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Volume 83 u No. 7 u March 3, 2012 490 The Oklahoma Bar Journal Vol. 83 — No. 7 — 3/3/2012 LAWYERS HELPING LAWYERS ASSISTANCE PROGRAM You are not alone. Men Helping Men Oklahoma City • April 5, 2012 Time - 5:30-7 p.m. Location The Oil Center – West Building 2601 NW Expressway, Suite 108W Oklahoma City, OK 73112 Tulsa • March 22, 2011 Time - 5:30-7 p.m. Location The University of Tulsa College of Law 3120 East 4th Place, JRH 205 Tulsa, OK 74104 Women Helping Women Oklahoma City • March 8, 2012 Time - 5:30-7 p.m. Location The Oil Center – West Building 2601 NW Expressway, Suite 108W Oklahoma City, OK 73112 Tulsa • April 5, 2012 Time - 5:30-7 p.m. Location The University of Tulsa College of Law 3120 East 4th Place, JRH 205 Tulsa, OK 74104 Food and drink will be provided! Meetings are free and open to OBA members. Reservations are preferred (we want to have enough space and food for all.) For further information and to reserve your spot, please e-mail kimreber@cabainc.com. Vol. 83 — No. 7 — 3/3/2012 The Oklahoma Bar Journal 491 THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar Association. All rights reserved. Copyright© 20 Oklahoma Bar Association. The design of the scales and the “Oklahoma Bar Association” encircling the scales are trademarks of the Oklahoma Bar Association. Legal articles carried in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors. The Oklahoma Bar Journal (ISSN 0030-1655) is published thre times a month in january, February, March, April, May, August, Septem-ber, October , November and December and in June and July. by the Oklahoma Bar Association , 1901 N. Lincoln Boulevard, Oklahoma City, Oklahoma 73105. Periodicals posta ge paid at Okla-homa City, OK. POSTMASTER: Send addres changes to THE OKLAHOMA BAR ASSOCIATION, P.O. Box 53036, Oklahoma City, OK 73152-3036. Subscrip-tions are $55 per year except for law students registered with the Oklahoma Bar Association , who may subscribe for $25. Active mem-ber subscriptions are included as a portion of anual dues. Any opinion expresed herein is that of the author and not necesar-ily that of the Oklahoma Bar Association , or the Oklahoma Bar Journal Board of Editors . OF FICERS & BOARD OF GOVERNORS Cathy M. Christensen, President, Oklahoma City James T. Stuart, President-Elect, Shawnee Peggy Stockwell, Vice President, Norman Deborah A. Reheard, Immediate Past President, Eufaula Renée DeMoss, Tulsa Gerald C. Dennis, Antlers Glenn A. Devoll, Enid Kimberly Hays, Tulsa O. Chris Meyers II, Lawton D. Scott Pappas, Stillwater Nancy S. Parrott, Oklahoma City David A. Poarch Jr., Norman Ryland L. Rivas, Chickasha Susan S. Shields, Oklahoma City Bret A. Smith, Muskogee Linda S. Thomas, Bartlesville Jennifer Kirkpatrick, Oklahoma City, Chairperson, OBA/Young Lawyers Division BAR Center Staff John Morris Williams, Executive Director; Gina L. Hendryx, General Counsel; Carol A. Manning, Director of Communications; Craig D. 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Go online to my.okbar.org/Login and sign in. Click on “Roster Info” and switch to electronic to receive court issues. Vol. 83 — No. 7 — 3/3/2012 The Oklahoma Bar Journal 493 contents March 3, 2012 • Vol. 83 • No. 7 Oklahoma Bar Association page table of 491 Events Calendar 494 Index to Court Opinions 495 Supreme Court Opinions 506 Court of Civil Appeals Opinions 531 Disposition of Cases Other Than by Publication 494 The Oklahoma Bar Journal Vol. 83 — No. 7 — 3/3/2012 Index To Opinions Of Supreme Court 2012 OK 16 RE: Suspension of Certificates of Certified Shorthand Reporters. No. SCAD- 2012-5.................................................................................................................................................... 4 9 5 2012 OK 14 DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, Plaintiff/ Appellee, v. THERON MATTHEWS, Defendant/Appellant, and CHRISTINA A. MATTHEWS; JOHN DOE; JANE DOE; AVB f/k/a ARKANSAS VALLEY STATE BANK; and CHASE BANK USA, N.A., Additional Defendants. No. 108,427........................... 4 9 5 2012 OK 15 DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, Plaintiff/ Appellee, v. CORY L. RICHARDSON, Defendant/Appellant, and ERNESTINE RICHARDSON A/K/A ERNESTINE V. RICHARDSON, JOHN DOE, JANE DOE, ARGENT MORTGAGE COMPANY, LLC, CITIFINANCIAL SERVICES, INC., Defen-dants. No. 109,999............................................................................................................................... 5 0 0 Index To Orders of Court of Civil Appeals 2012 OK CIV AP 11 DON HONEYWELL, Plaintiff, vs. GADA BUILDERS, INC., LARRY BRANNON PLUMBING & MECHANICAL, INC., and HUGHES ELECTRIC, INC., Defendants, and LARRY BRANNON PLUMBING & MECHANICAL, INC., and GADA BUILDERS, INC., Third-Party Plaintiffs/Appellees, vs. GASTITE, a division of TITE-FLEX, a foreign corporation, Third-Party Defendant/Appellant. Case No. 109,277................ 5 0 6 2012 OK CIV AP 12 CLIFTON GENTRY, Petitioner, vs. BERRY MACHINE & TOOL CO., INC. and THE WORKERS’ COMPENSATION COURT, Respondents. Case No. 109,513................................................................................................................................................... 5 1 3 2012 OK CIV AP 10 IN RE THE MARRIAGE OF: JOAN PLUMLEE, Petitioner/Appel-lee, vs. PHILLIP PLUMLEE, Respondent/Appellant. Case No. 107,922.................................... 5 1 6 2012 OK CIV AP 14 NOEHMI RODRIGUEZ and JESUS MUNIZ, Plaintiffs/Appellees, vs. MARIA GUTIERREZ-PEREZ, Defendant, and EQUITY INSURANCE COMPANY, Garnishee/Appellant. Case No. 108,952.......................................................................................... 5 2 1 2012 OK CIV AP 13 NORTHWEST ROOFING SUPLY, INC., an Oklahoma corporation, Plaintiff/Appellee, vs. ELEGANCE IN WOOD, LLC; ELTON RHOADES, JR. and MALISSA M. RHOADES, Husband and Wife; and KEVIN JONES, Defendants/ Appellants. Case No. 107,676............................................................................................................. 5 2 3 Vol. 83 — No. 7 — 3/3/2012 The Oklahoma Bar Journal 495 2012 OK 16 RE: Suspension of Certificates of Certified Shorthand Reporters. No. SCAD-2012-5. February 27, 2012 ORDER Pursuant to Rules 20(b) and 23(d), the State Board of Examiners of Certified Shorthand Reporters submitted the names of certified shorthand reporters who have failed to pay the 2012 annual certificate renewal fee and/or to report the 2011 continuing education, as listed in the attached Exhibit, and recommended the suspension of each reporter’s certificate by order of this Court. THEREFORE, IT IS HEREBY ORDERED that the certificate of each of the certified shorthand reporters listed on the attached Exhibit is and shall remain suspended for failure to pay the 2012 annual certificate renewal fee and/or to comply with the continuing education require-ments for calendar year 2011 until further order of this Court. DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE this 27th day of February, 2012. /s/ Steven W. Taylor CHIEF JUSTICE ALL JUSTICES CONCUR. EXHIBIT TO ORDER No. SCAD-2012-5 Rules 2 (b) and 23(d) of the State Board of Examiners of Certified Shorthand Reporters, 20 O.S.2011, ch. 20, app. 1, require certified shorthand reporters, on or before February 15th of each year, to pay the annual certificate renewal fee authorized by 20 O.S.2011, § 1506 and to report the continuing education required by 20 O.S.2011, § 1503.1 and operate to suspend the certificates of reporters, effective February 16th of each year, who do not timely pay and/ or report. The following persons have failed to pay the annual certificate renewal fee for calendar year 2012. 1. Charyse Carmine Crawford, CSR #973 2. Lisa Ann Cromley, CSR #1840 3. Marjorie L. Miller, CSR #299 4. Joseph L. Welch, CSR #398 5. Cynthia Williams, CSR #1682 The following persons have failed to com-plete and report continuing education for cal-endar year 2011: 1. Charyse Carmine Crawford, CSR #973 2. Lisa Ann Cromley, CSR #1840 3. Joseph L. Welch, CSR #398 4. Cynthia Williams, CSR #1682 2012 OK 14 DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, Plaintiff/ Appellee, v. THERON MATTHEWS, Defendant/Appellant, and CHRISTINA A. MATTHEWS; JOHN DOE; JANE DOE; AVB f/k/a ARKANSAS VALLEY STATE BANK; and CHASE BANK USA, N.A., Additional Defendants. No. 108,427. February 28, 2012 ON APPEAL FROM THE DISTRICT COURT OF CREEK COUNTY HONORABLE LAWRENCE W. PARISH DISTRICT JUDGE ¶0 Appeal of a partial summary judgment granted in Deutsche Bank National Trust Com-pany’s favor against the Matthewses on August 20, 2009, memorialized by minute order. A Par-tial Journal Entry of Judgment was filed on May 26, 2010. The Matthews appeal this sum-mary judgment arguing Deutsche Bank Nation-al Trust Company as Trustee for J.P. Morgan Mortgage Acquisition Trust 2007-CH3 failed to demonstrate standing. REVERSED AND REMANDED WITH INSTRUCTIONS Supreme Court Opinions Manner and Form of Opinions in the Appellate Courts; See Rule 1.200, Rules — Okla. Sup. Ct. R., 12 O.S. Supp. 1996 (1997 T. 12 Special Supplement) 496 The Oklahoma Bar Journal Vol. 83 — No. 7 — 3/3/2012 Theron T. Matthews, Pro Se, Mounds, Oklaho-ma, for Defendant/Appellant. Sally E. Garrison, BAER, TIMBERLAKE, COULSON & CATES, P.C., Oklahoma City, Oklahoma, for Plaintiff/Appellee. COMBS, J. FACTUAL AND PROCEDURAL HISTORY ¶1 In a petition filed on January 14, 2009, Deutsche Bank National Trust company, as Trustee for J.P. Morgan Mortgage Acquisition Trust 2007-CH3 (hereinafter Deutsche Bank) filed a foreclosure action against Theron Mat-thews (Matthews). Deutsche Bank claimed at that time to hold the note and mortgage. Deutsche Bank claims the note and mortgage were indorsed in blank. However from the face of the note attached to the Petition, no such indorsement is found. Chase Bank USA, N.A., was the original lender. Deutsche Bank, filed on June 18, 2009, a document entitled “Assign-ment of Real Estate Mortgage,” dated June 9, 2009, with the County Clerk of Creek County. This was some six months after the filing of the foreclosure proceeding. A partial summary judgment granted in Deutsche Bank’s favor against the Matthews on August 20, 2009, was memorialized by minute order. A Partial Jour-nal Entry of Judgment was filed on May 26, 2010. The Matthewses appeal this summary judgment arguing Deutsche Bank failed to demonstrate standing. STANDARD OF REVIEW ¶2 An appeal on summary judgment comes to this court as a de novo review. Carmichael v. Beller, 1996 OK 48, ¶2, 914 P.2d 1051, 1053. All inferences and conclusions are to be drawn from the underlying facts contained in the record and are to be considered in the light most favorable to the party opposing the summary judgment. Rose v. Sapulpa Rural Water Co., 1981 OK 85, 621 P.2d 752. Summary judgment is improper if, under the evidentiary materials, reasonable indi-viduals could reach different factual conclu-sions. Gaines v. Comanche County Medical Hospi-tal, 2006 OK 39, ¶4, 143 P.3d 203, 205. ANALYSIS ¶3 Appellant argues Appellee does not have standing to bring this foreclosure action. The note attached to Deutsche Bank’s motion for summary judgment, filed June 25, 2009, con-tained two allonges. These were not included with the note that was attached to its petition filed on January 14, 2009. Both allonges are dated January 9, 2007. The first allonge is a special indorsement made by the lender, Chase Bank USA, N.A., and is payable to Chase Home Finance, LLC. It is signed by A. Young, assistant secretary. The second allonge is a blank indorsement, made by Chase Home Finance, LLC, and is also signed by A. Young, assistant secretary. Deutsche Bank states in its motion for summary judgment that it brings this action in its capacity as the holder and owner of the note and mortgage at issue. How-ever, in the same paragraph Deutsche Bank states it acquired Chase Bank USA, N.A.’s interest in the note and mortgage subsequent to the filing of this action. Deutsche Bank also attached an affidavit by an officer of Chase Home Finance, LLC, executed May 6, 2009. The officer merely states Deutsche Bank is the cur-rent holder of the note and mortgage. ¶4 The crux of the entire issue presented to this Court is the issue of standing. This Court has previously held: Standing, as a jurisdictional question, may be correctly raised at any level of the judi-cial process or by the Court on its own motion. This Court has consistently held that standing to raise issues in a proceed-ing must be predicated on interest that is “direct, immediate and substantial.” Stand-ing determines whether the person is the proper party to request adjudication of a certain issue and does not decide the issue itself. The key element is whether the party whose standing is challenged has sufficient interest or stake in the outcome. Matter of the Estate of Doan, 1986 OK 15, ¶7, 727 P.2d 574, 576. In Hendrick v. Walters, 1993 OK 162, ¶ 4, 865 P.2d 1232, 1234, this Court also held: Respondent challenges Petitioner’s stand-ing to bring the tendered issue. Standing refers to a person’s legal right to seek relief in a judicial forum. It may be raised as an issue at any stage of the judicial process by any party or by the court sua sponte. (emphasis original) Furthermore, in Fent v. Contingency Review Board, 2007 OK 27, footnote 19, 163 P.3d 512, 519, this Court stated “[s]tanding may be raised at any stage of the judicial process or by the court on its own motion.” Additionally in Fent, this Court stated: Vol. 83 — No. 7 — 3/3/2012 The Oklahoma Bar Journal 497 Standing refers to a person’s legal right to seek relief in a judicial forum. The three threshold criteria of standing are (1) a legally protected interest which must have been injured in fact- i.e., suffered an injury which is actual, concrete and not conjec-tural in nature, (2) a causal nexus between the injury and the complained-of conduct, and (3) a likelihood, as opposed to mere speculation, that the injury is capable of being redressed by a favorable court deci-sion. The doctrine of standing ensures a party has a personal stake in the outcome of a case and the parties are truly adverse. Fent v. Contingency Review Board, 2007 OK 27, ¶7, 163 P.3d 512, 519-520. In essence, a plaintiff who has not suffered an injury attributable to the defendant lacks standing to bring a suit. And, thus, “standing [must] be determined as of the commencement of suit.” Lujan v. Defend-ers of Wildlife, 504 U.S. 555, 570, n.5, 112 S.Ct. 2130, 2142, 119 L.Ed. 351 (1992).1 ¶5 To commence a foreclosure action in Okla-homa, a plaintiff must demonstrate it has a right to enforce the note and, absent a showing of ownership, the plaintiff lacks standing. Gill v. First Nat. Bank & Trust Co. of Oklahoma City, 1945 OK 181, 159 P.2d 717.2 An Assignment of the mortgage, however, is of no consequence because under Oklahoma law, “[p]roof of own-ership of the note carried with it ownership of the mortgage security.” Engle v. Federal Nat. Mortg. Ass’n, 1956 OK 176, ¶7, 300 P.2d 997, 999. Therefore, in Oklahoma it is not possible to bifurcate the security interest from the note. BAC Home Loans Servicing, L.P. v. White, 2011 OK CIV APP 35, ¶ 10, 256 P.3d 1014, 1017. Because the note is a negotiable instrument, it is subject to the requirements of the UCC. Thus, a foreclosing entity has the burden of proving it is a “person entitled to enforce an instrument” by showing it was “(i) the holder of the instrument, (ii) a nonholder in posses-sion of the instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled to enforce the instru-ment pursuant to Section 12A-3-309 or subsec-tion (d) of Section 12A-3-418 of this title.” 12A O.S. 2001, § 3-301. ¶6 The note, in which the Matthews prom-ised to pay a sum certain to the order of Lender, is a negotiable instrument pursuant to 12A O.S. 2001 §3-104(a). It may be indorsed specially to be payable to an identified person or it may be indorsed in blank to be payable to bearer. 12A O.S. 2001, § 3-205(a) and (b)3. ¶7 To show you are the “holder” of the note you must prove you are in possession of the note and the note is either “payable to bearer” (blank indorsement) or to an identified person that is the person in possession (special indorse-ment). 4 Therefore, both possession of the note and an indorsement on the note or attached allonge are required in order for one to be a “holder” of the note. ¶8 To be a “nonholder in possession who has the rights of a holder” you must be in posses-sion of a note that has not been indorsed either by special indorsement or blank indorsement. Basically, no negotiation has occurred because the person now in possession did not become a holder by lack of the note being indorsed as mentioned. Negotiation is the voluntary or involuntary transfer of an instrument by a per-son other than the issuer to a person who thereby becomes its holder. 12A O.S. 2001, § 3- 201. Transfer occurs when the instrument is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument. 12A O.S. 2001, § 3-203. Delivery of the note would still have to occur even though there is no nego-tiation. Delivery is defined as the voluntary transfer of possession. 12A O.S. 2001, § 1- 201(b)(15). The transferee would then be vested with any right of the transferor to enforce the note. 12A O.S. 2001, § 3-203(b). Some jurisdic-tions have held without holder status and therefore the presumption of a right to enforce, the possessor of the note must demonstrate both the fact of the delivery and the purpose of the delivery of the note to the transferee in order to qualify as the person entitled to enforce. In re Veal, 450 B.R. 897, 912 (B.A.P. 9th Cir. 2011). This would include showing the note was transferred for the purpose of giving to the person receiving delivery the right to enforce the instrument. 