Sholer v. State ex rel. Department of Public Safety

2006 OK CIV APP 145, 149 P.3d 1040, 2006 Okla. Civ. App. LEXIS 137
CourtCourt of Civil Appeals of Oklahoma
DecidedFebruary 28, 2006
DocketNo. 100311
StatusPublished
Cited by4 cases

This text of 2006 OK CIV APP 145 (Sholer v. State ex rel. Department of Public Safety) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sholer v. State ex rel. Department of Public Safety, 2006 OK CIV APP 145, 149 P.3d 1040, 2006 Okla. Civ. App. LEXIS 137 (Okla. Ct. App. 2006).

Opinion

DOUG GABBARD II, Presiding Judge.

1 Appellant, The Richardson Firm, P.C. (Richardson), appeals from a trial court judgment finding unenforceable its fee-sharing contract with Appellees, Carpenter & La-quer, a partnership, Bob G. Carpenter, Richard D. Laquer, and Bill Stout (collectively, Carpenter). Carpenter counter-appeals from the trial court's judgment denying its motion for sanctions against Richardson. We affirm.

HISTORICAL AND PROCEDURAL BACKGROUND1

12 This is an ancillary proceeding to a long-pending class action against the Oklahoma Department of Public Safety (DPS). In July 19983, Carpenter initiated class action litigation on behalf of Plaintiffs Michael Sholer, Wanda Johnson, and others seeking recovery of driver's license reinstatement fees charged by DPS in excess of its authority. On appeal, in Sholer v. State ex rel. Department of Public Safety, 1995 OK 150, 945 P.2d 469 (Sholer I ), the Oklahoma Supreme Court held that DPS had improperly charged multiple reinstatement fees for drivers who received more than one suspension and that this decision applied retrospectively, subject to a three-year statute of limitations. The Supreme Court then remanded the case to the trial court to determine the issue of class certification. On remand, the trial court entered an order of certification and the case was again appealed.2 In March 1999, the Oklahoma Court of Civil Appeals settled the issue of class certification in Sholer v. State ex rel. Department of Public Safety, 1999 OK CIV APP 100, 990 P.2d 294 (Sholer II).3 [1043]*1043DPS then sought a writ of certiorari with the Oklahoma Supreme Court.

T3 Shortly after remand in Sholer I, Plaintiff Johnson opted out of the class and filed an individual suit. That case resulted in a judgment for Johnson which was not appealed by DPS. However, when DPS refused to pay, claiming that the judgment for a refund was extinguished by merger, and that, in any event, it was not authorized to pay the judgment without an appropriation, Johnson filed a petition for writ of mandamus. The trial court denied the writ and Johnson appealed.

T 4 In June 1999, while both Sholer II and Johnson were pending in the Oklahoma appellate court system, Carpenter, the law firm representing Plaintiffs in both cases, grew impatient with the six-year-old litigation and began to consider alternative methods of concluding it. Al Kamas, an Oklahoma attorney and Bob Carpenter's uncle, testified Bob Carpenter and Richard Laquer believed that DPS was continuing an unreasonable, obstructionist approach which impeded settlement discussions, prolonged litigation, and cost taxpayer money. Bob Carpenter also had a serious illness causing him to desire a quick resolution in the case. According to Laquer, Kamas advised the parties to obtain political help in settling the lawsuit, and that "there was only one firm in Oklahoma that had entre to the governor to get this case settled, and that was Gary Richardson's firm in Tulsa" Laquer testified that the attorneys decided to contact Richardson to see if it had "sit-down power with the people who could make a decision to stop the litigation."

T5 Representatives of the two firms met. Shortly after the meeting, on June 22, 1999, Carpenter sent Richardson a signed memorandum agreement. The agreement recited that Richardson would participate in the litigation "by making every effort to get these cases concluded by negotiated settlement on a basis satisfactory to your firm, our firm, the clients and to the court," and that if the litigation was resolved by court-approved settlement, Richardson would receive 20 percent of the net attorney fees as well as any expenses advanced. Carpenter would remain "primarily responsible for handling all legal matters in bringing this litigation to a successful conclusion in the absence of settlement," and Richardson would not enter an appearance in the litigation until an entry of appearance was necessary for the matter to proceed to settlement. The letter also provided:

It is understood that your firm will take the lead and will be responsible for implementing any and all strategy in bringing about a negotiated settlement of these matters. All firms will participate in whatever activities your firm requests in connection with bringing this matter to a negotiated settlement. It is expressly understood that in the event this matter is not concluded by negotiated settlement within one year from the date of this letter, it will become necessary for our firms to evaluate the continued efforts so as to determine whether this agreement should be terminated on that date or whether it should be extended so as to permit your firm to continue its efforts to bring this matter to a negotiated settlement. It is further understood that in the event your activities demonstrate meaningful and continuing negotiations on the anniversary date, this contract will remain in force until such time as those activities are not indicating any promise of success.

T6 Richardson returned the signed agreement on August 6, 1999, with two handwritten, initialed changes: (1) that Richardson would (rather than would not) enter an appearance in the litigation; and (2) that Richardson would be paid upon a court-approved settlement or "any other satisfactory resolution" which, Richardson explained in an accompanying cover letter, applied if it should "negotiate a bill that pays this obligation, or arrange acceptable payment of a judgment." Although Carpenter did not initial these changes, Laquer testified that the June 22 letter with the August 6 interlineations represented the parties' agreement.

T7 Both firms clearly understood that the primary purpose of the agreement was to obtain a negotiated settlement using Richardson's political influence with the governor. Keith Ward testified that his firm was specifically hired to get "the executive branch ... to sit down at the table." Gary Richardson testified the firm was to "inform some of the leaders of the state as to what some of their [1044]*1044underlings maybe were doing that was creating additional expense for the taxpayers" and to "make contact with the Governor's Office and any other contact that I might be able to make to maybe influence a change in attitude. ..."

T8 Shortly after the August 6 agreement, Gary Richardson and Keith Ward had dinner with their former law partner, Governor Frank Keating, primarily, according to their testimony, to discuss the DPS litigation. Keating advised them to contact his general counsel, Duchess Bartmess, outlining their concerns by letter. However, during the next few weeks, Richardson took no further documented action.

19 On October 5, 1999, the Oklahoma Supreme Court denied DPS's petition for cer-tiorari in Sholer II, leaving intact the Court of Civil Appeal's decision granting certification to both classes and costs to the Plaintiffs. On October 25, surprised by the Supreme Court's quick decision, Carpenter wrote Richardson, noting that the major issues in the litigation had now been resolved, and stating that:

Our agreement dated June 22 and August 6, 1999, contained a division of labor, with your firm trying to negotiate a settlement, while our firm continued the litigation. Given that the litigation has succeeded, if you intend to further participate, we need another meeting to determine our roles. Please contact us before the end of next week to arrange a meeting.

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Related

Rademacher v. Becker
2015 COA 133 (Colorado Court of Appeals, 2015)
Martinez v. Martinez
2010 OK CIV APP 141 (Court of Civil Appeals of Oklahoma, 2010)
Sholer v. STATE DEPT. OF PUBLIC SAFETY
2006 OK CIV APP 145 (Court of Civil Appeals of Oklahoma, 2006)

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Bluebook (online)
2006 OK CIV APP 145, 149 P.3d 1040, 2006 Okla. Civ. App. LEXIS 137, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sholer-v-state-ex-rel-department-of-public-safety-oklacivapp-2006.