statement.
The motion may be served at any time aften the
APPENDIX Q
filing of the action, except that, if the action has been
set for trial, the motion shall be served at least
twenty (20) days before the trial date unless an
applicable scheduling order establishes an earlier
deadline. The motion shall be served on all parties
and filed with the court clerk.
b. Any party opposing summary judgment or
summary disposition of issues shall file with the
court clerk within fifteen (15) days after service of
the motion a concise written statement of the
material facts as to which a genuine issue exists
and the reasons for denying the motion; provided,
however, that a responsive statement shall not be
due from a party earlier than forty-five (45) days
after service of the first summons by, or upon that
party. Unless otherwise ordered by the court, the
adverse party shall attach to the statement
evidentiary material justifying the opposition to the
motion, but may incorporate by reference material
attached to the papers of another party. In the
statement, the adverse party or parties shall set
forth and number each specific material fact which
is claimed to be in controversy and reference shall be
made to the pages and paragraphs or lines of the
evidentiary materials. All material facts set forth
in the statement of the movant which are supported
by acceptable evidentiary material shall be deemed
admitted for the purpose of summary judgment or
summary disposition unless specifically controverted
by the statement of the adverse party which is
Q-2
supported by acceptable evidentiary material. If the
motion for summary judgment or summary
disposition is granted, the party or parties opposing
the motion cannot on appeal rely on any fact or
material that is not referred to or included in the
statement in order to show that a substantial
controversy exists.
c. ‘The affidavits that are filed by either party shall
be made on personal knowledge, shall show that the
affiant is competent to testify as to the matters
stated therein, and shall set forth matters that
would be admissable at trial. The admissibility of
other evidentiary material filed by either party shall
be governed by the rules of evidence. If there is a
dispute regarding the authenticity of a document or
admissibility of any submitted evidentiary material,
the court may rule on the admissibility of the
challenged material before disposing of the motion
for summary judgment or summary disposition. A
party challenging the admissibility of any
evidentiary material submitted by another party
nay raise the issue expressly by written objection or
;notion to strike such material. Evidentiary material
that does not appear to be convertible to admissible
evidence at trial shall be challenged by objection or
motion to strike, or the objection shall be deemed
waived for the purpose of the decision on the motion
for summary judgment or summary disposition. Ifa
trial of the factual issues is required after
proceédings on a motion for summary judgment or
Q-3
summary disposition, evidentiary rulings in the
context of the summary procedure shall be treated
as rulings in limine.
d. Should it appear from an affidavit of a party
opposing the motion that for reasons stated the
party cannot present evidentiary material sufficient
to support the opposition, the court may deny the
motion for summary judgment or summary
disposition without prejudice or may order a
continuance to permit affidavits to be obtained or
depositions to be taken or discovery to be had or
may make such other order as is just. A motion
filed pursuant to this paragraph shall not be
deemed a consent to the exercise by the court of
jurisdiction over the party, or a waiver of the right
to file a motion to dismiss the action.
e. If it appears to the court that there is no
substantial controversy as to the material facts and
and that one of the parties is entitled to judgment
as a matter of law, the court shall render judgment
for said party.
If the court finds that there is no substantial
controversy as to certain facts or issues, the court
may enter an order specifying the facts or issues
which are not in controversy and direct the action
proceed for a determination of the remaining fact or
issues. An order denying either summary judgment
or summary disposition is interlocutory and is not
reviewable on appeal prior to final judgment.
Q-4
rit
:
subject to accelerated appellate review under Rule
1.36 of the Oklahoma Supreme Court Rules. The
record on appeal will be limited to:
(1) the memorialized entry of judgment; in multi-
party or multi-claim cases the judgment or
dismissal order must either (1) dispose of all claims
and all parties or (2) entirely dispose of at least one
claim or one party and contain the express
determination that there is no just reason for delay
with the express direction by the trial judge that
judgment be filed. See 12 O.S. Section 994.
(2) pleadings proper as defined by 12 O.S. Section
2007(A);
(3) applicable instruments on file, including the
motion and response with supporting briefs and
materials filed by the parties as prescribed by
subsections (a) and (b);
(4) any other item on file which, according to some
recitation in ine trial court's written journal entry or
in some other order, was considered in its decision;
(5) any other order dismissing the claim or
determining the issues as to some but not al]
parties or claims;
(6) any transcripts of the hearing on the motion;
(7) any motions, along with supporting and
responsive briefs, for a new trial (re-examination)
of summary judgment or appealable summary
disposition process.