12A O.S. 2001, § 3-203. ¶9 Here, Deutsche Bank is trying to show it is a “holder” of the note and not that it is a “nonholder in possession who has the rights of a holder.” If Deutsche was trying to establish it was a “nonholder in possession who has the rights of a holder” an Assignment of Real Estate Mortgage, like the one attached to its motion for summary judgment and which also expressly purports to transfer the note, might be evidence of the purpose of a transfer if pos-session of the note was established. However, 498 The Oklahoma Bar Journal Vol. 83 — No. 7 — 3/3/2012 the Assignment of Real Estate Mortgage attached to its motion for summary judgment is executed on June 9, 2009, by a Vice President of Chase Bank USA, N.A. The note attached to its motion for summary judgment, however, shows an allonge from Chase Bank USA, N.A., to Chase Home Finance, LLC. Further, this purported transfer of the note occurred six months after the action was commenced. Deutsche Bank also by its own admission states it acquired its interest in the note and mortgage subsequent to the filing of this action. ¶10 A plaintiff must show it became a “per-son entitled to enforce” the note prior to the filing of the foreclosure proceeding. There is no evidence showing Deutsche Bank was a person entitled to enforce the note prior to the filing of the foreclosure proceeding. In fact, by its own admission it acquired its interest subsequent to the filing of the action. Therefore, we reverse the granting of summary judgment by the trial court with instructions to dismiss the case without prejudice. CONCLUSION ¶11 It is a fundamental precept of the law to expect a foreclosing party to actually be in pos-session of its claimed interest in the note, and have the proper supporting documentation in hand when filing suit, showing the history of the note, so the defendant is duly apprised of the rights of the plaintiff. This may be accom-plished by demonstrating the party is a holder of the instrument or a nonholder in possession of the instrument who has the rights of a hold-er, or a person not in possession of the instru-ment who is entitled to enforce the instrument pursuant to 12A O.S. 2001, § 3-309, or 12A O.S. 2001, § 3-418. Likewise, for the homeowners, absent adjudication on the underlying indebt-edness, the dismissal cannot cancel their obli-gation arising from an authenticated note, or insulate them from foreclosure proceedings based on proven delinquency. See, U.S. Bank National Association v. Kimball, 27 A.3d 1087, 75 UCC Rep.Serv.2d 100, 2011 VT 81 (VT 2011); and Indymac Bank, F.S.B. v. Yano-Horoski, 78 A.D.3d 895, 912 N.Y.S.2d 239 (2010). REVERSED AND REMANDED WITH INSTRUCTIONS ¶12 CONCUR: TAYLOR (This Court’s deci-sion in no way releases or exonerates the debt owed by the defendants on this home.), C.J., KAUGER (joins Taylor, J.), WATT, EDMOND-SON, REIF, COMBS, JJ. ¶13 DISSENT: WINCHESTER (joins Gur-ich, J.), GURICH (by separate writing), JJ. ¶14 RECUSED: COLBERT, V.C.J. 1. The dissenting opinion in this matter relies upon Justice Opala’s concurring opinion in Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, 890 P.2d 906, for the proposition that standing is not a jurisdic-tional question. Justice Opala’s concurring opinion was not the major-ity opinion of this Court and as such “a minority opinion has no bind-ing, precedential value.” 20 Am.Jur. 2d Courts §138. 2. This opinion occurred prior to the enactment of the UCC. It is, however, possible for the owner of the note not to be the person enti-tled to enforce the note if the owner is not in possession of the note. (See the REPORT OF THE PERMANENT EDITORIAL BOARD FOR THE UNIFORM COMMERCIAL CODE, APPLICATION OF THE UNI-FORM COMMERCIAL CODE TO SELECTED ISSUES RELATING TO MORTGAGE NOTES (NOVEMBER 14, 2011)). 3. 12A O.S.2001 §3-205(a) and (b) provide: (a) If an indorsement is made by the holder of an instrument, whether payable to an identified person or payable to bearer, and the indorse-ment identifies a person to whom it makes the instrument payable, it is a “special indorsement”. When specially indorsed, an instrument becomes payable to the identified person and may be negotiated only by the indorsement of that person. The principles stated in Section 12A-3-110 of this title apply to special indorsements. (b) If an indorsement is made by the holder of an instrument and it is not a special indorsement, it is a “blank indorsement”. When indorsed in blank, an instrument becomes payable to bearer and may be negoti-ated by transfer of possession alone until specially indorsed. 4. 12A O.S. 2001, §§ 1-201(b)(21), 3-204 and 3-205. GURICH, J., with whom WINCHESTER, J. joins, dissenting: ¶1 I respectfully dissent. The majority states that “[t]o commence a foreclosure action in Oklahoma, a plaintiff must demonstrate it has a right to enforce the note, and absent a show-ing of ownership, the plaintiff lacks standing,” citing Gill v. First Nat. Bank & Trust Co., 1945 OK 181, 159 P.2d 717.1 See Majority Op. ¶ 5. I agree that in any foreclosure action a party must demonstrate it is the proper party to request adjudication of the issues. However, the issue of whether a party is the proper party to request adjudication of the issues is a real-party- in-interest issue, not an issue of “stand-ing,” as the majority frames it. See Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, 890 P.2d 906 (Opala, J., concurring). Justice Opala framed the issue correctly in Toxic Waste Impact Group: Standing in the federal legal system is imbued with a constitutional/jurisdiction-al dimension, while in the body of state law it fits under the rubric of ordinary procedure. The U.S. Constitution, Article III, has long been held to require that a “case” or “con-troversy” is essential to invoke federal judicial jurisdiction and that a person’s competence to bring an action is a core Vol. 83 — No. 7 — 3/3/2012 The Oklahoma Bar Journal 499 component of standing in a case-or-contro-versy inquiry. It is for this reason that standing is an integral part of the mecha-nism for invoking the federal judiciary’s power. Oklahoma’s fundamental law places no restraint on the judiciary’s power analo-gous to the federal case-or-controversy requirement. Under the earlier Code of Civil Procedure the suit had to be brought by the real party in interest. That require-ment has always been non-jurisdictional. If a state court proceeded to adjudicate a claim pressed by one not in that status, its decision was not fraught with jurisdiction-al infirmity but rather regarded as errone-ous for want of proof to establish an impor-tant element of the claim. An error in this category is waivable at the option of the defendant; and, if not asserted on appeal, the reviewing court may reach the merits of the case despite a plaintiff’s apparent lack of standing at nisi prius. Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, 890 P.2d 906 (Opala, J., concur-ring, ¶¶ 2-3) (emphasis added). ¶2 The majority in this case cites Hendrick v. Walters, 1993 OK 162, ¶ 4, 865 P.2d 1232, 1234 and Fent v. Contingency Review Board, 2007 OK 27, n.19, 163 P.3d 512, 519 for the proposi-tion that “standing may be raised at any stage of the judicial process or by the court on its own motion.” See Majority Op. ¶ 4. Those cases cite Matter of the Estate of Doan, 1986 OK 15, ¶ 7, 7272 P.2d 574, as authority for this proposition. Arguably, however, Doan mis-states the law: Ever since the Code of Civil Procedure was replaced in 1984 by the Pleading Code, our nomenclature for identifying the party entitled to sue, which began to follow that of federal jurisprudence, has used “stand-ing” as if it were a functional equivalent of the earlier procedural terms of art — real party in interest, one with appealable inter-est, one occupying the aggrieved-party or pecuniary-interest status. It was during this transition that one of our opinions inadvertently referred to “standing” in terms of a jurisdictional requirement, thus creating the misimpression that the term has a jurisdictional dimension. Oklahoma’s constitution has no case-or-controversy clause. Standing is hence to be viewed as an adjective-law concept. The inadvertent reference to the contrary should be treated as ineffective to alter standing’s true char-acter in the body of our procedural law. . . . . I concur in today’s opinion and in the dis-position of the cause. If I were writing for the court, I would additionally declare that Doan’s inadvertent reference to federal law is to be viewed as withdrawn. Lujan’s tri-partite standing test, which we adopt today, must be treated as having been received sans its federal jurisdictional baggage. See Toxic Waste Impact Group, 1994 OK 148 (Opala, J., concurring ¶ 4). ¶3 Additionally, both Hendrick and Fent were original actions in this Court. As such, “standing” could have been raised at any point by this Court sua sponte. However, in a pro-ceeding in District Court, because it is a non-jurisdictional issue, failure to assert that the Plaintiff is not the real party in interest may be waived. See Liddell v. Heavner, 2008 OK 6, n.5, 180 P.3d 1191 (Opala, J., majority Op.); see also 12 O.S. 2012 § 2008(D). ¶4 In this case, the facts demonstrate that the Defendant argued below that Plaintiff did not have a stake in the foreclosure and was not the real party in interest. As such, the issue was properly appealed. However, the facts also demonstrate that the Plaintiff was in fact the real party in interest and was the proper party to pursue the foreclosure. 12 O.S. 2012 § 2017. As such, I would affirm the trial court. ¶5 The majority also holds that a foreclosing party must have the “proper supporting docu-mentation in hand when filing suit.” See Majority Op. ¶ 10 (emphasis added). Oklahoma plead-ing procedure does not require a plaintiff to have all evidence necessary to prevail on its claim at the time of the filing. Rather, what is required is a “short and plain statement of the claim showing that the pleader is entitled to relief.” 12 O.S. 2012 § 2008(A) (1). Additionally, 12 O.S.2012 § 2011(B) (3) provides that an attor-ney filing anything with the court certifies that to “the best of the person’s knowledge, infor-mation and belief, formed after an inquiry reasonable under the circumstances . . . the allegations and other factual contentions have evidentiary support or, if specifically so identi-fied, are likely to have evidentiary support after a reasonable opportunity for further investigation or 500 The Oklahoma Bar Journal Vol. 83 — No. 7 — 3/3/2012 discovery.” 12 O.S. 2012 § 2011(B)(3) (emphasis added).2 ¶6 Mortgage foreclosures, like other civil actions, allow the parties to continue to inves-tigate and discover evidence up until the time of judgment. In this case, the Plaintiff contin-ued to investigate its claim up until the time of summary judgment. At the time of summary judgment it offered sufficient proof to the trial court that it had the right to foreclose on the mortgage.3 ¶7 Plaintiff satisfied its burden of proof, the Defendant failed to file any response, and the trial court was correct in sustaining the motion and granting judgment to the Plaintiff. On appeal where no evidence indicates otherwise, there is a presumption that the judgment of the trial court conforms to the proof present at the trial. Gilkes v. Gilkes, 1964 OK 28, 389 P.2d 503. I cannot agree with the majority’s holding that the plaintiff must have the “proper supporting documentation in hand when filing suit” because no authority states such and the Okla-homa pleading code requires otherwise. The procedure imposed by the majority in this case, will result in delay, will not affect the inevitable outcome of foreclosure, and will increase the homeowner’s debt.4 1. In Gill, the plaintiff brought an action to foreclose a mortgage on real property. There was no discussion in the case of whether the plain-tiff had standing to bring the action or whether the plaintiff was the real party in interest. In fact, the case was tried to the Court, and the appeal turned on the sufficiency of evidence presented at trial. The Gill decision stands for the proposition that the assignment of the note carries with it an assignment of the mortgage. It is not relevant to the standing analysis, nor does it stand for the proposition that the plaintiff must prove at the time of filing that it has a right to enforce the note. 2. Likewise, while I agree that the UCC applies in this case because the note is a negotiable instrument, the UCC does not require that a foreclosing entity prove at the time of filing that it is the person entitled to enforce the instrument. 3. Rule 13 of the Rules for District Courts permits a party to file evidentiary material with a motion for summary judgment. The Rule sets out a procedure for challenging affidavits that are attached to the motion. In this case, the Plaintiff included an affidavit of an officer, verifying that Plaintiff was the holder of the mortgage and the Note in question, and no challenge was made to that affidavit. Further, the Plaintiff presented a copy of the endorsed Note as an exhibit to its Motion for Summary Judgment. Defendant/Appellant failed to chal-lenge the authenticity of the original document and pursuant to 12 O.S. § 3003 and 12A O.S. §3-308(a), a copy is admissible. 4. Rather than dismiss the petition, on remand, the trial court may allow the Plaintiff to amend its petition. HSBC Bank USA v. Lyon, 2012 OK 10, ¶ 1, __ P.3d __. 2012 OK 15 DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, Plaintiff/ Appellee, v. CORY L. RICHARDSON, Defendant/Appellant, and ERNESTINE RICHARDSON A/K/A ERNESTINE V. RICHARDSON, JOHN DOE, JANE DOE, ARGENT MORTGAGE COMPANY, LLC, CITIFINANCIAL SERVICES, INC., Defendants. No. 109,999. February 28, 2012 ON APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY HONORABLE DANIEL OWENS, DISTRICT JUDGE ¶0 Appeal of a summary judgment granted to Deutsche Bank National Trust Company, as trustee, against Cory L. Richardson on June 13, 2011. This Court retained the matter on Sep-tember 19, 2011. Richardson appeals the grant-ing of Summary Judgment asserting Deutsche Bank National Trust Company, as trustee, did not have standing to bring the action. REVERSED AND REMANDED WITH INSTRUCTIONS Steve A. Heath, Matthew Hudspeth, BAER, TIMBERLAKE, COULSON & CATES, P.C., Tulsa, Oklahoma, for Plaintiff/Appellee Jon H. Patterson, BRADLEY ARANT BOULT CUMMINGS LLP, Birmingham Alabama, for Plaintiff/Appellee. Steven W. Crow, Daniel Delluomo, DELLUO-MO & CROW, Oklahoma City, Oklahoma, for Defendant/Appellants. COMBS, J. FACTUAL AND PROCEDURAL HISTORY ¶1 In a petition filed on October 15, 2010, Deutsche Bank National Trust Company, as trustee, (hereinafter Deutsche Bank), alleging to be the “present holder” of the note and mortgage, initiated a foreclosure action against Cory L. Richardson (hereinafter Richardson). A review of the note, filed as an exhibit to the Motion for Summary Judgment, filed May 26, 2011, reveals an undated blank indorsement. This blank indorsement was filed with the lower court for the first time in the Motion for Summary Judgment. Nowhere in the original petition did Deutsche Bank reference the undated blank indorsement. ¶2 WMC Mortgage Corporation (hereinafter WMC) was the original lender. Deutsche Bank filed with the County Clerk of Oklahoma County, a document entitled “Assignment of Real Estate Mortgage” on February 22, 2011. This document, which was dated February 15, 2011, claimed the assignment to be effective as Vol. 83 — No. 7 — 3/3/2012 The Oklahoma Bar Journal 501 of December 28, 2010. This was four months after the filing of the petition to foreclose.1 Additionally, this Assignment of Mortgage executed by Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for WMC and its successors and assigns, purportedly trans-ferred the grantor’s interest to Deutsche Bank as the trustee of WMC and was signed by a Vice President of MERS, Inc. There was only a mini-mal reference to the “note, debts and claims thereby secured. . .” in this assignment of mort-gage. A summary judgment was granted in Deustche Bank’s favor against Richardson, dated July 1, 2011, signed by the trial judge on September 19, 2011, and filed on September 21, 2011. All were memorialized by a final journal entry of judgment order. Richardson appealed this summary judgment asserting Deutsche Bank failed to demonstrate standing. STANDARD OF REVIEW ¶3 An appeal on summary judgment comes to this court as a de novo review. Carmichael v. Beller, 1996 OK 48, ¶2, 914 P.2d 1051, 1053. All infer-ences and conclusions are to be drawn from the underlying facts contained in the record and are to be considered in the light most favorable to the party opposing the summary judgment. Rose v. Sapulpa Rural Water Co., 1981 OK 85, 621 P.2d 752. Summary judgment is improper if, under the evidentiary materials, reasonable individu-als could reach different factual conclusions. Gaines v. Comanche County Medical Hospital, 2006 OK 39, ¶4, 143 P.3d 203, 205. ANALYSIS ¶4 Appellant argues Appellee does not have standing to bring this foreclosure action. Although Appellee has argued it holds the note, the record demonstrates conflicting evi-dence as to when Appellee became entitled to enforce the note. Appellee has presented evi-dence of an indorsement in blank, not at the time of filing the original petition (October 15, 2010), but attached as an exhibit to the motion for summary judgment filed May 26, 2011. The purported “assignment of mortgage” was filed on February 15, 2011, claiming to be effective December 28, 2010, four months after the filing of the original petition to foreclose. ¶5 The issue presented to this Court is stand-ing. This Court has previously held: Standing, as a jurisdictional question, may be correctly raised at any level of the judi-cial process or by the Court on its own motion. This Court has consistently held that standing to raise issues in a proceed-ing must be predicated on interest that is “direct, immediate and substantial.” Stand-ing determines whether the person is the proper party to request adjudication of a certain issue and does not decide the issue itself. The key element is whether the party whose standing is challenged has sufficient interest or stake in the outcome. Matter of the Estate of Doan, 1986 OK 15, ¶7, 727 P.2d 574, 576. In Hendrick v. Walters, 1993 OK 162, ¶ 4, 865 P.2d 1232, 1234, this Court also held: Respondent challenges Petitioner’s stand-ing to bring the tendered issue. Standing refers to a person’s legal right to seek relief in a judicial forum. It may be raised as an issue at any stage of the judicial process by any party or by the court sua sponte. (emphasis original) Furthermore, in Fent v. Contingency Review Board, 2007 OK 27, footnote 19, 163 P.3d 512, 519, this Court stated “[s]tanding may be raised at any stage of the judicial process or by the court on its own motion.” Additionally in Fent, this Court stated: Standing refers to a person’s legal right to seek relief in a judicial forum. The three threshold criteria of standing are (1) a legally protected interest which must have been injured in fact- i.e., suffered an injury which is actual, concrete and not conjec-tural in nature, (2) a causal nexus between the injury and the complained-of conduct, and (3) a likelihood, as opposed to mere speculation, that the injury is capable of being redressed by a favorable court deci-sion. The doctrine of standing ensures a party has a personal stake in the outcome of a case and the parties are truly adverse. Fent v. Contingency Review Board, 2007 OK 27, ¶7, 163 P.3d 512, 519-520. In essence, a plaintiff who has not suffered an injury attributable to the defendant lacks standing to bring a suit. And, thus, “standing [must] be determined as of the commencement of suit; . . .” Lujan v. Defenders of Wildlife, 504 U.S. 555, 570, n.5, 112 S.Ct. 2130, 2142, 119 L.Ed. 351 (1992).2 ¶6 To commence a foreclosure action in Okla-homa, a plaintiff must demonstrate it has a right to enforce the note and, absent a showing of ownership, the plaintiff lacks standing. Gill v. First Nat. Bank & Trust Co. of Oklahoma City, 1945 502 The Oklahoma Bar Journal Vol. 83 — No. 7 — 3/3/2012 OK 181, 159 P.2d 717.3 An assignment of the mortgage, however, is of no consequence because under Oklahoma law, “[p]roof of ownership of the note carried with it ownership of the mort-gage security.” Engle v. Federal Nat. Mortg. Ass’n, 1956 OK 176, ¶7, 300 P.2d 997, 999. Therefore, in Oklahoma it is not possible to bifurcate the secu-rity interest from the note. BAC Home Loans Ser-vicing, L.P. v. White, 2011 OK CIV APP 35, ¶ 10, 256 P.3d 1014, 1017. Because the note is a nego-tiable instrument, it is subject to the require-ments of the UCC. A foreclosing entity has the burden of proving it is a “person entitled to enforce an instrument” by showing it was “(i) the holder of the instrument, (ii) a nonholder in possession of the instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to Section 12A-3-309 or subsection (d) of Section 12A-3-418 of this title.” 12A O.S. 2001 §3-301. ¶7 To demonstrate you are the “holder” of the note you must establish you are in posses-sion of the note and the note is either “payable to bearer” (blank indorsement) or to an identi-fied person that is the person in possession (special indorsement).4 Therefore, both posses-sion of the note and an indorsement on the note or attached allonge5 are required in order for one to be a “holder” of the note. ¶8 To be a “nonholder in possession who has the rights of a holder” you must be in posses-sion of a note that has not been indorsed either by special indorsement or blank indorsement. Negotiation is the voluntary or involuntary transfer of an instrument by a person other than the issuer to a person who thereby becomes its holder. 12A O.S. 2001, § 3-201. Transfer occurs when the instrument is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument. 12A O.S. 2001, § 3-203. Delivery of the note would still have to occur even though there is no negotiation. Delivery is defined as the voluntary transfer of possession. 12A O.S. 2001, § 1-201(b)(15). The transferee would then be vested with any right of the transferor to enforce the note. 12A O.S. 2001, 3-203(b). Some jurisdictions have held that without holder status and therefore the presumption of a right to enforce, the pos-sessor of the note must demonstrate both the fact of the delivery and the purpose of the delivery of the note to the transferee in order to qualify as the person entitled to enforce. In re Veal, 450 B.R. 897, 912 (B.A.P. 9th Cir. 2011). See also, 12A O.S. 2001, § 3-203. ¶9 In the present case, Appellee has present-ed evidence in support of the motion for sum-mary judgment of an indorsed-in-blank note, and an “Assignment of Mortgage” both argu-ably obtained after the filing of the petition. Appellee must prove it is the holder of the note or the nonholder in possession who has the rights of a holder prior to the filing of the fore-closure proceeding. In the present matter the timeliness of the transfer is a disputed fact issue. Since Deutsche Bank did not file the blank indorsement until it filed its motion for summary judgment it is impossible to deter-mine from the record when Deutsche Bank acquired its interest in the underlying note. ¶10 The assignment of a mortgage is not the same as an assignment of the note. If a person is trying to establish they are a nonholder in possession who has the rights of a holder, they must bear the burden of establishing their sta-tus as a nonholder in possession with the rights of a holder. Appellee must establish delivery of the note as well as the purpose of that delivery. In the present case, it appears Appellee is try-ing to use the assignment of mortgage in order to establish the purpose of delivery. The assign-ment of mortgage purports to transfer “For value received, the undersigned, Mortgage Electronic Registration Systems, Inc., as nomi-nee for WMC and its successors and assigns does hereby assign, transfer and set over unto Deutsche Bank National Trust Company, as Trustee of MASTR 2007-02, that certain real estate mortgage dated August 3, 2006, granted by Cory L. Richardson and Ernestine Richard-son, a/k/a Ernestine V. Richardson, husband and wife “together with the note, debts and claims thereby secured, covering the following described real estate. . .” We do not address the issue of whether MERS, as nominee of WMC had the authority to assign the note in question as the date of the assignment is well after the filing of the petition. ¶11 Appellee must show it became a “person entitled to enforce” prior to the filing of the foreclosure proceeding. There is a question of fact as to when and if this occurred, and thus summary judgment is not appropriate. There-fore, we reverse the granting of summary judg-ment by the trial court and remand back for further determinations. If it is determined Deutsche Bank became a person entitled to enforce the note as either a holder or nonholder Vol. 83 — No. 7 — 3/3/2012 The Oklahoma Bar Journal 503 in possession who has the rights of a holder after the foreclosure action was filed, then the case may be dismissed without prejudice and the action may be re-filed in the name of the proper party. CONCLUSION ¶12 It is a fundamental precept of the law to expect a foreclosing party to actually be in pos-session of its claimed interest in the note, and to have the proper supporting documentation in hand when filing suit, showing the history of the note, so that the defendant is duly apprised of the rights of the plaintiff. This is accomplished by showing the party is a holder of the instrument or a nonholder in possession of the instrument who has the rights of a hold-er, or a person not in possession of the instru-ment who is entitled to enforce the instrument pursuant to 12A O.S. 2001, § 3-309 or 12A O.S. 2001, § 3-418. Likewise, for the homeowners, absent adjudication on the underlying indebted-ness, the dismissal cannot cancel their obligation arising from an authenticated note, or insulate them from foreclosure proceedings based on proven delinquency and therefore, this Court’s decision in no way releases or exonerates the debt owed by the defendants on this home. See, U.S. Bank National Association v. Kimball 27 A.3d 1087, 75 UCC Rep.Serv.2d 100, 2011 VT 81 (VT 2011); and Indymac Bank, F.S.B. v. Yano-Horoski, 78 A.D.3d 895, 912 N.Y.S.2d 239 (2010). REVERSED AND REMANDED WITH INSTRUCTIONS ¶13 CONCUR: TAYLOR, C.J., KAUGER, WATT, EDMONDSON, REIF, COMBS, JJ. ¶14 CONCUR IN PART; DISSENT IN PART: GURICH (by separate writing), WIN-CHESTER (joins Gurich, J.), JJ. ¶15 RECUSED: COLBERT, V.C.J. 1. Appellee filed an amended petition on January 28, 2011, which added additional defendants but made no change in the allegations as between the Appellant and Appellee. 2. The concurring in part; dissenting in part opinion in this matter relies upon Justice Opala’s concurring opinion in Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, 890 P.2d 906, for the proposition that standing is not a jurisdictional question. Justice Opala’s concurring opinion was not the majority opinion of this Court and as such “a minority opinion has no binding, precedential value.” 20 Am.Jur. 2d Courts §138. 3. This opinion was rendered prior to the enactment of the UCC. It is, however, possible for the owner of the note not to be the person entitled to enforce the note if the owner is not in possession of the note. (See the REPORT OF THE PERMANENT EDITORIAL BOARD FOR THE UNIFORM COMMERCIAL CODE, APPLICATION OF THE UNI-FORM COMMERCIAL CODE TO SELECTED ISSUES RELATING TO MORTGAGE NOTES (NOVEMBER 14, 2011)). 4. 12A O.S. 2001, §§ 1-201(b)(21), 3-204 and 3-205. 5. According to Black’s Law Dictionary (9th ed. 2009) an allonge is “[a] slip of paper sometimes attached to a negotiable instrument for the purpose of receiving further indorsements when the original paper is filled with indorsements.” See, 12A O.S. 2001, § 3-204(a). GURICH, J., with whom WINCHESTER, J. joins, concurring in part and dissenting in part: ¶1 I concur that there are fact issues present and summary judgment, under the evidentiary materials, is improper in this case.1 ¶2 However, I respectfully dissent to the majority’s statement that “[t]o commence a foreclosure action in Oklahoma, a plaintiff must demonstrate it has a right to enforce the note, and absent a showing of ownership, the plaintiff lacks standing.” See Majority Op. ¶ 5. Gill v. First Nat. Bank & Trust Co., 1945 OK 181, 159 P.2d 717.2 I agree that in any foreclosure action a party must demonstrate it is the prop-er party to request adjudication of the issues. However, the issue of whether a party is the proper party to request adjudication of the issues is a real-party-in-interest issue, not an issue of “standing,” as the majority frames it. See Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, 890 P.2d 906 (Opala, J., concur-ring). Justice Opala framed the issue correctly in Toxic Waste Impact Group: Standing in the federal legal system is imbued with a constitutional/jurisdiction-al dimension, while in the body of state law it fits under the rubric of ordinary procedure. The U.S. Constitution, Article III, has long been held to require that a “case” or “con-troversy” is essential to invoke federal judicial jurisdiction and that a person’s competence to bring an action is a core component of standing in a case-or-contro-versy inquiry. It is for this reason that standing is an integral part of the mecha-nism for invoking the federal judiciary’s power. Oklahoma’s fundamental law places no restraint on the judiciary’s power analo-gous to the federal case-or-controversy requirement. Under the earlier Code of Civil Procedure the suit had to be brought by the real party in interest. That require-ment has always been non-jurisdictional. If a state court proceeded to adjudicate a claim pressed by one not in that status, its decision was not fraught with jurisdiction-al infirmity but rather regarded as errone-ous for want of proof to establish an impor-tant element of the claim. An error in this category is waivable at the option of the defendant; and, if not asserted on appeal, 504 The Oklahoma Bar Journal Vol. 83 — No. 7 — 3/3/2012 the reviewing court may reach the merits of the case despite a plaintiff’s apparent lack of standing at nisi prius. Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, 890 P.2d 906 (Opala, J., concur-ring, ¶¶ 2-3) (emphasis added). ¶3 The majority in this case cites Hendrick v. Walters, 1993 OK 162, ¶ 4, 865 P.2d 1232, 1234 and Fent v. Contingency Review Board, 2007 OK 27, n.19, 163 P.3d 512, 519 for the proposition that “standing may be raised at any stage of the judicial process or by the court on its own motion.” See Majority Op. ¶ 4. Those cases cite Matter of the Estate of Doan, 1986 OK 15, ¶ 7, 727 P.2d 574, as authority for this proposition. Arguably, however, Doan misstates the law: Ever since the Code of Civil Procedure was replaced in 1984 by the Pleading Code, our nomenclature for identifying the party entitled to sue, which began to follow that of federal jurisprudence, has used “stand-ing” as if it were a functional equivalent of the earlier procedural terms of art — real party in interest, one with appealable inter-est, one occupying the aggrieved-party or pecuniary-interest status. It was during this transition that one of our opinions inadvertently referred to “standing” in terms of a jurisdictional requirement, thus creating the misimpression that the term has a jurisdictional dimension. Oklahoma’s constitution has no case-or-controversy clause. Standing is hence to be viewed as an adjective-law concept. The inadvertent reference to the contrary should be treated as ineffective to alter standing’s true char-acter in the body of our procedural law. . . . . I concur in today’s opinion and in the dis-position of the cause. If I were writing for the court, I would additionally declare that Doan’s inadvertent reference to federal law is to be viewed as withdrawn. Lujan’s tri-partite standing test, which we adopt today, must be treated as having been received sans its federal jurisdictional baggage. See Toxic Waste Impact Group, 1994 OK 148 (Opala, J., concurring ¶ 4). ¶4 Additionally, both Hendrick and Fent were original actions in this Court. As such, “standing” could have been raised at any point by this Court sua sponte. However, in a pro-ceeding in District Court, because it is a non-jurisdictional issue, failure to assert that the Plaintiff is not the real party in interest may be waived. See Liddell v. Heavner, 2008 OK 6, n.5, 180 P.3d 1191 (Opala, J., majority Op.); see also 12 O.S. 2012 § 2008(D). ¶5 In this case, the facts demonstrate that Defendant raised this issue in the Answer as well as in the Response to Motion for Summary Judgment. As such, the issue was properly appealed. ¶6 The majority also holds that a foreclosing party must have the “proper supporting docu-mentation in hand when filing suit.” See Majority Op. ¶ 10 (emphasis added). Oklahoma plead-ing procedure does not require a plaintiff to have all evidence necessary to prevail on its claim at the time of the filing. Rather, what is required is a “short and plain statement of the claim showing that the pleader is entitled to relief.” 12 O.S. 2012 § 2008(A)(1). Additionally, 12 O.S.2012 § 2011(B)(3) provides that an attor-ney filing anything with the court certifies that to “the best of the person’s knowledge, infor-mation and belief, formed after an inquiry reasonable under the circumstances . . . the allegations and other factual contentions have evidentiary support or, if specifically so identi-fied, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.” 12 O.S. 2012 § 2011(B)(3) (emphasis added).3 Mortgage foreclosures, like other civil actions, allow the parties to continue to inves-tigate and discover evidence up until the time of judgment. ¶7 While I agree that questions of fact exist so that summary judgment was improper in this case, I cannot agree with the majority’s holding that the plaintiff must have the “proper support-ing documentation in hand when filing suit” because no authority states such and the Okla-homa pleading code requires otherwise. 1. The record indicates that the note presented at summary judg-ment was not indorsed. As such, a question of fact remains as to whether Plaintiff was the holder of the note, summary judgment was improper in this case. However, on remand, the trial court, rather than dismiss the petition, may allow the Plaintiff to amend its petition. HSBC Bank USA v. Lyon, 2012 OK 10, ¶ 1, __P.3d__. 2. In Gill, the plaintiff brought an action to foreclose a mortgage on real property. There was no discussion in the case of whether the plain-tiff had standing to bring the action or whether the plaintiff was the real party in interest. In fact, the case was tried to the Court, and the appeal turned on the sufficiency of evidence presented at trial. The Gill decision stands for the proposition that the assignment of the note car-ries with it an assignment of the mortgage. It is not relevant to the standing analysis, nor does it stand for the proposition that the plain-tiff must prove at the time of filing that it has a right to enforce the note. 3. Likewise, while I agree that the UCC applies in this case because the note is a negotiable instrument, the UCC does not require that a foreclosing entity prove at the time of filing that it is the person entitled to enforce the instrument. Vol. 83 — No. 7 — 3/3/2012 The Oklahoma Bar Journal 505 Director of Educational Programs Oklahoma Bar Association The Oklahoma Bar Association (OBA), the leading provider of Continuing Legal Education in the state of Oklahoma, seeks a Director of Educational Programs. The position manages and directs the OBA’s CLE Department and other educational events for the Association. The OBA CLE Department offers comprehensive and unique live programming for Oklahoma lawyers and has an impressive list of online programs and webinars that are of interest to lawyers nationwide. The OBA is a mandatory bar association of 17,000 members with its headquarters in Oklahoma City. Job Summary: The position is responsible for CLE development, advertising, planning and coordi-nating numerous Continuing Legal Education programs annually, as well as, planning and partici-pating in organizational meetings, adult public education programs, working closely with Law-related Education Department to provide programs for K-12 classroom instruction and Leadership Academy. CLE Programs include live presentations, webcasts and online learning opportunities. The Director of Educational Programs is responsible for managing a staff of five employees, all pre and post program logistics, communication to program attendees and faculty members, administrative reporting, vendor and sponsorship coordination and providing on-site support to assigned pro-grams. Competitive salary and excellent benefit package available to qualified candidates. Required Skills: • Law Degree with at least five years of legal practice or CLE management experience. • Must be self-motivated, positive, dependable, creative, possess a high degree of integrity, and participate as a team member to achieve common goals. • Demonstrate ability to successfully manage multiple priorities with a solid work ethic. • Proven proficiency in handling financial matters and department budgetary requirements. • Must be able to meet member requirements in a fast-paced work environment. • Strong customer service orientation. • Must be detail oriented with planning and organizational skills. • Patience and tact to work with all members. • Excellent communication; phone, email and interpersonally. • Ability to build relationships with faculty, participants and outside vendors. • Problem solver, quick thinker and idea generator. • Superior writing and editing skills. • Physical effort and dexterity include the ability to work within limits of an inside office position plus the ability to haul and transport equipment or materials required to conduct a CLE seminar. Computer Skills: Must be able to function in a Windows desktop environment Must be familiar with Microsoft Office Suite including Outlook and Excel Proficient in Email communications Internet resource, research and marketing knowledge Knowledge of online CLE presentations Send cover letter & resume in PDF format by March 30, 2012 to: EPDirectorSearch@Okbar.org All inquires and applications will be kept confidential. The OBA is an equal opportunity employer. 