(Withdrawn and replaced effective November 1,
1984; amended June 29, 1993; amended effective
September 16, 2002.
p 3 Q-6
APPENDIX R
OKLAHOMA SUPREME COURT
RULES
Effective January 1, 1997
Including Amendments Received
Through November 1, 2004
O.S. Title 12, Chapter 15, Appendix.
Rule 1.36 ACCELERATED PROCEDURE
FOR SUMMARY JUDGMENTS AND
CERTAIN DISMISSALS
(a) Cases Applied. The Rule 1.36 accelerated
procedure will govern appeals from:
1. summary judgments in cases in which the
motions were filed under District Court Rule 13
after October 1, 1993; and
2. final orders in cases in which motions to
dismiss for failure to state a claim or lack of
jurisdiction (of a person or subject matter) under
District Court Rule 4 were filed after October 1,
1993.
In multi-party or multi-claim cases the summary
judgment or dismissal order must either (1) dispose
of all claims and all parties or (2) entirely dispose of
at least one claim or one party and contain the
express determination that there is no just reason
for delay with the express direction by the trial
APPENDIX R
judge that judgment be filed. See 12 O.S.Supp.
1995 Section 994.
(b) Commencement of Appeal. Appeals in
these cases will be commenced by filing a petition in
error with a certified copy of dismissal order or of
summary judgment and, where applicable, a
certified copy of the order denying new trial, with
payment of costs or an affidavit in forma pauperis.
The petition in error must comply with all Rules to
the extent they are consistent with Rule 1.36. The
record shall be filed at the same time as the petition
in error. Rule 1.36(d).
(c) Record on Appeal. The record on appeal will
stand limited to:
(A) In appeals from summary judgment: .
(1) the memorialized order by which summary
judgment was entered;
(2) pleadings proper as defined by 12 0.S.1991
Section 2007(A), (petition, answer, etc.);
(3) apphecable instruments on file, including the
motion and response with supporting briefs and
attached materials filed by the parties as required
by District Court Rules 13(a) and 13(b);
(4) any other item on file which, according to
some recitation in the trial court's journal entry or
in some other order, was considered in the decisional
process;
(5) any other order dismissing some but not all
parties or claims:
(6) any transcripts of proceedings on the motion(s);
(7) any motions, along with supporting and
responsive briefs, for a new trial (re-examination) of
the summary judgment process;
(8) the appearance docket; and
(9) a cover page and Index of the record prepared
by the party.
(B) In appeals from final orders on motions to
dismiss:
(1) the memorialized order of dismissal;
(2) pleadings proper as defined by 12 O.S. 1991
Section 2007(A), (petition, answer, etc.);
(3) the instruments upon which the dismissal is
rested;
(4) the motion(s) to dismiss and any supporting
brief(s);
(5) any responsive brief by the party asserting the
claim;
(6) any other item on file which, according to some
recitation in the trial court's dismissal order or in
some other order, was considered in its decision;
(7) any other order dismissing some but not all
parties or claims;
(8) any transcripts of proceedings on the motion;
(9) any motions, along with supporting and
responsive briefs, for a new trial (re-examination) of
the dismissal order;
(10) the appearance docket;
(1i) a cover page and Index of the record prepared
by the party.
R-3
(d) Record, Filing, Index, Copies, Transcripts,
Costs, Supplement to Record, and Additional
Copies on Certiorari. The record shall be filed by
appellant as a separate document, not attached to
petition in error. The record shall be titled "Record
on Accelerated Appeal" and shall be preceded by a
separate page containing signature of counsel (or
pro se parties) and a certificate of service, followed
by an "Index to Contents of Record." The index shall
use numerical references which shall correspond to
tabs for each of the documents or transcripts
included in the record. The record shall consist of
copies of instruments authorized by Rule 1.36(c),
selected for inclusion by the appellant. To the front
of the original and each of the copies of the record
there shall be appended the court clerk's certificate
identifying each of the included instruments as a
true and correct copy of the original on file in the
court clerk's office.
An original and four (4) copies of the record and
certificate of the clerk shall be filed. One copy shall
be served on every other party to the appeal unless
waived, and any such waiver must be reflected on
the certificate of service.