506 The Oklahoma Bar Journal Vol. 83 — No. 7 — 3/3/2012 Court of Civil Appeals Opinions 2012 OK CIV APP 11 DON HONEYWELL, Plaintiff, vs. GADA BUILDERS, INC., LARRY BRANNON PLUMBING & MECHANICAL, INC., and HUGHES ELECTRIC, INC., Defendants, and LARRY BRANNON PLUMBING & MECHANICAL, INC., and GADA BUILDERS, INC., Third-Party Plaintiffs/ Appellees, vs. GASTITE, a division of TITEFLEX, a foreign corporation, Third- Party Defendant/Appellant. Case No. 109,277. October 27, 2011 APEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE P. THOMAS THORNBRUGH, JUDGE AFFIRMED IN PART, REVERSED IN PART AND REMANDED Truman B. Rucker, WILSON, CAIN & ACQUA-VIVA, Tulsa, Oklahoma, Michael G. McAtee, MCATEE & WOODS, P.C., Oklahoma City, Oklahoma, for Third-Party Plaintiffs/Appellees, Joseph R. Farris, Jeremy K. Ward, FELDMAN, FRANDEN, WOODARD, FARRIS, Tulsa, Okla-homa, for Third-Party Defendant/Appellant. Kenneth L. Buettner, Judge: ¶1 Plaintiff Don Honeywell’s house was struck by lightning and destroyed by fire. Plaintiff sued GADA Builders, Inc. (Builder), the homebuilder, and Larry Brannon Plumbing & Mechanical, Inc. (Plumber), the subcontrac-tor hired to install the gas distribution system, for negligence and breach of contract. Plumber filed a third party petition against Gastite, the manufacturer of the corrugated stainless steel tubing (CSST) used in the distribution system. Counsel for Gastite entered an appearance in the case. Plaintiff then filed an Amended Peti-tion adding Gastite as a Defendant and alleg-ing damages caused by the defective CSST against Gastite, Builder, and Plumber. Plaintiff later filed a Second Amended Petition, aban-doning his negligence theory and alleging strict products liability claims against Gastite, Builder, Plumber. Plaintiff settled with the Defendants. Based on 12 O.S. Supp. 2004 § 832.1, Builder and Plumber sought indemnifi-cation from Gastite, the manufacturer, for attor-ney fees and costs incurred in defending the product liability action. The trial court granted summary judgment to Builder and Plumber and ordered Gastite to indemnify them for attorney fees and costs incurred between March 27, 2007, the date Gastite’s counsel entered an appearance, and the conclusion of the indem-nification proceedings. As a matter of first impression, Gastite asks this court to interpret 12 O.S. § 832.1. After de novo review, we hold that Gastite’s duty to indemnify was triggered May 31, 2007, when Plaintiff filed his Amended Petition. Therefore, we affirm in part, reverse in part and remand for the limited purpose of calculating reasonable attorney fees and costs incurred between May 31, 2007 and the conclu-sion of the indemnification proceedings. ¶2 Plaintiff contracted with Builder to build his home in Broken Arrow, Oklahoma. Plumb-er was the subcontractor hired by Builder to install the gas distribution system throughout the house. Plumber installed the system using corrugated stainless steel tubing (CSST). The CSST was manufactured by Gastite. After Plaintiff’s house was struck by lightning and destroyed, he filed the underlying lawsuit. ¶3 Plaintiff’s original Petition, filed Decem-ber 19, 2006, named Builder and Plumber as defendants.1 Plaintiff alleged the following as his first cause of action: V. The fire and the resulting damage were caused by the improper installation of the electrical and gas distribution systems in the house. VI. Builder was negligent in failing to supervise the work of Hughes and Plumb-er. Builder failed to warn the plaintiff of the fire hazard caused by the improper instal-lation of the electrical and gas distribution systems in the house. . . . VII. Plumber was negligent in the installa-tion of the gas distribution system. Plumb-er failed to warn the Plaintiff of the fire Vol. 83 — No. 7 — 3/3/2012 The Oklahoma Bar Journal 507 hazard caused by the improper installation of the gas distribution system. IX. As a result of the negligence of the Defendants and each of them and the resulting fire, Plaintiff sustained damages in excess of $10,000.00. Plaintiff alleged in his second cause of action that Builder was liable for breach of contract for failing to construct the home in a good and workmanlike manner. ¶4 Plumber filed a third party petition against Gastite February 21, 2007. Plumber alleged that the fire and damages claimed by the Plaintiff were caused by the failure of the CSST, that the defective CSST was manufactured by Gastite, that at the time the CSST left Gastite’s control it was defective and unreasonably dangerous, and that Plaintiff was a reasonably anticipated consumer. Counsel for Gastite entered an appearance in the case March 27, 2007. Builder filed a third-party petition against Gastite April 9, 2007. ¶5 On May 31, 2007, Plaintiff filed an Amend-ed Petition. Plaintiff named Builder, Plumber, and Gastite as Defendants and made the fol-lowing allegations: VII. The fire and the resulting damage were caused by the improper installation of the electrical and gas distribution systems in the house. VIII. Builder was negligent in failing to supervise the work of Hughes and Plumb-er. Builder failed to warn the plaintiff of the fire hazard caused by the improper instal-lation of the electrical and gas distribution systems in the house. . . . X. Plumber was negligent in the installa-tion of the gas distribution system. Plumb-er failed to warn the Plaintiff of the fire hazard caused by the improper installation of the gas distribution system. XI. The fire and resulting damage were caused by the failure of the corrugated stain-less steal tubing (CSST). The CSST was manufactured and placed in the stream of commerce by Gastite, a division of Titeflex. XII. The CSST was installed by the Defen-dant, Plumber, at the direction and under the supervision of Builder. XIII. The CSST was defective at the time it left the control of Gastite. The defect made the product unreasonably dangerous. The Plaintiff was a reasonably anticipated con-sumer of CSST. XIV. As a result of the negligence of the Defendants, Builder, Plumber and Hughes Electric, the failure of the Gastite CSST and the resulting fire, Plaintiff sustained dam-ages in excess of $10,000.00. Plaintiff also recited his second cause of action against Builder for breach of contract for failing to construct the home in a good and workmanlike manner. ¶6 The parties engaged in discovery for eigh-teen months and filed cross-claims seeking indemnification and/or contribution. Plaintiff filed a Second Amended Petition December 18, 2008. Plaintiff abandoned his negligence theory against Builder and Plumber and alleged strict products liability claims against Gastite, Build-er, and Plumber:2 VII. The fire and resulting damage were caused by a defective product, corrugated stainless steel tubing (CSST) sic was designed and manufactured by the Defen-dant, Gastite. The CSST was defective at the time it left the control of Gastite. The defect made the product unreasonably dangerous. The Plaintiff was a reasonably anticipated consumer of CSST. VIII. Defendants, Builder, Plumber, and Gastite, a division of Titeflex, sold and/or distributed the defective product and are liable to Plaintiff under Oklahoma’s manu-facturers products liability. Plaintiff maintained his breach of contract action against Builder, but changed the theory of liability: X. Pursuant to the terms of the contract, the Defendant was to construct a home free of defective material and products. XI. The Defendant, Builder, breached its contract by failing to provide the home to the Plaintiff free of defective materials and products. As a result of the breach of con-tract, a fire occurred which destroyed Plaintiff’s home and personal property. ¶7 Shortly after Plaintiff filed his Second Amended Complaint, Gastite defended the lawsuit on behalf of Builder and Plumber. 508 The Oklahoma Bar Journal Vol. 83 — No. 7 — 3/3/2012 Builder and Plumber claimed they were sellers of CSST and, based on 12 O.S. § 832.1, sought indemnification from Gastite, the product manufacturer, for attorney fees and costs incurred in defending the product liability action. All parties filed motions for summary judgment. In the meantime, Gastite settled the underlying lawsuit, and Plaintiff dismissed all claims against all Defendants November 30, 2009. Therefore, only the issue of indemnifica-tion remained for the trial court. ¶8 According to 12 O.S. § 832.1, “[a] manufac-turer shall indemnify and hold harmless a seller against loss arising out of a product liability action, except for any loss caused by the seller’s negli-gence, intentional misconduct, or other act or omission, such as negligently modifying or altering the product, for which the seller is inde-pendently liable.” 12 O.S. Supp. 2004 § 832.1.A (emphasis added). “For purposes of this section, ‘loss’ includes court costs and other reasonable expenses, reasonable attorney fees, and any rea-sonable damages.” Id., § 832.1.B. ¶9 Builder and Plumber argued that the case became a “product liability action” no later than March 27, 2007, the date Gastite’s attorney entered an appearance in the case. Therefore, Gastite’s statutory duty to indemnify sellers for attorney fees and costs was triggered March 27, 2007. Builder and Plumber explained that Gastite was notified of the product liability action and their demands for indemnification through their third party petitions. Builder and Plumber argued that Gastite’s duty to indem-nify was triggered before Plaintiff abandoned his negligence theory in the Second Amended Petition filed December 18, 2008. Builder and Plumber argued that Gastite could only negate its indemnity duty by showing that Builder and Plumber’s independent negligence caused the loss. ¶10 Gastite argued that Builder was not a “seller” as contemplated by the statute and, therefore, Gastite had no duty to indemnify Builder. Gastite argued that even if Builder was a seller, there was not a “product liability action” until Plaintiff filed his Second Amend-ed Petition December 18, 2008. Gastite argued that Plaintiff’s Second Amended Petition, for the first time, asserted product liability claims against Builder and Plumber. Gastite argued that between March 27, 2007 and December 18, 2008, Builder and Plumber only generated attorney fees and costs by defending claims against them for active and independent negli-gence and breach of contract, not products lia-bility. Gastite argued that § 832.1 does not require manufacturers to indemnify sellers for fees and costs in defending Plaintiff’s claims of independent negligence. ¶11 The trial court granted summary judg-ment to Builder and Plumber for attorney fees incurred between March 27, 2007, when counsel for Gastite entered an appearance in the case, and the conclusion of indemnification proceed-ings. Several months later, the trial court heard evidence on the amount of reasonable attorney fees. The trial court awarded $242,494.18 to Builder and $152,500.00 to Plumber for reason-able attorney fees, expenses, and costs arising out of the product liability action. ¶12 Gastite raises nine issues on appeal, but several are duplicates. Gastite asks this court to interpret 12 O.S. § 832.13 and determine wheth-er the attorney fees and costs awarded to Builder and Plumber were reasonable. No reported Oklahoma decisions have interpreted 12 O.S. § 832.1. ¶13 Summary judgment proceedings are governed by Rule 13, Rules for District Courts, 42 O.S. 2001, Ch. 2, App.1. Summary judgment is appropriate where the record establishes no substantial controversy of material fact and the prevailing party is entitled to judgment as a matter of law. Brown v. Alliance Real Estate Group, 1999 OK 7, ¶7, 976 P.2d 1043, 1045. The parties agree on the facts material to this dis-pute. Where the facts are not disputed, an appeal presents only a question of law. Jones v. Purcell Investments, LLC, 2010 OK CIV AP 15, ¶2, 231 P.3d 706, 708. In its Petition in Error, Gastite has alleged the question of law is the interpretation of 12 O.S. § 832.1. Issues of statu-tory construction are questions of law to be reviewed de novo, and appellate courts exercise plenary, independent, and non-deferential authority. Welch v. Crow, 2009 OK 20, ¶10, 206 P.3d 599, 603. In cases requiring statutory con-struction, the cardinal rule is to ascertain and give effect to the intent of the Legislature. Id. The words of a statute will be given a plain and ordinary meaning, unless it is contrary to the purpose and intent of the statute considered as a whole. Naylor v. Petuskey, 1992 OK 88, ¶4, 834 P.2d 439, 440. Legislative purpose and intent may be ascertained from the language in the title to a legislative enactment. Id. Vol. 83 — No. 7 — 3/3/2012 The Oklahoma Bar Journal 509 BUILDER WAS A SELLER OF CSST ¶14 According to 12 O.S. § 832.1, manufac-turers are required to indemnify sellers for loss arising out of a product liability action. 12 O.S. Supp. 2004 § 832.1.A. “[A] wholesale distribu-tor or retail seller who completely or partially assembles a product in accordance with the manufacturer’s instructions shall be consid-ered a seller.” Id., § 832.1.D. ¶15 Builder filed a motion for summary judgment arguing it was entitled to indemnity for attorney fees and costs incurred while defending Plaintiff’s claims. Builder included in its statement of material facts not in dispute: “6. [Builder] was a seller of the CSST as con-templated by Title 12 O.S. § 832.1.” Gastite’s response admitted was: “6. Not disputed, but not material to the determination of [the indem-nification issue].” ¶16 Gastite did not dispute Builder’s status as a seller of CSST until it filed its own motion for summary judgment October 15, 2009. Despite its previous admission, Gastite claimed it was undisputed that Builder was not a retail seller or distributor of CSST.4 In response, Builder cited Gastite’s previous admission that Builder was a seller of CSST within the mean-ing of § 832.1 and argued that Gastite should be estopped from claiming otherwise.5 ¶17 We hold that Builder was a seller as con-templated by 12 O.S. § 832.1. Middlemen in the chain of distribution are subject to strict prod-ucts liability.6 The policy reasons for imposing strict products liability on non-manufacturer sellers provide guidance in determining wheth-er Builder should be classified as a seller. The rationale for imposing strict liability on retail-ers and distributors is founded upon the public interests in human safety and protecting the ultimate consumer. Retailers and distributors, like manufacturers, are engaged in the busi-ness of distributing goods to the public. “[Retailers] are an integral part of the overall producing and marketing enterprise that should bear the cost of injuries resulting from defective products.” Moss v. Polyco, Inc., 1974 OK 53, ¶13, 522 P.2d 622, 626 (citing Vander-mark v. Ford Motor Co., 391 P.2d 168, 171 (Cal. 1964)). “Strict liability on the manufacturer and retailer alike affords maximum protection to the injured plaintiff and works no injustice to the defendants, for they can adjust the costs of such protection between them in the course of their continuing business relationships.” Id. (citing Vandermark, 391 P.2d at 172). The same policy reasons justify imposing strict liability on distributors. A distributor, for the purpose of strict products liability, is defined as “one who engages in the activity of making the defective product available for the use of oth-ers.” Potter v. Paccar Co., 519 F. Supp. 487, 489 (W.D. Okla. 1981). ¶18 Plaintiff contracted with Builder to build a home, which inherently included purchasing all of the building materials. Builder subcon-tracted with Plumber to install the gas distribu-tion system, which included purchasing the CSST and other materials used in the system. Plumber purchased the CSST from Gastite, the manufacturer. Plumber was certified by Gastite to install the CSST. The purpose of § 832.1 is to require the manufacturer to indemnify those in the distribution chain against expenses and damages in product liability actions. For pur-poses of this statute, the builder of a house is a “seller” of the products used in the construc-tion of the house. GASTITE’S DUTY TO INDEMNIFY BUILDER AND PLUMBER WAS TRIGERED BY PLAINTIFF’S AMENDED PETITION ¶19 We must determine when the underly-ing lawsuit became a “product liability action” and Gastite’s statutory duty to indemnify Builder and Plumber for their attorney fees and costs was triggered. Title 12 O.S. § 832.1.A. states: “A manufacturer shall indemnify and hold harmless a seller against loss arising out of a product liability action . . .” (emphasis added). ¶20 A manufacturer’s duty to indemnify a seller for attorney fees and costs arising out of a product liability action is triggered by the plaintiff’s pleadings.7 The Legislature intended to provide indemnity to sellers regardless of the outcome of the case.8 The Legislature also intended that the indemnity duty was to be based on the plaintiff’s pleadings.9 The general philosophy of the Oklahoma Pleading Code is that pleadings should give fair notice of the plaintiff’s claim and be subject to liberal amend-ment. Wilson v. Webb, 2009 OK 56, ¶9, 221 P.3d 730, 734. Pleadings should be liberally con-strued so as to do substantial justice. Id. Accord-ingly, we liberally construe Plaintiff’s petitions to determine when the lawsuit became a prod-uct liability action and the manufacturer’s statutory duty was triggered. A “product liabil-ity action” is based on injuries caused by a defective product. In order for there to be a 510 The Oklahoma Bar Journal Vol. 83 — No. 7 — 3/3/2012 “product liability action,” the plaintiff must plead that a product was defective. ¶21 Gastite argues that between March 27, 2007 (when Gastite’s counsel entered an appear-ance) and December 18, 2008 (when Plaintiff filed his Second Amended Petition) no product liability claim was asserted against Builder or Plumber; therefore, there was no “product lia-bility action.” Gastite argues it did not have a duty to indemnify Builder and Plumber before December 18, 2008, because Builder and Plumb-er were only defending independent negli-gence claims. ¶22 We agree with Gastite with respect to the period of time between March 27, 2007 and May 30, 2007. Plaintiff’s original Petition did not allege damages caused by a defective prod-uct; therefore, there was no product liability action. The trial court erred in finding the duty to indemnify was triggered when Gastite’s counsel entered an appearance in the case. Plaintiff’s pleadings triggered Gastite’s duty to indemnify, not Plumber’s third-party petition. A seller cannot transform a negligence action into a “product liability action” via a third-party petition. Only the plaintiff’s pleadings can create a “product liability action.” Gastite did not have a duty to indemnify Builder or Plumber between March 27, 2007 and May 30, 2007. Therefore, we reverse the trial court’s order that Gastite had a duty to indemnify Builder and Plumber for attorney fees and costs generated between March 27, 2007 and May 30, 2007. ¶23 Plaintiff filed an Amended Petition May 31, 2007. Gastite argues that the Amended Peti-tion merely repeated the claims in Plaintiff’s original Petition that Builder and Plumber were negligent, independent of any allegations that the CSST was defective. Gastite suggests that Plaintiff amended his petition to name Gastite as a defendant and assert a products liability claim against Gastite only. We dis-agree. Gastite has mis-characterized the allega-tions made against Builder and Plumber in Plaintiff’s Amended Petition. We hold that Plaintiff’s Amended Petition alleged a product liability action against Builder and Plumber and triggered Gastite’s duty to indemnify Builder and Plumber. ¶24 Reading the Amended Petition liberally, Plaintiff alleged product liability claims against not only Gastite, but also Builder and Plumber. A product liability action is based on an injury caused by a defective product. A plaintiff injured by a defective product can utilize vari-ous theories to recover for injuries caused by the product. A product liability action may be based on a theory of negligence liability or strict prod-ucts liability. The Oklahoma Supreme Court in the seminal products liability case, Kirkland v. General Motors Corp., noted that a plaintiff is not required to elect one theory of liability. 