An appellant who is an inmate, as defined by the
provisions of 57 O.S. Section 566 (B)(2), lawyerless
and unable to produce the record required by this
subsection, may attach to the petition in error an
affidavit that discloses his (or her) prisoner status
R-4
and sets out a designation of record to be assembled
for the appeal. When such affidavit is filed, the
Supreme Court's clerk shall order from the trial
court's clerk the original record which is to be
compiled in accordance with the inmate's
designation in the text of his (or her) affidavit. If the
appealing inmate's pauper's affidavit is on file in
this court, the record shall be prepared and
transmitted to this court -- without payment of costs
-- within thirty (30) days of the date the inmate's
affidavit (with designation of record) is transmitted
to the trial court by this court's clerk.
It shall be the appellant's duty to order transcripts
from the court reporter and to pay costs to ensure
timely completion of transcripts. If the transcripts
are not filed with the petition in crror because of
delay in transcription, no more than one 30-day
extension of time to complete transcripts will be
granted by the court for good cause shown.
If the appellee desires to include documents or
transcripts not included by the appellant in the
record on appeal, the appellee shall order any such
transcript and file a separate document titled
"Supplement to Record on Accelerated Appeal,"
attaching any instruments or transcripts in the
same form and manner as required for an appellant
under Rule 1.36 herein. Any such supplement to the
record shall be filed concurrently with the Response
to the petition in error. The cost of transcribing
R-5
appellee-ordered portion of the record will be borne
by the appellant unless: (1) The trial judge finds
that the portion supports a counter or cross-appeal.
or (2) The trial judge directs otherwise for good cause
shown. In the latter event the appellee shall pay the
transcription fee.
In the event that any party files a petition for writ
of certiorari to review a Court of Civil Appeals
decision under this accelerated procedure, the
Supreme Court may issue an order requiring the
party who filed such petition for writ of certiorari to
submit to the Supreme Court Clerk additional
copies of the Record on Accelerated Appeal and any
Supplement to the Record on Accelerated Appeal.
(e) Response. Response(s) to the petition in error
shall be filed within 20 days of the petition in error.
If the appellee desires to include documents or
transcripts not included by the appellant the
appellee shall comply with Rule 1.36(d).
(f) Assignment of Appeal. After a response has
been filed or the time for filing has expired, the
appeal may be assigned to a division of the Court of
Civil Appeals, unless initial screening is incomplete
or there are unresolved jurisdictional, procedural or
postural defects. Assignment to the Court of Civil
Appeals shall be in a manner directed by the Chief
Justice, with notice given to the parties.
(g) Appellate Review and Briefs. The appellate
court shall confine its review to the record actually
presented to the trial court. Unless otherwise
R-6
ordered by the appellate court, no briefs will be
allowed on review. If briefs are ordered, the
appellate court will prescribe a briefing schedule.
Motions for leave to submit appellate briefs shall
be deemed denied unless affirmatively granted by
the court. No briefs shall be tendered by
attachment to a motion for leave to brief, and the
clerk shall not accept or file an appellate brief
without prior leave of the court. A motion for appeal
related attorncy's fees must be made by motion —
_ prior to mandate. See Rule 1.14.
(h) Oral Argument. Appeals may be decided
pursuant to this rule with or without argument. If
argument is granted and the appellate court should
orally announce its decision from the bench, it shall
also, as in other cases, hand down a memorandum
opinion or order. .
(i) Certiorari. Certiorari to review any decision
of the Court of Civil Appeals made pursuant to this
rule may be sought in the same manner as in any
other appeal. The time for filing a petition for
certiorari is governed by Rules 1.178, 1.179.
(j) N/A
(k) N/A
(l) N/A
APPENDIX S
OKLAHOMA STATUTES INVOLVED
OKLAHOMA STATUTES ANNOTATED
O.S. Title 21 8 461. Larceny or Destruction
of Records by Clerk or Officer
Any clerk, register or other officer having the
custody of any record, maps or book, or of any paper
or proceeding of any court of justice, filed or
deposited in any public office, who is guilty of
stealing, willfully destroying, mutilating, defacing,
altering or falsifying or unlawfully removing or
secreting such record, map, book, paper or
proceeding, or who permits any other person so to
do, shall be guilty of a felony punishable by
imprisonment in the State Penitentiary not
exceeding five (5) years, and in addition thereto,
such person shall forfeit office.
R.I. 1910 § 2207; Laws 1997, c. 133, $ 201, eff.
July 1, 1999; Laws 1999, 1st Ex. Sess., c. 5, § 112.
eff. July 1, 1999.
O.S. Title 21 8 463. Offering Forged or
False Instruments for Record
Any person who knowingly procures or offers
APPENDIX §
any false or forged instrument to be filed, registered,
or recorded in any public office within this state,
which instrument, if genuine, might be filed or
registered or recorded under any law of this state or
of the United States, shall be guilty of a felony.
R.L. 1910, S 2209; Laws 1997, c. 133 S 203, eff.
July 1, 1999.!
1
Notes of Decisions
1. In General: It is immaterial how instrument was forged
or whether defendant forged it or not. The question is, did
defendant present the forged instrument for record? Fowler
v. State, Okla. Crim. App., 20 Okla. Crim 410, 203 P. 900
(1922).
2. Evidence: In prosecusion under this section, proof of ways,
means, and circumstances of uttering a false or forged
instrument was sufficient, and not at variance with the
allegations. Fowler v. State, Okla. Crim. App., 20 Okla.
Crim. 410, 203 P. 900 (1922).
APPENDIX Y
IN THE DISTRICT COURT OF BLAINE
COUNTY
STATE OF OKLAHOMA
ROBERT OLSON,
Plaintiff,
vs
CONTINENTAL RESOURCES,
INC., an Oklahoma corporation,
HAROLD HAMM, an individual
and President and Chief
Executive Officer of Continental
Resources, Inc., TOM
LUTTRELL, an individual and
Vice President of Continental
Case No.
CJ-2002-151
Resources, Inc.,
And
DAVIS OPERATING COMPANY,
an Oklahoma Corporation,
WILLIAM H. DAVIS, an
individual and President of
Davis Operating Company,
Defendants
* * * *
EXERPTS FROM TRANSCRIPT OF HEARING
ON PLAINTIFF'S MOTION FOR RECUSAL OF
JUDGE RONALD G. FRANKLIN 1/13/05
APPENDIX _ Y-1
HELD ON JANUARY 13TH, 2005
BEFORE THE HONORABLE RAY DEAN
LINDER, PRESIDING JUDGE OF THE
FOURTH JUDICIAL DISTRICT
REPORTED BY
Mark W. Fike, C.S.R.
Official Court Reporter
1600 Main Street, Suite 7
Woodward, Oklahoma 73801
(580) 256 - 3405
APPEARANCES
Mr. Robert Olson
9022 E 60th Street
Tulsa, Oklahoma 74145
(918) 252 1987
Appearing Pro Se
x * * lead
Mr. Glenn A. Devoll
Ms. Julia C. Rieman
- Of the Firm -
Gungoll, Jackson, Collins, Box & Devoll, P.C.
323 West Broadway Avenue
P.O. Box 1549
Enid, Oklahoma 73702 - 1549
(580) 234 0436
Attorneys for Defendant Continental Resources
CONTENTS
Page
Appearances. ; 2
PLAINTIFF'S MOTION FOR RECUSAL:
Argument by Mr. Olson . 4
Response by Mr. Devoll . . 46
Further argument by Mr. Olson. 48
COURT'S RULING ; . 49
Certificate of Court Reporter . 88
(3)
a * * *
PROCEEDINGS
ae a a
Line [ | Page ( )
[4] THE COURT: There are two matters that |
think [5] will come on for consideration today :
CJ-2002-151 and [6] CJ-2004-121. These are
inter-related matters, it appears to [7] me. And
there is for consideration at this time the motion
[8] to disqualify the previously assigned and
presiding judge in [9] this matter, to wit: Judge
Franklin. That's the issue with [10] which we're
going to deal.
[11] The plaintiff present and ready to proceed
on that [12] basis.
[13] MR.OLSON: Yes, sir.
[14] THE COURT: Defendants present by
Y-4
counsel and [15] ready as well ?
[16] MR. DEVOLL: Yes, sir.
{17] THE COURT: Mr. Olson, we've not met.
It's my [18] understanding that you are Robert
Olson. You are not an [19] attorney at law. You
have chosen in the past, and choose [20] again
today, to proceed pro se; is that correct ?
[21] MR.OLSON: That is correct, sir.
(22) THE COURT: You understand that this is
a serious [23] matter. We're in the district court.
we are making a formal [24] record. We're going
to deal with not only district court [25] matters,
we're going to deal with matters from the Court of
(4)
[1] Civil Appeals, we're going to deal with matters
from the [2] Supreme Court of the State of
Oklahoma. Is that correct ?