1974 OK 52, ¶40, 521 P.2d 1353, 1365. Even with the advent of strict products liability, the negligence cause of action remains available to a plaintiff injured by a defective product. ¶25 Plaintiff alleged in his Amended Petition that the CSST was a defective product, that Plumber negligently installed a defective prod-uct, that Builder negligently directed and super-vised the installation of the defective product, and that he was injured by the defective prod-uct. The negligence claims against Builder and Plumber were not claims of negligence indepen-dent of the defective product. Rather, Plaintiff claimed negligent installation of the defective product and negligent supervision of its installa-tion. Therefore, based on the allegations made in Plaintiff’s Amended Petition, a product liability action commenced and Gastite’s statutory duty to indemnify Builder and Plumber was triggered May 31, 2007. We affirm the trial court’s order that Gastite had a duty to indemnify Builder and Plumber for defense costs sustained between May 31, 2007 and the conclusion of the indemni-fication proceedings.10 ¶26 A manufacturer’s statutory duty to indemnify a seller for attorney fees and costs is analogous with an insurer’s duty to defend the insured.11 The insurer and the manufacturer are obligated to finance the insured and seller’s defense, respectively. The insurer defends on behalf of the insured12 and the manufacturer indemnifies the seller for its defense costs. Just as the insurer’s duty is triggered by facts gleaned from the plaintiff’s pleadings against the insured, the manufacturer’s duty is trig-gered by the plaintiff’s pleadings against the seller. If the plaintiff states a claim against the insured that is potentially covered by the insur-ance contract, the insurer’s duty is triggered. However, if the plaintiff makes allegations that are not potentially covered by the insurance contract, the insurer has no duty. If the plaintiff asserts a product liability action against the seller, the manufacturer’s duty is triggered. But if the plaintiff asserts a non-product liability Vol. 83 — No. 7 — 3/3/2012 The Oklahoma Bar Journal 511 action against the seller, the manufacturer has no duty. ¶27 Builder and Plumber relied heavily on Texas case law. Texas has a nearly identical products liability indemnification statute.13 We recognize that the outcome in this case aligns with the outcome of the Texas Supreme Court’s decision in Meritor Automotive, Inc. v. Ruan Leasing Co., 44 S.W.3d 86 (Tex. 2001).14 However, the facts of this case, including the allegations made in Plaintiff’s pleadings, do not mirror the facts and allegations in Meritor. Therefore, our holding is limited to the facts before this court, not the facts of Meritor. ¶28 The Texas Supreme Court held that “the seller’s reasonable cost to defend an unsuccess-ful negligence claim, asserted independently of the products liability claim, is properly includ-ed as part of the ‘loss arising out of a products liability action,’ so that it is within the manu-facturer’s indemnity duty.” Meritor, 44 S.W.3d at 87 (disapproving Hurst v. Amer. Racing Equip., Inc., 981 S.W.2d 458 (Tex. App. 1998)). In the case before this court, Plaintiff’s Amended Petition did not contain a “negligence claim, asserted independently of the products liability claim.” The issue on appeal is not whether a claim of truly independent negligence against a seller joined to a strict products liability claim against a manufacturer is part of a “product liability action” for purposes of 12 O.S. § 832.1. For the reasons discussed above, Plaintiff’s Amended Petition asserted product liability claims against Builder and Plumber, not negli-gence claims unrelated to a defective product. Where a negligence claim is based on a defec-tive product, the reasonable cost of defending that claim is a “loss arising out of a product liability action.” EXCEPTION TO INDEMNITY DUTY ¶29 Title 12 O.S. § 832.1.A. includes an excep-tion to the manufacturer’s indemnity duty: “A manufacturer shall indemnify and hold harm-less a seller against loss arising out of a product liability action, except for any loss caused by the seller’s negligence, intentional misconduct, or other act or omission, such as negligently modifying or altering the product, for which the seller is indepen-dently liable.” 12 O.S. Supp.2004 § 832.1.A (emphasis added). ¶30 On appeal, Gastite asks this court to determine “[w]hether the trial court erred in interpreting 12 O.S. § 832.1 as requiring the manufacturer to prove its seller committed active and independent negligence to defend a claim for indemnification-even though the Plaintiff specifically pled active and indepen-dent negligence causes of action against the seller.” We previously discussed Gastite’s mis-characterization of the claims asserted against Builder and Plumber in Plaintiff’s Amended Petition. Plaintiff alleged active and indepen-dent negligence against Builder and Plumber in his original Petition. However, in his Amend-ed Petition, Plaintiff asserted claims against Builder and Plumber for damages arising out of property damage caused by a defective product. Plaintiff based his product liability claims against Builder and Plumber on a negli-gence theory of liability and abandoned his claims of independent negligence. Thus, the lawsuit became a “product liability action,” free of independent negligence claims against Builder and Plumber. ¶31 While a manufacturer’s indemnity duty is triggered by the plaintiff’s pleadings, the exception to the duty is not. The exception only applies if the manufacturer proves that the seller’s independent conduct caused the plain-tiff’s injuries. The statute requires a manufac-turer to indemnify an innocent seller for certain damages and litigation expenses arising out of a product liability action but requires the seller to bear the damages and expenses they cause. See Meritor, 44 S.W.3d at 88; Fitzgerald, 996 S.W.2d at 867. While we do not expressly adopt the Texas Supreme Court’s decision with respect to what “product liability action” means, we do find Meritor persuasive in determining when the indemnification exception is invoked. The Meri-tor court rejected the manufacturer’s argument that it should be permitted to establish the exception to the indemnity duty through the plaintiff’s pleadings. 44 S.W.3d at 91. The Texas Supreme Court held that the “statute’s plain language indicates that the plaintiff’s pleadings are not sufficient to invoke the exception” and that “while the manufacturer’s duty to indem-nify the seller is invoked by the plaintiff’s pleadings and joinder of the seller as defen-dant, the exception to that duty is established by a finding that the seller’s independent con-duct was the cause of the plaintiff’s injury.” Id. ¶32 The allegations made in Plaintiff’s peti-tions were insufficient to invoke the exception under § 832.1. Plaintiff abandoned his claims against Builder and Plumber based on negli-gence in his Second Amended Petition. Prior to trial, Plaintiff and Gastite settled the underly- 512 The Oklahoma Bar Journal Vol. 83 — No. 7 — 3/3/2012 ing lawsuit, and Plaintiff dismissed all claims against all Defendants. The case concluded without a determination that Builder or Plumb-er’s independent conduct caused the fire. Sec-tion 832.1.E.1. suggests the Legislature antici-pated situations when the parties settle the product liability action. Sellers are entitled to indemnity regardless of “the manner in which the action is concluded.” 12 O.S. § 832.1.E.1. In this summary judgment appeal, the record does not contain evidence that either Builder or Plumber’s independent negligence caused Plaintiff’s injury. We hold that the exception does not apply and affirm the trial court’s order with regard to that issue. § 832.1 AND BOOKER v. SEARS ROEBUCK & CO. ¶33 Gastite asks this court to reconcile 12 O.S. § 832.1 and Booker v. Sears Roebuck & Co., 1989 OK 156, 785 P.2d 297. The decision in Booker was based on the manufacturer’s com-mon law duty to indemnify a seller for attor-ney fees and costs.15 By enacting § 832.1, the Legislature established the manufacturer’s statutory duty to indemnify a seller for attor-ney fees and costs. Booker was decided in 1989, and § 832.1 was enacted in 2004. To the extent Gastite relies on Booker and § 832.1 modifies Booker, the statute controls.16 REASONABLENESS OF ATTORNEY FEES ¶34 A trial court’s award of attorney fees is reviewed for abuse of discretion. Spencer v. Okla. Gas & Elec. Co., 2007 OK 76, ¶13, 171 P.3d 890, 895. An abuse of discretion occurs when a decision is based on an erroneous conclusion of law or where there is no rational basis in evi-dence for the ruling. Id. Generally, the correct formula for calculating a reasonable fee is to: 1) determine the lodestar fee by multiplying the attorney’s hourly rate by the hours expended; and 2) modify the fee through consideration of the Burk factors.17 Id., ¶¶13-14, 171 P.3d at 895. ¶35 Builder and Plumber incurred signifi-cant attorney fees and costs while defending Plaintiff’s product liability action and Gastite’s cross-claims. Gastite asks this court to deter-mine whether the trial court abused its discre-tion by using an attorney’s hourly rate for del-egable work, permitting fees for duplicate effort, allowing vague time entries and block billing, and including unnecessary expert wit-ness fees in the award. After reviewing the evidence in the record, we are not persuaded that the trial court abused its discretion.18 ¶36 However, the trial court included in its award attorney fees, costs, and expenses gener-ated between March 27, 2007 and May 30, 2007, when the case was not a product liability action. It was an abuse of discretion to award attorney fees, costs, and expenses for that period of time. Therefore, we reverse and remand the case for the limited purpose of cal-culating and awarding attorney fees, costs, and expenses generated between May 31, 2007 and the conclusion of the indemnification proceed-ings. 19 Attorney fees, costs, and expenses incurred prior to May 31, 2007 should be excluded from the trial court’s calculation. ¶37 AFFIRMED IN PART, REVERSED IN PART AND REMANDED. MITCHELL, P.J., and JOPLIN, J., concur. 1. Hughes Electric, Inc. was also named as a Defendant, but Hughes is not a party to this appeal. 2. Strict products liability is commonly referred to as Manufactur-ers’ Products Liability in Oklahoma. See Kirkland v. Gen. Motors Corp., 1974 OK 52, ¶20, 521 P.2d 1353, 1361. 3. Gastite asks this court to determine (1) whether Builder was a “seller” as contemplated by 12 O.S. § 832.1; (2) when a “product liabil-ity action” was asserted against Builder and Plumber, triggering Gas-tite’s duty to indemnify; (3) whether the exception to the duty to indemnify is invoked by the plaintiff’s pleadings or a manufacturer must prove the seller’s independent negligence in order to invoke the exception; and (4) whether the trial court’s order erred ruling 12 O.S. § 832.1 overruled the Oklahoma Supreme Court’s decision in Booker v. Sears Roebuck & Co., 1989 OK 156, 785 P.2d 297. 4. However, Gastite attached to its motion a letter, dated February 6, 2009, in which Gastite stated: “Effective immediately [Gastite] agrees to defend, indemnify and hold harmless GADA Builders based upon [Gastite’s] statutory obligation set forth in 12 O.S. § 832.1 (requiring a manufacturer of a product to indemnify a seller of its product for dam-ages caused by the manufacturer’s product).” 5. Builder also noted that it was a distributor of the CSST because it purchased CSST by paying Plumber for the CSST and paying Plumber to install it in Plaintiff’s house. Builder argued it was a dis-tributor because it was involved in the stream of commerce connecting the CSST to Plaintiff, the ultimate consumer. Builder also noted that the court’s interpretation of § 832.1 was needed to determine if Builder was a retail seller. 6. Each member of the distributive chain is liable if they sold the defective product that injured the plaintiff and if the product left the seller’s control in a defective condition. See Kirkland v. Gen. Motors Corp., 1974 OK 52, ¶21, 521 P.2d 1353, 1361; Restatement 2d of Torts § 402A(1)(b) (1965). The manufacturer, retailer, wholesaler, and dis-tributor each owes “a separate and nondelegable duty to market a safe product.” Braden v. Don Hendricks, 1985 OK 14, ¶19, 695 P.2d 1343. 7. See Meritor Automotive, Inc. v. Ruan Leasing Co., 44 S.W.3d 86 (Tex. 2001) (citing Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 867 (Tex. 1999)) (“In Fitzgerald, we concluded that pleadings join-ing a seller as defendant in a products liability action were sufficient to invoke the manufacturer’s indemnity duty under the Act.”). 8. “The duty to indemnify under this section . . . [a]pplies without regard to the manner in which the action is concluded . . .” 12 O.S. § 832.1.E.1. 9. See 12 O.S. § 832.1.F.: “A seller eligible for indemnification under this section shall give reasonable notice to the manufacturer of a prod-uct claimed in a petition or complaint to be defective, unless the manufac-turer has been served as a party or otherwise has actual notice of the action.” (emphasis added). 10. “A seller is entitled to recover from the manufacturer court costs and other reasonable expenses, reasonable attorney fees, and any reasonable damages incurred by the seller to enforce the seller’s right to indemnification under this section.” 12 O.S. § 832.1.G. 11. A liability insurance policy generally contains two basic duties: the insurer has a duty to defend its insured and a duty to indemnify its Vol. 83 — No. 7 — 3/3/2012 The Oklahoma Bar Journal 513 insured for damages. First Bank of Turley v. Fidelity & Deposit Ins. Co. of Maryland, 1996 OK 105, ¶13, 928 P.2d 298, 302. The duty to defend is separate from, and broader than, the duty to indemnify, but the insurer’s obligation is not unlimited. Id., ¶13 at 303. The duty to defend is measured by the nature and kinds of risks covered by the policy as well as by the reasonable expectations of the insured. Id. An insurer has a duty to defend an insured whenever it ascertains the presence of facts that give rise to the potential of liability under the policy. Id. “The insurer’s defense duty is determined on the basis of information gleaned from the petition (and other pleadings), from the insured and from other sources available to the insurer at the time the defense is demanded (or tendered) rather than by the outcome of the third-party action.” Id., ¶13 at 303-04. After the insurer receives notice of a third party’s claim against the insured, it must determine whether a poten-tial for coverage exists under the policy. Id., ¶14 at 304. 12. If the insurer owes the insured a duty to defend under the insurance contract and the insurer refuses to defend, the insurer is liable “for all reasonable expenses incurred by an insured in defense of the third-party action.” Id., ¶17 at 304. 13. TEX. CIV. PRAC. & REM. CODE § 82.002 (West): (a) A manufacturer shall indemnify and hold harmless a seller against loss arising out of a products liability action, except for any loss caused by the seller’s negligence, intentional misconduct, or other act or omission, such as negligently modifying or altering the product, for which the seller is independently liable. (b) For purposes of this section, “loss” includes court costs and other reasonable expenses, reasonable attorney fees, and any reasonable damages. (c) Damages awarded by the trier of fact shall, on final judgment, be deemed reasonable for purposes of this section. (d) For purposes of this section, a wholesale distributor or retail seller who completely or partially assembles a product in accor-dance with the manufacturer’s instructions shall be considered a seller. (e) The duty to indemnify under this section: (1) applies without regard to the manner in which the action is concluded; and (2) is in addition to any duty to indemnify established by law, contract, or otherwise. (f) A seller eligible for indemnification under this section shall give reasonable notice to the manufacturer of a product claimed in a petition or complaint to be defective, unless the manufac-turer has been served as a party or otherwise has actual notice of the action. (g) A seller is entitled to recover from the manufacturer court costs and other reasonable expenses, reasonable attorney fees, and any reasonable damages incurred by the seller to enforce the seller’s right to indemnification under this section. 14. Recently, the Texas Supreme Court returned to the products liability indemnity statute in Toyota Industrial Equip. Mfg. v. Carruth- Doggett, Inc., 325 S.W.3d 683 (2010). The outcome in this case also aligns with that in Toyota. The plaintiff’s negligence claim against the seller in Toyota was based on a defective product and the court held: [I]t is still clear from [the plaintiff’s] pleadings that the basis of the claims against [the Manufacturer were] that the [product] was defective and caused his injury. His second amended peti-tion alleges specific products liability claims against [the Manu-facturer] regarding specific defective components, and it alleges that [the Seller] was negligent in maintaining the [product] and in “failing to use . . . due care to test and/or inspect [the product] or the component parts in question.” . . . Because [the plaintiff] alleges that a defect in the [product] manufactured by the Manu-facturer caused him harm, his pleadings implicate the indemnity provision in Section 82.002 covering “loss arising out of a prod-ucts liability action.” Toyota, 325 S.W.3d at 690-91. 15. “Oklahoma has previously recognized that a manufacturer may be found to have a duty to indemnify its dealer against claims for loss caused by the manufacturer’s defective product. Booker, 785 P.2d at 298 (citing Braden v. Hendricks, 1985 OK 14, 695 P.2d 1343). “Reason-able attorney fees have been allowed, as part of damages, to an indem-nitee so long as the fees were incurred in defense of the claim indemni-fied against.” Id. at 298-99 (citing United Gen. Ins. v. Crane Carrier Co., 1984 OK 47, 695 P.2d 1334). “However, indemnification of legal costs is not permissible where an adverse position has been taken by the claimant against the party from whom indemnity is sought. This is due to the necessity of a benefit being conferred on the indemnitor before the law will impose an obligation.” Id. at 299 (citing Berry v. Barbour, 1955 OK 358, 279 P.2d 335). 16. “The duty to indemnify under this section . . . [i]s in addition to any duty to indemnify established by law, contract, or otherwise.” 12 O.S. § 832.1.E.2. 17. The factors set out in Burk v. Oklahoma City, 1979 OK 115, ¶8, 598 P.2d 659, 661, are: time and labor required; novelty and difficulty of the questions; skill requisite to perform the legal service; preclusion of other employment; customary fee; whether the fee is fixed or contin-gent; time limitations; amount involved and results obtained; experi-ence, reputation and ability of the attorneys involved; risk of recovery; nature and length of relationship with the client; and awards in similar causes. 18. Builder requested $242,494.18 and was awarded $242,494.18. Plumber requested $152,500.00 and was awarded $152,500.00. At the October 27, 2010 hearing on attorney fees, Gastite stipulated that coun-sel for Builder and Plumber accurately recorded their time and worked the hours listed on their billing records. 