(3] MR. OLSON: Yes, sir.
[4] THE COURT: I see as well by some of your
filings [5] that you have indicated you may seek
relief in the Supreme [6] Court of the United States.
You need to be aware of the fact [7] this is a court
of law. The court expects everyone who [8]
appears here to know the rules, to abide by the
rules and to [9] proceed professionally.
Understood ?
[10] MR.OLSON: Yes, sir.
[3] THE COURT: Ifthe file shows that that's
what [4] the order says, it would be correct,
would it not ?
[5] MROLSON: Yes.
[6] THE COURT: Have you looked at the file ?
[7] MR.OLSON: Uh --
{8} THE COURT: The court file contained
here in the [9] Blaine County courthouse.
[10] MR. OLSON: No, sir.
[11] THE COURT: You've had access to it if
you wanted [12] it, have you not, or have you --
[13] MR.OLSON: Yes.
[14] THE COURT: -- been denied access to 1% ?
{15} MR. QLSON: I haven't been denied access
to it.
[16] THE COURT: All nght, sir. It's available to
[17] you at any time ?
[18] MR.OLSON: Yes.
[19] THE COURT: And if that file contains that
order [20] signed by the chief justice, Justice Watt,
that certiorari [21] was denied, that, too, would be
correct, right ?
[22] MR.OLSON: Yes, sir.
[23] THE COURT: Allright, sir. I don't need
any [24] real background on the facts of the case.
I need for you to [25] explain to me why Judge
Franklin should be recused when the
[23] MR.OLSON: Then you said that I can
make [24] whatever record I wish to make ?
[25] THE COURT: I'm going to allow that.
And if I
(9)
[1] think that it strays so far from the norm or so
far from the [2] accepted practice, there may or
may not be an objection, or I [3] may sua sponte
say, That's it. But yes, sir, I'm going to [4] give
you as much rein as you think you need reason-
ably to [5] proceed here today. All right, sir ?
'[6] MR.OLSON: Okay, sir. Then I would
like to [7] present a summary of the case.
[8] THE COURT: Have you not done that in
one of [9] these filings I've just been reading for
the last hour or so ? [10] And also previously you
had submitted to me by mail at least [11] three or
four hundred pages of information. So I've read
[12] what you've done in the past. Is this a new
production by [13] you ?
[14] MR.OLSON: No, sir. It's one that's been
[15] included.
{16] THE COURT: All right, sir. I'm going to
tell [17] you that I'm cognizant of everything that's
in this file.
[18] MR.OLSON: Okay. Then you are
cognizant of the [19] case law history of --
what Garfield County has to do with this [22]
particular case. We're in the District Court of
Blaine [23] County, aren't we ?
[24] MR.OLSON: That's the reason I think the
[25] district judge in Blaine County should have
heard the case
(23)
(1] and not the district judge from Garfield County.
(2} THE COURT: Well, first of all, there isn't,
[3] quote, a district judge of Blaine County unless
you consider [4] Judge Franklin, because he is the
chief judge of Blaine [5] County by my assignment.
I happen to be the presiding [6] district judge in 18
counties, and I have assigned him as the [7] chief
judge. There is not a physically resident district
[8] judge in Blaine County. There is an associate
district [9] judge.
[i0] MR.OLSON: Okay.
[11] THE COURT: But the fact that Judge
Franklin [12] resides, you say, in Garfield County,
how does that have [13] significance in this case
in Blaine County ?
[14] MR.OLSON: Because he came from
Garfield County [15] where the defendant,
Continental Resources, is located, and [16] came
here to try the case, and I asked him to recuse,
and he [17] said, no, he's keeping it.
[19] MR. OLSON: Six
{20] THE COURT: And how many case files,
case [21] summaries, would you suppose you've
looked at in the time [22] that you have been doing
this pro se litigating ?
[23] MR. OLSON: Case summaries --
[24] THE COURT: No. Case files, files that
would [25] contain such instruments as what
you've just referred to that
(29)
[1] -- the claim for attorney's fees with the
accompanying data [2] given under oath by the
submitting attorney. How many of [3] those have
you seen ?
[4 MR. OLSON: Probably four.
[5] THE COURT: Mm-hmm. Would it
surprise you that [6] I've been seeing things like
that for over 35 years ?