19. “A seller is entitled to recover from the manufacturer court costs and other reasonable expenses, reasonable attorney fees, and any reasonable damages incurred by the seller to enforce the seller’s right to indemnification under this section.” 12 O.S. Supp.2004 § 832.1.G. 2012 OK CIV APP 12 CLIFTON GENTRY, Petitioner, vs. BERRY MACHINE & TOOL CO., INC. and THE WORKERS’ COMPENSATION COURT, Respondents. Case No. 109,513. January 11, 2012 PROCEEDING TO REVIEW AN ORDER OF THE WORKERS’ COMPENSATION COURT HONORABLE GENE PRIGMORE, TRIAL JUDGE SUSTAINED Richard A. Bell, Heather A. Lehman, THE BELL LAW FIRM, Norman, Oklahoma, for Petitioner Donald A. Bullard, BULLARD & ASSOCI-ATES, P.C., Oklahoma City, Oklahoma, for Respondents KEITH RAP, JUDGE: ¶1 Claimant, Clifton Gentry, appeals an Order of the workers’ compensation court denying his request to commute a portion of his permanent total disability award to a lump-sum payment pursuant to Title 85 O.S.2001, § 41(B). BACKGROUND ¶2 Claimant sustained an injury to his back, tailbone, both hips, and both legs on December 8, 2004, when a co-worker pulled a chair from under Claimant while he was at work for Employer, Berry Machine & Tool Co., Inc. Claimant was relegated to a wheelchair due to his physical injuries. ¶3 Claimant filed a Form 3 on January 21, 2005, alleging the single event injury. Claimant subsequently amended the Form 3, addition- 514 The Oklahoma Bar Journal Vol. 83 — No. 7 — 3/3/2012 ally alleging psychological overlay and sexual dysfunction. ¶4 By various orders, the workers’ compen-sation court awarded Claimant home renova-tions, a memory foam bed, a carport, and suit-able transportation commensurate with his physical abilities. ¶5 The workers’ compensation trial court entered an Order, filed on January 18, 2011, finding Claimant sustained a work-related injury to his left shoulder and back, sexual dys-function, and psychological overlay. The court found Employer paid Claimant temporary total disability benefits from February 16, 2005, to November 16, 2010. The court further found Claimant permanently and totally disabled and that “it would not be practical to require the claimant to participate in vocational re-training services.” The workers’ compensation court found Claimant’s rate of permanent total disability was $210.00 a week, which allowed for an accrued portion of his award at the time of the Order of $1,764.92. The court also award-ed continuing medical treatment and attendant home care. ¶6 On March 3, 2011, Claimant filed a Form 13, motion to commute pursuant to Title 85 O.S.2001, § 41(B). The workers’ compensation court entered an Order, filed on May 11, 2011, denying Claimant’s request to commute a por-tion of his permanent total disability award to a lump-sum amount. ¶7 Claimant appeals. STANDARD OF REVIEW ¶8 This appeal involves a question of statu-tory interpretation, which presents a question of law. Samman v. Multiple Injury Trust Fund, 2001 OK 71, ¶ 8, 33 P.3d 302, 305. This Court reviews a question of law de novo. Id. The appel-late court has the plenary, independent, and non-deferential authority to reexamine a trial court’s legal rulings. K & H Well Serv., Inc. v. Tcina, Inc., 2002 OK 62, ¶ 9, 51 P.3d 1219, 1223. ANALYSIS ¶9 The issue presented on appeal is whether the workers’ compensation trial court erred in applying Title 85 O.S.2001, § 41(B) rather than Section 41(A) and, therefore, denying Claim-ant’s request to commute a portion of his per-manent total disability award. Claimant argues the workers’ compensation court incorrectly applied Section 41(B), which precludes the commutation of a permanent total disability award, and should have allowed Claimant to commute his permanent total disability award pursuant to Section 41(A). ¶10 These two subsections of Section 41 are in direct conflict concerning whether a claimant is entitled to have an award of permanent total disability commuted to a lump-sum payment. Section 41(A) appears to allow the workers’ compensation court to commute a permanent total disability award, while Section 41(B) spe-cifically prohibits the permanent total disability award to be commuted. ¶11 Section 41(A) provides: A. Awards for permanent partial disability under Section 22 of this title shall be made for the total number of weeks of compensa-tion which the Court shall find the claim-ant will be entitled to receive, less any sums previously paid which the Court may find to be a proper credit thereon. When the award becomes final, the whole sum or any unpaid portion thereof shall operate as a final adjudicated obligation and payment thereof may be enforced by the claimant or in case of his death, by the surviving ben-eficiary entitled to the proceeds as provid-ed in Section 48 of this title. All awards shall be paid by periodic installments as determined by the Court. Whenever an injured person receives an award for permanent partial disability, permanent total disability or death benefits, the injured employee or claim-ant, for good cause shown, may have the award commuted to a lump-sum payment by permis-sion of the Court. This authorization for commutation shall not be applicable to attorney fees in permanent total disability cases. The lump-sum payment shall not exceed Four Thousand Dollars ($4,000.00) or twenty-five percent (25%) of the total award, whichever is the larger sum. (Emphasis added.) In contrast, Section 41(B) specifically precludes commutation of a permanent total disability award: B. Awards for permanent total disability shall be made by the Court under Section 22 of this title. The Court shall make a determination that the claimant will be entitled to receive the weekly income ben-efits provided in this title as long as his permanent total disability continues to exist. When an award for total permanent Vol. 83 — No. 7 — 3/3/2012 The Oklahoma Bar Journal 515 disability becomes final, the accrued por-tion thereof shall operate as a final adjudi-cated obligation and payment thereof may be enforced by the claimant. In proceed-ings to enforce claims for total permanent disability, the compensation under the pro-visions of the Workers’ Compensation Act shall be payable periodically and shall be so provided in any award made thereon. Total permanent disability awards shall not be commuted to a lump-sum payment. (Empha-sis added.) ¶12 The Oklahoma Court of Civil Appeals has addressed the issue of whether a perma-nent total disability award may be commuted and has reached different conclusions. In Cun-ningham v. Rupp Drilling, Inc., 1989 OK CIV AP 77, 783 P.2d 985, the Court of Civil Appeals held that a permanent total disability award may be commuted to a lump-sum payment pursuant to Section 41(A). The Court found that a careful reading of the statute revealed that the subsections were not in conflict, but could be harmonized. The Court distinguished between the different procedural phases men-tioned in Section 41(A) — the hearing resulting in an award of benefits — and Section 41(B) —proceedings to enforce claims. Id. at ¶ 4, 783 P.2d at 986. The Court determined that, under Section 41(A), the workers’ compensation trial court had the discretion to commute a part of the award to a lump sum at the time the origi-nal award was made, if the claimant could show good cause. Id. at ¶ 8, 783 P.2d at 986. ¶13 The Court of Civil Appeals reached a dif-ferent result in Rea v. Big Chief Drilling Co., 1983 OK CIV AP 61, 673 P.2d 515. The Court recog-nized the conflict between Subsections (A) and (B) and held that the conflict could not be har-monized. Applying rules of statutory construc-tion, the Court concluded that “[i]n the absence of legislative intent to the contrary, we find that the specific prohibition on commutation found in 85 O.S. 1981 § 41(B), concerning awards for permanent total disability must control over the discretion to allow such awards in subsec-tion 41(A) concerning awards for permanent partial disability.” Id. at ¶ 18, 673 P.2d at 519. ¶14 The Legislature recently enacted legisla-tion changing the wording of Section 41(A) and (B) and resolving the conflict between the two subsections. Title 85 O.S.2011, § 345 [previ-ously Section 41(A) and (B)] now provides: A. Awards for permanent partial impair-ment shall be made for the total number of weeks of compensation which the Work-ers’ Compensation Court shall find the claimant will be entitled to receive, less any sums previously paid which the Court may find to be a proper credit thereon. When the award becomes final, the whole sum or any unpaid portion thereof shall operate as a final adjudicated obligation and payment thereof may be enforced by the claimant or in case of the claimant’s death, by the sur-viving beneficiary entitled to the proceeds as provided in Section 49 of this act. All awards shall be paid by periodic install-ments as determined by the Court. When-ever an injured person receives an award for permanent partial impairment, the injured employee or claimant, for good cause shown, may have the award commuted to a lump-sum payment by permission of the Court. The lump-sum payment shall not exceed twen-ty- five percent (25%) of the total award. The balance of the total award shall be paid in periodic installments. B. Awards for permanent total disability shall entitle the claimant to receive weekly income benefits for the period prescribed in Section 36 of this act. When an award for permanent total disability becomes final, the accrued portion thereof shall operate as a final adjudicated obligation and payment thereof may be enforced by the claimant or in case of the claimant’s death, by the sur-viving beneficiary entitled to the proceeds as provided in Section 49 of this act. Perma-nent total disability awards shall not be com-muted to a lump-sum payment. (Emphasis added.) ¶15 Generally, this Court may examine a subsequent amendment to a statute to ascer-tain the meaning of the prior statute. Quail Creek Golf and Country Club v. Oklahoma Tax Comm’n, 1996 OK 35, ¶ 10, 913 P.2d 302, 304. When the Legislature amends a statute it may be changing the existing law or clarifying the law. American Airlines v. Hickman, 2007 OK 59, ¶ 11, 164 P.3d 146, 149. The Oklahoma Supreme Court in Samman v. Multiple Injury Trust Fund, 2001 OK 71, ¶ 13, 33 P.3d 302, 307 (citations omitted) explained: The exact intent is ascertained by looking to the circumstances surrounding the amend-ment. If the earlier version of a statute defi-nitely expresses a clear and unambiguous 516 The Oklahoma Bar Journal Vol. 83 — No. 7 — 3/3/2012 intent or has been judicially interpreted, a legislative amendment is presumed to change the existing law. Nonetheless, if the earlier statute’s meaning is in doubt or uncertain, a presumption arises that the amendment is designed to clarify, i.e., more clearly convey, legislative intent which was left indefinite by the earlier statute’s text. In determining the legislative intent, the courts may properly consider whether the stat-ute before amendment was clear or ambigu-ous. Board of Educ., Vici Public Schools, Indep. School Dist. No. I-5, Dewey County v. Morris, 1982 OK 142, ¶ 9, 656 P.2d 258, 261. “A subsequent statute clarifying a prior statute can be used to determine the meaning of the prior statute even if the interpretation affects alleged vested rights.” Quail Creek Golf and Country Club v. Oklahoma Tax Comm’n, 1996 OK 35 at ¶ 10, 913 P.2d at 304. ¶16 Here, the previous language of Section 41(A) and (B) concerning whether a permanent total disability award could be commuted to a lump-sum payment was ambiguous and had not been judicially determined by the Oklaho-ma Supreme Court. The Oklahoma Court of Civil Appeals had reached different conclu-sions regarding the propriety of commutation under Section 41. The Legislature’s amend-ment of the statute, 85 O.S.2011 § 345, clarified the legislative intent of the previous subsec-tions and provides guidance to this Court in interpreting the statute. ¶17 This Court finds the workers’ compensa-tion trial court did not err in denying Claim-ant’s request to commute a portion of his per-manent total disability award. The workers’ compensation court’s Order is sustained. ¶18 SUSTAINED. GOODMAN, P.J., and THORNBRUGH, J., concur. 2012 OK CIV APP 10 IN RE THE MARRIAGE OF: JOAN PLUM-LEE, Petitioner/Appellee, vs. PHILLIP PLUMLEE, Respondent/Appellant. Case No. 107,922. December 30, 2011 APEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE DONALD L. DEASON, TRIAL JUDGE AFFIRMED Joan M. Blood (f/k/a Plumlee), Jefferson City, Missouri, Pro Se Jay F. McCown, Tamra A. Spradlin, QUICK, MCCOWN & SPRADLIN, Oklahoma City, Oklahoma, for Respondent/Appellant JOHN F. FISCHER, VICE-CHIEF JUDGE: ¶1 Phillip Plumlee (Father), appeals the dis-trict court’s order granting Joan Plumlee’s (Mother), motion to dismiss his objection to her notice of relocation of their child. Father’s objection was filed out of time. Therefore, the district court did not err in granting Mother’s motion and we affirm. BACKGROUND ¶2 On August 8, 2008, the district court granted the parties a divorce and awarded Mother custody of their minor child. On August 20, 2008, Mother filed her first notice of reloca-tion and mailed a copy to Father pursuant to 43 O.S.2011 § 112.3.1 The district court sustained Father’s timely objection after a hearing con-ducted on October 8, 2008. On April 10, 2009, Mother mailed a second notice of relocation, properly addressed to Father, by certified mail. After a second attempt to deliver the letter on April 17, 2009, the United States Postal Service (USPS) returned the letter to Mother marked “Refused.” Mother filed a third notice on June 14, 2009, notifying Father that she was delay-ing the date of her move by approximately one month. After a second delivery attempt on June 15, 2009, the USPS returned this certified letter, also marked “Refused,” to Mother. ¶3 Mother relocated in July. On August 4, 2009, Father filed an objection to Mother’s relo-cation. He also sought a permanent order pre-venting Mother’s relocation or in the alternative, modification of custody to award him primary custody. Mother filed a motion to dismiss Father’s objection, and following a hearing on August 20, 2009, the district court granted Mother’s motion and dismissed Father’s objec-tion to Mother’s relocation. Father appeals.2 STANDARD OF REVIEW ¶4 This appeal requires review of the district court’s application of 43 O.S.2011 § 112.3. “A legal question involving statutory interpretation is subject to de novo review, i.e., a non-deferen-tial, plenary and independent review of the trial court’s legal ruling.” Heffron v. Dist. Ct. of Okla. County, 2003 OK 75, ¶ 15, 77 P.3d 1069, 1076 (cit- Vol. 83 — No. 7 — 3/3/2012 The Oklahoma Bar Journal 517 ing Samman v. Multiple Injury Trust Fund, 2001 OK 71, ¶ 8, n.5, 33 P.3d 302, 305 n.5). ANALYSIS ¶5 Father argues that the district court erred in permitting Mother to relocate. This argu-ment takes two forms. First, Father argues that his objection was timely and, therefore, the district court was required by section 112.3 to hold an evidentiary hearing. Second, he con-tends that the district court’s denial of Mother’s first attempt to relocate is determinative of her second notice based on the doctrine of claim preclusion. ¶6 Two statutes govern the relocation of a minor child by a custodial parent. Mahmoodjan-loo v. Mahmoodjanloo, 2007 OK 32, ¶ 2, 160 P.3d 951, 952. The first statute provides: A parent entitled to the custody of a child has a right to change his residence, subject to the power of the district court to restrain a removal which would prejudice the rights or welfare of the child. 10 O.S.2001 § 19 (renumbered as 43 O.S.2011 § 112.2A). The second, 43 O.S. 2011 § 112.3, provides in pertinent part: B. 1. Except as otherwise provided by this section, a person who has the right to establish the principal residence of the child shall notify every other person enti-tled to visitation with the child of a pro-posed relocation of the child’s principal residence as required by this section. . . . . C. 1. Except as provided by this section, notice of a proposed relocation of the prin-cipal residence of a child or notice of an intended change of the primary residence address of an adult must be given: a. by mail to the last-known address of the person to be notified, . . . . G. 1. The person entitled to custody of a child may relocate the principal residence of a child after providing notice as provid-ed by this section unless a parent entitled to notice files a proceeding seeking a tem-porary or permanent order to prevent the relocation within thirty (30) days after receipt of the notice. . . . . 2. A parent entitled by court order or writ-ten agreement to visitation with a child may file a proceeding objecting to a pro-posed relocation of the principal residence of a child and seek a temporary or perma-nent order to prevent the relocation. . . . . 