[7} MR.OLSON: No, sir.
[8] THE COURT: That I have seen thousands
-- [9] thousands -- of similar summaries, and
would it surprise you [10] that you're the first
person that I'm aware of that has ever [11] raised
that as an improper communication by and
between the |12] attorneys and the judge ? It's
done as -- it's commonplace. [13] It’ done in
almost every case in which there is a contested
[14] issue as to the amount of attorney's fees that
are due and [15] owing. Would that surprise you
at all ?
[16] MR. OLSON: We're not talking about the
amount of [17] attorney's fees. We're talking
about the amount of [18] communication, your
Honor.
[19} THE COURT: Yes, sir. And as I see your
[20] pleadings, you object more than anything else
to the fact [21] that a summary or an index, an
index with case citations, was [22] furnished and
that a proposed order was furnished. Ar: “'t [23]
those two of your main objections ? Tha’ s the
communication [24] that really has gotten under
your saddle ?
[25] MR.OLSON: Yes, your Honor.
(30)
[1} THE COURT: Were you not requested to
provide a [2] proposed finding of fact and
conclusions of law yourself at [3] the end of the
summary judgment ?
[4] MR. OLSON: Yes. And we each provided
that and [5] each provided it to the other party.
[6] THE COURT: But the fact that they did so
to the [7] judge is a violation of some sort of
professional rules ? Is [8] that what you are
telling me ?
[9} MR.OLSON: Your Honor.
[10] THE COURT: Why, if you provided such
a proposed [11] order, are you not in violation of
the same restriction ?
{12] MR.OLSON: You're -- you're mixing
concepts, [13] your Honor.
[14] THE COURT: Oh. Oh. Soa proposed
order from [15] the plaintiff is different than a
proposed --
[16] MR.OLSON: No.
[17] THE COURT" -- order --
[18] MR. OLSON: No.
[19] THE COURT: -- from the defendants ?
[20] MR.OLSON: No, your Honor. We were
each ordered [21] to provide our potential order
and find- -- or finding of {22] facts.
[23] THE COURT: Right.
(24) MR.OLSON: We each did that, and each
provided [25] it to the other party. Then they
provided an additional
(31)
[1] notebook to the judge that was highlighted
with their cases.
(2} THE COURT: And you were denied the
opportunity [3] to do that ?
[4] MR.OLSON: Yes, sir.
[5] THE COURT: You were -- he told you,
Y-11
don't bring [6] me a notebook ?
(7} MR.OLSON: No, he didn't say that.
[8] THE COURT: Don't bring me a highlighted
[9] instrument ? You know, you've sent me three
or four hundred [10] pages of highlighted materials.
[11] MR.OLSON: And I sent that to everybody.
I [12] didn't send it just to you.
[13] THE COURT: So how is it so egregious
that they [14] provided the citations of cases
actually presented in open [15] court on the record
and they provided an index of those same [16]
cases presented in open court on the record ?
[17] MR. OLSON: Highlighted with the words
they used [18] in their briefs.
{19} THE COURT: Did they "X" out or did they
in any [20] way exclude materials that would have
been beneficial to you ? [21] Do you know ? Did
they do that ?
[22] MR. OLSON: I don't know if they did or
not, your [23] Honor. There was only one copy
of that made, and it was [24] given to Judge
Franklin and he threw it away.
[25] THE COURT: So what import did it have ?
(32)
[1] MR.OLSON: He threw it away after the
case, your [2] Honor, not before.
[3] THE COURT: Have you read Ms. Rieman's
Y-12
affidavit [4] about how she prepared that and
what she did with it ?
(5) MR.OLSON: Yes, I have, your Honor.
And it -- [6] and it bothered me. Why would an
attorney spend two and a [7] half hours making
that notebook if they didn't expect to get [8] a
return on that time investment ?
{9} THE COURT: Do you suppose it has
anything to do [10] with her being a conscientious
representative/advocate for [11] her client ? Do
you suppose it has anything to do with that; [12]
that she thought that was part of the job she was
supposed to [13] do to represent her client ?
[14] MR. OLSON: If it was the job she was
supposed to [15] do, your Honor, she should have
provided that to everybody, [16] not just the one
copy to the judge.
{17} ‘THE COURT: Was that kept secret from
you, the [18] fact that he had that notebook ?
Did he --
[19] MR. OLSON: It was not revealed to me.