4. A proceeding filed pursuant to this subsec-tion must be filed within thirty (30) days of receipt of notice of a proposed relocation. . . . . K. The relocating person has the burden of proof that the proposed relocation is made in good faith. If that burden of proof is met, the burden shifts to the nonrelocating per-son to show that the proposed relocation is not in the best interest of the child. ¶7 The first statute gives the custodial parent a “presumptive right” to relocate. Kaiser v. Kai-ser, 2001 OK 30, ¶ 18, 23 P.3d 278, 282. The second statute requires notice of intent to relo-cate and provides for a hearing procedure if the non-custodial parent objects to relocation. Other than in Harrison v. Morgan, 2008 OK CIV AP 68, ¶ 15, 191 P.3d 617, 621 (holding that section 112.3 did not repeal 10 O.S.2011 § 19), there has been no effort to construe the effect of or to reconcile the two statutes. See Mahmood-janloo, 2007 OK 32, ¶ 12, 160 P.3d at 955 (declin-ing to resolve the issue of potential conflict because it had not been addressed by the trial court). And, it is unnecessary to do so in this case, except to the extent that we find a parent’s right to relocate a child provided in section 112.2A is limited by the notice and hearing requirements of section 112.3, if the child is to be moved more than seventy-five miles from the child’s principal residence for a period of time exceeding sixty days. See Galarza v. Galar-za, 2010 OK CIV AP 19, ¶ 13, 231 P.3d 694, 698. It is necessary, however, to decide whether Mother’s certified mailing satisfies the notice provision of section 112.3.3 ¶8 Section 112.3 does not specifically require certified mail, as used by Mother in this case, nor does it address how the requirement of notification may be satisfied beyond the speci-fication that notice must be given “by mail to the last-known address of the person to be notified.” Section112.3 (C)(1)(a). The most stringent form of notice required in this State is for service of process. Title 12 O.S. Supp. 518 The Oklahoma Bar Journal Vol. 83 — No. 7 — 3/3/2012 2009 § 2004(C)(2) authorizes service by mail and provides, in part: a. At the election of the plaintiff, a sum-mons and petition may be served by mail. . . . Service by mail shall be effective on the date of receipt or if refused, on the date of refusal of the summons and petition by the defendant. b. Service by mail shall be accomplished by mailing a copy of the summons and peti-tion by certified mail, return receipt request-ed and delivery restricted to the addressee. . . . ¶9 Because of the fundamental family and due process issues involved in relocating a child, we find that a party required to satisfy the notifica-tion by mail provision of section 112.3 must meet the requirements of section 2004(C)(2) of the Oklahoma Pleading Code. See In re Adoption of D.T.H., 1980 OK 119, ¶ 19, 615 P.2d 287, 290 (holding that a parent’s right “to the care, cus-tody, companionship and management of his or her child is a fundamental right protected by the federal and state constitutions”)(overruled on other grounds); In re C.S., 1978 OK 94, ¶ 12, 580 P.2d 983, 985 (“The fundamental nature of parental rights requires that the full panoply of procedural safeguards must be applied to child deprivation hearings.”). Although this is not a termination proceeding, relocation may sub-stantially affect Father’s visitation with his child. ¶10 Father argues Mother’s mailing was insufficient for two reasons. First, he contends that Mother was required by the parties’ divorce decree to use email. Second, he argues that, even if mailing were permitted, he was not provided the notice prior to relocation required by section 112.3, because he claims he did not personally receive the mailing sent by Mother. I. Father’s Email Argument ¶11 We find Father’s argument that Mother was required by the parties’ divorce decree to communicate her notice of relocation by email unpersuasive and disingenuous. First, absent a finding of unconstitutionality, courts are required to apply and enforce clear and unam-biguous legislative enactments like the mailing requirement of section 112.3. See In re City of Durant, 2002 OK 52, ¶ 13, 50 P.3d 218, 221. ¶12 Second, the provision in the divorce decree Father relies on is not, as Father argues, conclusive on the issue. That provision states that “the parties shall further use e-mail as the primary mode of communication unless the particular circumstances of the need for com-munication make use of e-mail unreasonable or impracticable.” (Emphasis added). Here, the particular circumstances and the directives of section 112.3 required a form of communica-tion other than email. Further, the divorce decree cannot be construed in a manner that would excuse compliance with mandatory statutory requirements. “[T]he general rule is that nothing may be read into a statute which was not within the manifest intention of the legislature as gathered from the language of the act.” Stemmons, Inc. v. Universal C.I.T. Credit Corp., 1956 OK 221 ¶ 19, 301 P.2d 212, 216. ¶13 Finally, this Court notes that the divorce decree specifically addresses this issue, a fact not called to our attention by Father or his counsel, even though that fact is included in findings by the district court set forth in the order from which Father appeals. Exhibit C to the divorce decree addresses relocation by either party after November 1, 2008. Those pro-visions state that relocation is governed by sec-tion 112.3 and further provide: “The relocating party shall mail (or serve in the manner pro-vided for service of summons)” any notice of intent to relocate. This is consistent with our conclu
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Okla Agency Code | '677' |
Title | Oklahoma bar journal, 03/03/2012, v.83 no.7 |
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Publication Date | 2012-03-03 |
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Full text | Volume 83 u No. 7 u March 3, 2012 490 The Oklahoma Bar Journal Vol. 83 — No. 7 — 3/3/2012 LAWYERS HELPING LAWYERS ASSISTANCE PROGRAM You are not alone. Men Helping Men Oklahoma City • April 5, 2012 Time - 5:30-7 p.m. Location The Oil Center – West Building 2601 NW Expressway, Suite 108W Oklahoma City, OK 73112 Tulsa • March 22, 2011 Time - 5:30-7 p.m. Location The University of Tulsa College of Law 3120 East 4th Place, JRH 205 Tulsa, OK 74104 Women Helping Women Oklahoma City • March 8, 2012 Time - 5:30-7 p.m. Location The Oil Center – West Building 2601 NW Expressway, Suite 108W Oklahoma City, OK 73112 Tulsa • April 5, 2012 Time - 5:30-7 p.m. Location The University of Tulsa College of Law 3120 East 4th Place, JRH 205 Tulsa, OK 74104 Food and drink will be provided! Meetings are free and open to OBA members. Reservations are preferred (we want to have enough space and food for all.) For further information and to reserve your spot, please e-mail kimreber@cabainc.com. 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Go online to my.okbar.org/Login and sign in. Click on “Roster Info” and switch to electronic to receive court issues. Vol. 83 — No. 7 — 3/3/2012 The Oklahoma Bar Journal 493 contents March 3, 2012 • Vol. 83 • No. 7 Oklahoma Bar Association page table of 491 Events Calendar 494 Index to Court Opinions 495 Supreme Court Opinions 506 Court of Civil Appeals Opinions 531 Disposition of Cases Other Than by Publication 494 The Oklahoma Bar Journal Vol. 83 — No. 7 — 3/3/2012 Index To Opinions Of Supreme Court 2012 OK 16 RE: Suspension of Certificates of Certified Shorthand Reporters. No. SCAD- 2012-5.................................................................................................................................................... 4 9 5 2012 OK 14 DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, Plaintiff/ Appellee, v. THERON MATTHEWS, Defendant/Appellant, and CHRISTINA A. MATTHEWS; JOHN DOE; JANE DOE; AVB f/k/a ARKANSAS VALLEY STATE BANK; and CHASE BANK USA, N.A., Additional Defendants. No. 108,427........................... 4 9 5 2012 OK 15 DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, Plaintiff/ Appellee, v. CORY L. RICHARDSON, Defendant/Appellant, and ERNESTINE RICHARDSON A/K/A ERNESTINE V. RICHARDSON, JOHN DOE, JANE DOE, ARGENT MORTGAGE COMPANY, LLC, CITIFINANCIAL SERVICES, INC., Defen-dants. No. 109,999............................................................................................................................... 5 0 0 Index To Orders of Court of Civil Appeals 2012 OK CIV AP 11 DON HONEYWELL, Plaintiff, vs. GADA BUILDERS, INC., LARRY BRANNON PLUMBING & MECHANICAL, INC., and HUGHES ELECTRIC, INC., Defendants, and LARRY BRANNON PLUMBING & MECHANICAL, INC., and GADA BUILDERS, INC., Third-Party Plaintiffs/Appellees, vs. GASTITE, a division of TITE-FLEX, a foreign corporation, Third-Party Defendant/Appellant. Case No. 109,277................ 5 0 6 2012 OK CIV AP 12 CLIFTON GENTRY, Petitioner, vs. BERRY MACHINE & TOOL CO., INC. and THE WORKERS’ COMPENSATION COURT, Respondents. Case No. 109,513................................................................................................................................................... 5 1 3 2012 OK CIV AP 10 IN RE THE MARRIAGE OF: JOAN PLUMLEE, Petitioner/Appel-lee, vs. PHILLIP PLUMLEE, Respondent/Appellant. Case No. 107,922.................................... 5 1 6 2012 OK CIV AP 14 NOEHMI RODRIGUEZ and JESUS MUNIZ, Plaintiffs/Appellees, vs. MARIA GUTIERREZ-PEREZ, Defendant, and EQUITY INSURANCE COMPANY, Garnishee/Appellant. Case No. 108,952.......................................................................................... 5 2 1 2012 OK CIV AP 13 NORTHWEST ROOFING SUPLY, INC., an Oklahoma corporation, Plaintiff/Appellee, vs. ELEGANCE IN WOOD, LLC; ELTON RHOADES, JR. and MALISSA M. RHOADES, Husband and Wife; and KEVIN JONES, Defendants/ Appellants. Case No. 107,676............................................................................................................. 5 2 3 Vol. 83 — No. 7 — 3/3/2012 The Oklahoma Bar Journal 495 2012 OK 16 RE: Suspension of Certificates of Certified Shorthand Reporters. No. SCAD-2012-5. February 27, 2012 ORDER Pursuant to Rules 20(b) and 23(d), the State Board of Examiners of Certified Shorthand Reporters submitted the names of certified shorthand reporters who have failed to pay the 2012 annual certificate renewal fee and/or to report the 2011 continuing education, as listed in the attached Exhibit, and recommended the suspension of each reporter’s certificate by order of this Court. THEREFORE, IT IS HEREBY ORDERED that the certificate of each of the certified shorthand reporters listed on the attached Exhibit is and shall remain suspended for failure to pay the 2012 annual certificate renewal fee and/or to comply with the continuing education require-ments for calendar year 2011 until further order of this Court. DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE this 27th day of February, 2012. /s/ Steven W. Taylor CHIEF JUSTICE ALL JUSTICES CONCUR. EXHIBIT TO ORDER No. SCAD-2012-5 Rules 2 (b) and 23(d) of the State Board of Examiners of Certified Shorthand Reporters, 20 O.S.2011, ch. 20, app. 1, require certified shorthand reporters, on or before February 15th of each year, to pay the annual certificate renewal fee authorized by 20 O.S.2011, § 1506 and to report the continuing education required by 20 O.S.2011, § 1503.1 and operate to suspend the certificates of reporters, effective February 16th of each year, who do not timely pay and/ or report. The following persons have failed to pay the annual certificate renewal fee for calendar year 2012. 1. Charyse Carmine Crawford, CSR #973 2. Lisa Ann Cromley, CSR #1840 3. Marjorie L. Miller, CSR #299 4. Joseph L. Welch, CSR #398 5. Cynthia Williams, CSR #1682 The following persons have failed to com-plete and report continuing education for cal-endar year 2011: 1. Charyse Carmine Crawford, CSR #973 2. Lisa Ann Cromley, CSR #1840 3. Joseph L. Welch, CSR #398 4. Cynthia Williams, CSR #1682 2012 OK 14 DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, Plaintiff/ Appellee, v. THERON MATTHEWS, Defendant/Appellant, and CHRISTINA A. MATTHEWS; JOHN DOE; JANE DOE; AVB f/k/a ARKANSAS VALLEY STATE BANK; and CHASE BANK USA, N.A., Additional Defendants. No. 108,427. February 28, 2012 ON APPEAL FROM THE DISTRICT COURT OF CREEK COUNTY HONORABLE LAWRENCE W. PARISH DISTRICT JUDGE ¶0 Appeal of a partial summary judgment granted in Deutsche Bank National Trust Com-pany’s favor against the Matthewses on August 20, 2009, memorialized by minute order. A Par-tial Journal Entry of Judgment was filed on May 26, 2010. The Matthews appeal this sum-mary judgment arguing Deutsche Bank Nation-al Trust Company as Trustee for J.P. Morgan Mortgage Acquisition Trust 2007-CH3 failed to demonstrate standing. REVERSED AND REMANDED WITH INSTRUCTIONS Supreme Court Opinions Manner and Form of Opinions in the Appellate Courts; See Rule 1.200, Rules — Okla. Sup. Ct. R., 12 O.S. Supp. 1996 (1997 T. 12 Special Supplement) 496 The Oklahoma Bar Journal Vol. 83 — No. 7 — 3/3/2012 Theron T. Matthews, Pro Se, Mounds, Oklaho-ma, for Defendant/Appellant. Sally E. Garrison, BAER, TIMBERLAKE, COULSON & CATES, P.C., Oklahoma City, Oklahoma, for Plaintiff/Appellee. COMBS, J. FACTUAL AND PROCEDURAL HISTORY ¶1 In a petition filed on January 14, 2009, Deutsche Bank National Trust company, as Trustee for J.P. Morgan Mortgage Acquisition Trust 2007-CH3 (hereinafter Deutsche Bank) filed a foreclosure action against Theron Mat-thews (Matthews). Deutsche Bank claimed at that time to hold the note and mortgage. Deutsche Bank claims the note and mortgage were indorsed in blank. However from the face of the note attached to the Petition, no such indorsement is found. Chase Bank USA, N.A., was the original lender. Deutsche Bank, filed on June 18, 2009, a document entitled “Assign-ment of Real Estate Mortgage,” dated June 9, 2009, with the County Clerk of Creek County. This was some six months after the filing of the foreclosure proceeding. A partial summary judgment granted in Deutsche Bank’s favor against the Matthews on August 20, 2009, was memorialized by minute order. A Partial Jour-nal Entry of Judgment was filed on May 26, 2010. The Matthewses appeal this summary judgment arguing Deutsche Bank failed to demonstrate standing. STANDARD OF REVIEW ¶2 An appeal on summary judgment comes to this court as a de novo review. Carmichael v. Beller, 1996 OK 48, ¶2, 914 P.2d 1051, 1053. All inferences and conclusions are to be drawn from the underlying facts contained in the record and are to be considered in the light most favorable to the party opposing the summary judgment. Rose v. Sapulpa Rural Water Co., 1981 OK 85, 621 P.2d 752. Summary judgment is improper if, under the evidentiary materials, reasonable indi-viduals could reach different factual conclu-sions. Gaines v. Comanche County Medical Hospi-tal, 2006 OK 39, ¶4, 143 P.3d 203, 205. ANALYSIS ¶3 Appellant argues Appellee does not have standing to bring this foreclosure action. The note attached to Deutsche Bank’s motion for summary judgment, filed June 25, 2009, con-tained two allonges. These were not included with the note that was attached to its petition filed on January 14, 2009. Both allonges are dated January 9, 2007. The first allonge is a special indorsement made by the lender, Chase Bank USA, N.A., and is payable to Chase Home Finance, LLC. It is signed by A. Young, assistant secretary. The second allonge is a blank indorsement, made by Chase Home Finance, LLC, and is also signed by A. Young, assistant secretary. Deutsche Bank states in its motion for summary judgment that it brings this action in its capacity as the holder and owner of the note and mortgage at issue. How-ever, in the same paragraph Deutsche Bank states it acquired Chase Bank USA, N.A.’s interest in the note and mortgage subsequent to the filing of this action. Deutsche Bank also attached an affidavit by an officer of Chase Home Finance, LLC, executed May 6, 2009. The officer merely states Deutsche Bank is the cur-rent holder of the note and mortgage. ¶4 The crux of the entire issue presented to this Court is the issue of standing. This Court has previously held: Standing, as a jurisdictional question, may be correctly raised at any level of the judi-cial process or by the Court on its own motion. This Court has consistently held that standing to raise issues in a proceed-ing must be predicated on interest that is “direct, immediate and substantial.” Stand-ing determines whether the person is the proper party to request adjudication of a certain issue and does not decide the issue itself. The key element is whether the party whose standing is challenged has sufficient interest or stake in the outcome. Matter of the Estate of Doan, 1986 OK 15, ¶7, 727 P.2d 574, 576. In Hendrick v. Walters, 1993 OK 162, ¶ 4, 865 P.2d 1232, 1234, this Court also held: Respondent challenges Petitioner’s stand-ing to bring the tendered issue. Standing refers to a person’s legal right to seek relief in a judicial forum. It may be raised as an issue at any stage of the judicial process by any party or by the court sua sponte. (emphasis original) Furthermore, in Fent v. Contingency Review Board, 2007 OK 27, footnote 19, 163 P.3d 512, 519, this Court stated “[s]tanding may be raised at any stage of the judicial process or by the court on its own motion.” Additionally in Fent, this Court stated: Vol. 83 — No. 7 — 3/3/2012 The Oklahoma Bar Journal 497 Standing refers to a person’s legal right to seek relief in a judicial forum. The three threshold criteria of standing are (1) a legally protected interest which must have been injured in fact- i.e., suffered an injury which is actual, concrete and not conjec-tural in nature, (2) a causal nexus between the injury and the complained-of conduct, and (3) a likelihood, as opposed to mere speculation, that the injury is capable of being redressed by a favorable court deci-sion. The doctrine of standing ensures a party has a personal stake in the outcome of a case and the parties are truly adverse. Fent v. Contingency Review Board, 2007 OK 27, ¶7, 163 P.3d 512, 519-520. In essence, a plaintiff who has not suffered an injury attributable to the defendant lacks standing to bring a suit. And, thus, “standing [must] be determined as of the commencement of suit.” Lujan v. Defend-ers of Wildlife, 504 U.S. 555, 570, n.5, 112 S.Ct. 2130, 2142, 119 L.Ed. 351 (1992).1 ¶5 To commence a foreclosure action in Okla-homa, a plaintiff must demonstrate it has a right to enforce the note and, absent a showing of ownership, the plaintiff lacks standing. Gill v. First Nat. Bank & Trust Co. of Oklahoma City, 1945 OK 181, 159 P.2d 717.2 An Assignment of the mortgage, however, is of no consequence because under Oklahoma law, “[p]roof of own-ership of the note carried with it ownership of the mortgage security.” Engle v. Federal Nat. Mortg. Ass’n, 1956 OK 176, ¶7, 300 P.2d 997, 999. Therefore, in Oklahoma it is not possible to bifurcate the security interest from the note. BAC Home Loans Servicing, L.P. v. White, 2011 OK CIV APP 35, ¶ 10, 256 P.3d 1014, 1017. Because the note is a negotiable instrument, it is subject to the requirements of the UCC. Thus, a foreclosing entity has the burden of proving it is a “person entitled to enforce an instrument” by showing it was “(i) the holder of the instrument, (ii) a nonholder in posses-sion of the instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled to enforce the instru-ment pursuant to Section 12A-3-309 or subsec-tion (d) of Section 12A-3-418 of this title.” 12A O.S. 2001, § 3-301. ¶6 The note, in which the Matthews prom-ised to pay a sum certain to the order of Lender, is a negotiable instrument pursuant to 12A O.S. 2001 §3-104(a). It may be indorsed specially to be payable to an identified person or it may be indorsed in blank to be payable to bearer. 12A O.S. 2001, § 3-205(a) and (b)3. ¶7 To show you are the “holder” of the note you must prove you are in possession of the note and the note is either “payable to bearer” (blank indorsement) or to an identified person that is the person in possession (special indorse-ment). 4 Therefore, both possession of the note and an indorsement on the note or attached allonge are required in order for one to be a “holder” of the note. ¶8 To be a “nonholder in possession who has the rights of a holder” you must be in posses-sion of a note that has not been indorsed either by special indorsement or blank indorsement. Basically, no negotiation has occurred because the person now in possession did not become a holder by lack of the note being indorsed as mentioned. Negotiation is the voluntary or involuntary transfer of an instrument by a per-son other than the issuer to a person who thereby becomes its holder. 12A O.S. 2001, § 3- 201. Transfer occurs when the instrument is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument. 12A O.S. 2001, § 3-203. Delivery of the note would still have to occur even though there is no nego-tiation. Delivery is defined as the voluntary transfer of possession. 12A O.S. 2001, § 1- 201(b)(15). The transferee would then be vested with any right of the transferor to enforce the note. 12A O.S. 2001, § 3-203(b). Some jurisdic-tions have held without holder status and therefore the presumption of a right to enforce, the possessor of the note must demonstrate both the fact of the delivery and the purpose of the delivery of the note to the transferee in order to qualify as the person entitled to enforce. In re Veal, 450 B.R. 897, 912 (B.A.P. 9th Cir. 2011). This would include showing the note was transferred for the purpose of giving to the person receiving delivery the right to enforce the instrument. 