It was [20] not revealed to me, and it was not
revealed that I had an [21] opportunity to also
send him a notebook with my case files [22]
highlighted to support my arguments.
[23} THE COURT: And in the six cases in
which you've [24] been directly involved, have
you ever seen such an instrument [25] before any
attorney, an aid to the court such as that ?
(33)
[1] Have you ever seen one of those before ?
(2} MR.OLSON: No.
[3] THE COURT: If I told you I've seen a
thousand of [4] them, do you think I would be
exaggerating ?
[5] MR. OLSON: I have no idea.
(6) THE COURT: Mm-hmm.
[7] MR.OLSON: But I think you should
question those [8] things when they are provided.
Those are --
[9] THE COURT: Maybe if you took a course
in trial [10] practice you'd find out about things
like that, Mr. Olson, [11] and know that it is
commonplace and appreciated usually by [12]
judges. Not always. Sometimes they're -- they
may be [13] extraneous.
[14] MR. OLSON: Does that persuade the
judge or make [15] the judge somewhat more --
[16] THE COURT: Absolutely not. It just
makes it a [17] little easier to collect your thoughts
when you get ready to [18] draft your order.
[19] MR. OLSON: Then why does the judge
not ask [20] people to do that ?
[21] THE COURT: Sometimes judges do ask
Sometimes [22] it's done just as common practice
within certain districts; [23] It's just an understood
thing that it will happen. No [24] preclusion.
Maybe a person needs to do a little [25]
investigation about the history of various judicial
districts
(34)
[1] before he or she attempts to practice in those
various [2] districts.
[3] Can we get on with the issue of
disqualification of [4] Judge Franklin ?
[5] MR. OLSON: Well, your Honor, there is
no doubt [6] that they have talked to the judge.
there is no doubt --
[7} THE COURT: Who is "they" ?
[8] MR.OLSON: The opposing attorneys have
talked to [9] the judge.
[10] THE COURT: And who are those
attorneys, for the [11] record. The record doesn't
have eyes; it can't see as you [12] wave your hand.
[13] MR. OLSON: Julia Rieman and Glenn
Devoll.
[14] THRCOURT: Okay. And they talked with
the judge [15] outside your presence ?
[16] MR.OLSON: Yes, sir.
[17] THE COURT: And they talked about the
merits of [18] the case ?
[17] THE COURT: -- told you how much time
they'd [18] spent on each of these issues; is that
right ?
[19] MR.OLSON: That's correct, sir.
[20] THE COURT: And then you made your
own [21] interpretation. And if there was -- you
said 1.75. If there [22] was 1.75 hours, you don't
know how that time was divided, do you ?
[24] MR.OLSON: No, sir.
(25) THE COURT: Okay. All right, sir. Go
ahead.
(37)
(1] MR. OLSON: Well, this notebook -- spent
two and [2] a half hours preparing this notebook
-- was provided to Judge [3] Franklin on July the
11th. The hearing was on July 17th. [14] Now,
when we came to the hearing, Mr. Devoll -- I met
him [5] out front before. He gave me a nice smile
and asked me if I [6] spent a lot of time preparing
for this -- for the hearing. [7] When we got in
there, there was no oral argument on the [8]
hearing, and Mr. Devoll just put a pile of stuff on
the desk [9] and didn't prepare for any argument
whatsoever. That smile [10] toid me he knew
what the verdict was going to be already.
[11] THE COURT: Now, you're a geologist, not
a psychologist or a psychiatrist, are you Mr.
22) I think that the affidavit of Ms. Rieman --
and that's |23] why she's here, should the Court
have any questions -- speaks [24] for itself in
relation to the notebook. We do that as a [25]
matter of course -- the judge knows that; the
Court knows
(47)
[1] that -- as an aid to the court and a courtesy to
the court.
[2] We have been fighting these motions in
these two cases [3] for some time. Mr. Olson has
lost the case, seems not to be [4] able to accept
that result, and has struck out, in my view, [5]
unjustifiably against an officer of the court, Judge
[6] Franklin, in a very false and malicious way.
And for that [7] aspect of his actions, I regret that,
but I understand his [8] animosity towards us as
opposing counsel.
{9} I'll hold any other comments that I may
have but would [10] like to make, and ask that the
Court leave Judge Franklin as [11] the judge on
this case, and that his orders continue in [12]
effect that he's already made in this matter which
partially
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