12A O.S. 2001, § 3-203. ¶9 Here, Deutsche Bank is trying to show it is a “holder” of the note and not that it is a “nonholder in possession who has the rights of a holder.” If Deutsche was trying to establish it was a “nonholder in possession who has the rights of a holder” an Assignment of Real Estate Mortgage, like the one attached to its motion for summary judgment and which also expressly purports to transfer the note, might be evidence of the purpose of a transfer if pos-session of the note was established. However, 498 The Oklahoma Bar Journal Vol. 83 — No. 7 — 3/3/2012 the Assignment of Real Estate Mortgage attached to its motion for summary judgment is executed on June 9, 2009, by a Vice President of Chase Bank USA, N.A. The note attached to its motion for summary judgment, however, shows an allonge from Chase Bank USA, N.A., to Chase Home Finance, LLC. Further, this purported transfer of the note occurred six months after the action was commenced. Deutsche Bank also by its own admission states it acquired its interest in the note and mortgage subsequent to the filing of this action. ¶10 A plaintiff must show it became a “per-son entitled to enforce” the note prior to the filing of the foreclosure proceeding. There is no evidence showing Deutsche Bank was a person entitled to enforce the note prior to the filing of the foreclosure proceeding. In fact, by its own admission it acquired its interest subsequent to the filing of the action. Therefore, we reverse the granting of summary judgment by the trial court with instructions to dismiss the case without prejudice. CONCLUSION ¶11 It is a fundamental precept of the law to expect a foreclosing party to actually be in pos-session of its claimed interest in the note, and have the proper supporting documentation in hand when filing suit, showing the history of the note, so the defendant is duly apprised of the rights of the plaintiff. This may be accom-plished by demonstrating the party is a holder of the instrument or a nonholder in possession of the instrument who has the rights of a hold-er, or a person not in possession of the instru-ment who is entitled to enforce the instrument pursuant to 12A O.S. 2001, § 3-309, or 12A O.S. 2001, § 3-418. Likewise, for the homeowners, absent adjudication on the underlying indebt-edness, the dismissal cannot cancel their obli-gation arising from an authenticated note, or insulate them from foreclosure proceedings based on proven delinquency. See, U.S. Bank National Association v. Kimball, 27 A.3d 1087, 75 UCC Rep.Serv.2d 100, 2011 VT 81 (VT 2011); and Indymac Bank, F.S.B. v. Yano-Horoski, 78 A.D.3d 895, 912 N.Y.S.2d 239 (2010). REVERSED AND REMANDED WITH INSTRUCTIONS ¶12 CONCUR: TAYLOR (This Court’s deci-sion in no way releases or exonerates the debt owed by the defendants on this home.), C.J., KAUGER (joins Taylor, J.), WATT, EDMOND-SON, REIF, COMBS, JJ. ¶13 DISSENT: WINCHESTER (joins Gur-ich, J.), GURICH (by separate writing), JJ. ¶14 RECUSED: COLBERT, V.C.J. 1. The dissenting opinion in this matter relies upon Justice Opala’s concurring opinion in Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, 890 P.2d 906, for the proposition that standing is not a jurisdic-tional question. Justice Opala’s concurring opinion was not the major-ity opinion of this Court and as such “a minority opinion has no bind-ing, precedential value.” 20 Am.Jur. 2d Courts §138. 2. This opinion occurred prior to the enactment of the UCC. It is, however, possible for the owner of the note not to be the person enti-tled to enforce the note if the owner is not in possession of the note. (See the REPORT OF THE PERMANENT EDITORIAL BOARD FOR THE UNIFORM COMMERCIAL CODE, APPLICATION OF THE UNI-FORM COMMERCIAL CODE TO SELECTED ISSUES RELATING TO MORTGAGE NOTES (NOVEMBER 14, 2011)). 3. 12A O.S.2001 §3-205(a) and (b) provide: (a) If an indorsement is made by the holder of an instrument, whether payable to an identified person or payable to bearer, and the indorse-ment identifies a person to whom it makes the instrument payable, it is a “special indorsement”. When specially indorsed, an instrument becomes payable to the identified person and may be negotiated only by the indorsement of that person. The principles stated in Section 12A-3-110 of this title apply to special indorsements. (b) If an indorsement is made by the holder of an instrument and it is not a special indorsement, it is a “blank indorsement”. When indorsed in blank, an instrument becomes payable to bearer and may be negoti-ated by transfer of possession alone until specially indorsed. 4. 12A O.S. 2001, §§ 1-201(b)(21), 3-204 and 3-205. GURICH, J., with whom WINCHESTER, J. joins, dissenting: ¶1 I respectfully dissent. The majority states that “[t]o commence a foreclosure action in Oklahoma, a plaintiff must demonstrate it has a right to enforce the note, and absent a show-ing of ownership, the plaintiff lacks standing,” citing Gill v. First Nat. Bank & Trust Co., 1945 OK 181, 159 P.2d 717.1 See Majority Op. ¶ 5. I agree that in any foreclosure action a party must demonstrate it is the proper party to request adjudication of the issues. However, the issue of whether a party is the proper party to request adjudication of the issues is a real-party- in-interest issue, not an issue of “stand-ing,” as the majority frames it. See Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, 890 P.2d 906 (Opala, J., concurring). Justice Opala framed the issue correctly in Toxic Waste Impact Group: Standing in the federal legal system is imbued with a constitutional/jurisdiction-al dimension, while in the body of state law it fits under the rubric of ordinary procedure. The U.S. Constitution, Article III, has long been held to require that a “case” or “con-troversy” is essential to invoke federal judicial jurisdiction and that a person’s competence to bring an action is a core Vol. 83 — No. 7 — 3/3/2012 The Oklahoma Bar Journal 499 component of standing in a case-or-contro-versy inquiry. It is for this reason that standing is an integral part of the mecha-nism for invoking the federal judiciary’s power. Oklahoma’s fundamental law places no restraint on the judiciary’s power analo-gous to the federal case-or-controversy requirement. Under the earlier Code of Civil Procedure the suit had to be brought by the real party in interest. That require-ment has always been non-jurisdictional. If a state court proceeded to adjudicate a claim pressed by one not in that status, its decision was not fraught with jurisdiction-al infirmity but rather regarded as errone-ous for want of proof to establish an impor-tant element of the claim. An error in this category is waivable at the option of the defendant; and, if not asserted on appeal, the reviewing court may reach the merits of the case despite a plaintiff’s apparent lack of standing at nisi prius. Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, 890 P.2d 906 (Opala, J., concur-ring, ¶¶ 2-3) (emphasis added). ¶2 The majority in this case cites Hendrick v. Walters, 1993 OK 162, ¶ 4, 865 P.2d 1232, 1234 and Fent v. Contingency Review Board, 2007 OK 27, n.19, 163 P.3d 512, 519 for the proposi-tion that “standing may be raised at any stage of the judicial process or by the court on its own motion.” See Majority Op. ¶ 4. Those cases cite Matter of the Estate of Doan, 1986 OK 15, ¶ 7, 7272 P.2d 574, as authority for this proposition. Arguably, however, Doan mis-states the law: Ever since the Code of Civil Procedure was replaced in 1984 by the Pleading Code, our nomenclature for identifying the party entitled to sue, which began to follow that of federal jurisprudence, has used “stand-ing” as if it were a functional equivalent of the earlier procedural terms of art — real party in interest, one with appealable inter-est, one occupying the aggrieved-party or pecuniary-interest status. It was during this transition that one of our opinions inadvertently referred to “standing” in terms of a jurisdictional requirement, thus creating the misimpression that the term has a jurisdictional dimension. Oklahoma’s constitution has no case-or-controversy clause. Standing is hence to be viewed as an adjective-law concept. The inadvertent reference to the contrary should be treated as ineffective to alter standing’s true char-acter in the body of our procedural law. . . . . I concur in today’s opinion and in the dis-position of the cause. If I were writing for the court, I would additionally declare that Doan’s inadvertent reference to federal law is to be viewed as withdrawn. Lujan’s tri-partite standing test, which we adopt today, must be treated as having been received sans its federal jurisdictional baggage. See Toxic Waste Impact Group, 1994 OK 148 (Opala, J., concurring ¶ 4). ¶3 Additionally, both Hendrick and Fent were original actions in this Court. As such, “standing” could have been raised at any point by this Court sua sponte. However, in a pro-ceeding in District Court, because it is a non-jurisdictional issue, failure to assert that the Plaintiff is not the real party in interest may be waived. See Liddell v. Heavner, 2008 OK 6, n.5, 180 P.3d 1191 (Opala, J., majority Op.); see also 12 O.S. 2012 § 2008(D). ¶4 In this case, the facts demonstrate that the Defendant argued below that Plaintiff did not have a stake in the foreclosure and was not the real party in interest. As such, the issue was properly appealed. However, the facts also demonstrate that the Plaintiff was in fact the real party in interest and was the proper party to pursue the foreclosure. 12 O.S. 2012 § 2017. As such, I would affirm the trial court. ¶5 The majority also holds that a foreclosing party must have the “proper supporting docu-mentation in hand when filing suit.” See Majority Op. ¶ 10 (emphasis added). Oklahoma plead-ing procedure does not require a plaintiff to have all evidence necessary to prevail on its claim at the time of the filing. Rather, what is required is a “short and plain statement of the claim showing that the pleader is entitled to relief.” 12 O.S. 2012 § 2008(A) (1). Additionally, 12 O.S.2012 § 2011(B) (3) provides that an attor-ney filing anything with the court certifies that to “the best of the person’s knowledge, infor-mation and belief, formed after an inquiry reasonable under the circumstances . . . the allegations and other factual contentions have evidentiary support or, if specifically so identi-fied, are likely to have evidentiary support after a reasonable opportunity for further investigation or 500 The Oklahoma Bar Journal Vol. 83 — No. 7 — 3/3/2012 discovery.” 12 O.S. 2012 § 2011(B)(3) (emphasis added).2 ¶6 Mortgage foreclosures, like other civil actions, allow the parties to continue to inves-tigate and discover evidence up until the time of judgment. In this case, the Plaintiff contin-ued to investigate its claim up until the time of summary judgment. At the time of summary judgment it offered sufficient proof to the trial court that it had the right to foreclose on the mortgage.3 ¶7 Plaintiff satisfied its burden of proof, the Defendant failed to file any response, and the trial court was correct in sustaining the motion and granting judgment to the Plaintiff. On appeal where no evidence indicates otherwise, there is a presumption that the judgment of the trial court conforms to the proof present at the trial. Gilkes v. Gilkes, 1964 OK 28, 389 P.2d 503. I cannot agree with the majority’s holding that the plaintiff must have the “proper supporting documentation in hand when filing suit” because no authority states such and the Okla-homa pleading code requires otherwise. The procedure imposed by the majority in this case, will result in delay, will not affect the inevitable outcome of foreclosure, and will increase the homeowner’s debt.4 1. In Gill, the plaintiff brought an action to foreclose a mortgage on real property. There was no discussion in the case of whether the plain-tiff had standing to bring the action or whether the plaintiff was the real party in interest. In fact, the case was tried to the Court, and the appeal turned on the sufficiency of evidence presented at trial. The Gill decision stands for the proposition that the assignment of the note carries with it an assignment of the mortgage. It is not relevant to the standing analysis, nor does it stand for the proposition that the plaintiff must prove at the time of filing that it has a right to enforce the note. 2. Likewise, while I agree that the UCC applies in this case because the note is a negotiable instrument, the UCC does not require that a foreclosing entity prove at the time of filing that it is the person entitled to enforce the instrument. 3. Rule 13 of the Rules for District Courts permits a party to file evidentiary material with a motion for summary judgment. The Rule sets out a procedure for challenging affidavits that are attached to the motion. In this case, the Plaintiff included an affidavit of an officer, verifying that Plaintiff was the holder of the mortgage and the Note in question, and no challenge was made to that affidavit. Further, the Plaintiff presented a copy of the endorsed Note as an exhibit to its Motion for Summary Judgment. Defendant/Appellant failed to chal-lenge the authenticity of the original document and pursuant to 12 O.S. § 3003 and 12A O.S. §3-308(a), a copy is admissible. 4. Rather than dismiss the petition, on remand, the trial court may allow the Plaintiff to amend its petition. HSBC Bank USA v. Lyon, 2012 OK 10, ¶ 1, __ P.3d __. 2012 OK 15 DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, Plaintiff/ Appellee, v. CORY L. RICHARDSON, Defendant/Appellant, and ERNESTINE RICHARDSON A/K/A ERNESTINE V. RICHARDSON, JOHN DOE, JANE DOE, ARGENT MORTGAGE COMPANY, LLC, CITIFINANCIAL SERVICES, INC., Defendants. No. 109,999. February 28, 2012 ON APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY HONORABLE DANIEL OWENS, DISTRICT JUDGE ¶0 Appeal of a summary judgment granted to Deutsche Bank National Trust Company, as trustee, against Cory L. Richardson on June 13, 2011. This Court retained the matter on Sep-tember 19, 2011. Richardson appeals the grant-ing of Summary Judgment asserting Deutsche Bank National Trust Company, as trustee, did not have standing to bring the action. REVERSED AND REMANDED WITH INSTRUCTIONS Steve A. Heath, Matthew Hudspeth, BAER, TIMBERLAKE, COULSON & CATES, P.C., Tulsa, Oklahoma, for Plaintiff/Appellee Jon H. Patterson, BRADLEY ARANT BOULT CUMMINGS LLP, Birmingham Alabama, for Plaintiff/Appellee. Steven W. Crow, Daniel Delluomo, DELLUO-MO & CROW, Oklahoma City, Oklahoma, for Defendant/Appellants. COMBS, J. FACTUAL AND PROCEDURAL HISTORY ¶1 In a petition filed on October 15, 2010, Deutsche Bank National Trust Company, as trustee, (hereinafter Deutsche Bank), alleging to be the “present holder” of the note and mortgage, initiated a foreclosure action against Cory L. Richardson (hereinafter Richardson). A review of the note, filed as an exhibit to the Motion for Summary Judgment, filed May 26, 2011, reveals an undated blank indorsement. This blank indorsement was filed with the lower court for the first time in the Motion for Summary Judgment. Nowhere in the original petition did Deutsche Bank reference the undated blank indorsement. ¶2 WMC Mortgage Corporation (hereinafter WMC) was the original lender. Deutsche Bank filed with the County Clerk of Oklahoma County, a document entitled “Assignment of Real Estate Mortgage” on February 22, 2011. This document, which was dated February 15, 2011, claimed the assignment to be effective as Vol. 83 — No. 7 — 3/3/2012 The Oklahoma Bar Journal 501 of December 28, 2010. This was four months after the filing of the petition to foreclose.1 Additionally, this Assignment of Mortgage executed by Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for WMC and its successors and assigns, purportedly trans-ferred the grantor’s interest to Deutsche Bank as the trustee of WMC and was signed by a Vice President of MERS, Inc. There was only a mini-mal reference to the “note, debts and claims thereby secured. . .” in this assignment of mort-gage. A summary judgment was granted in Deustche Bank’s favor against Richardson, dated July 1, 2011, signed by the trial judge on September 19, 2011, and filed on September 21, 2011. All were memorialized by a final journal entry of judgment order. Richardson appealed this summary judgment asserting Deutsche Bank failed to demonstrate standing. STANDARD OF REVIEW ¶3 An appeal on summary judgment comes to this court as a de novo review. Carmichael v. Beller, 1996 OK 48, ¶2, 914 P.2d 1051, 1053. All infer-ences and conclusions are to be drawn from the underlying facts contained in the record and are to be considered in the light most favorable to the party opposing the summary judgment. Rose v. Sapulpa Rural Water Co., 1981 OK 85, 621 P.2d 752. Summary judgment is improper if, under the evidentiary materials, reasonable individu-als could reach different factual conclusions. Gaines v. Comanche County Medical Hospital, 2006 OK 39, ¶4, 143 P.3d 203, 205. ANALYSIS ¶4 Appellant argues Appellee does not have standing to bring this foreclosure action. Although Appellee has argued it holds the note, the record demonstrates conflicting evi-dence as to when Appellee became entitled to enforce the note. Appellee has presented evi-dence of an indorsement in blank, not at the time of filing the original petition (October 15, 2010), but attached as an exhibit to the motion for summary judgment filed May 26, 2011. The purported “assignment of mortgage” was filed on February 15, 2011, claiming to be effective December 28, 2010, four months after the filing of the original petition to foreclose. ¶5 The issue presented to this Court is stand-ing. This Court has previously held: Standing, as a jurisdictional question, may be correctly raised at any level of the judi-cial process or by the Court on its own motion. This Court has consistently held that standing to raise issues in a proceed-ing must be predicated on interest that is “direct, immediate and substantial.” Stand-ing determines whether the person is the proper party to request adjudication of a certain issue and does not decide the issue itself. The key element is whether the party whose standing is challenged has sufficient interest or stake in the outcome. Matter of the Estate of Doan, 1986 OK 15, ¶7, 727 P.2d 574, 576. In Hendrick v. Walters, 1993 OK 162, ¶ 4, 865 P.2d 1232, 1234, this Court also held: Respondent challenges Petitioner’s stand-ing to bring the tendered issue. Standing refers to a person’s legal right to seek relief in a judicial forum. It may be raised as an issue at any stage of the judicial process by any party or by the court sua sponte. (emphasis original) Furthermore, in Fent v. Contingency Review Board, 2007 OK 27, footnote 19, 163 P.3d 512, 519, this Court stated “[s]tanding may be raised at any stage of the judicial process or by the court on its own motion.” Additionally in Fent, this Court stated: Standing refers to a person’s legal right to seek relief in a judicial forum. The three threshold criteria of standing are (1) a legally protected interest which must have been injured in fact- i.e., suffered an injury which is actual, concrete and not conjec-tural in nature, (2) a causal nexus between the injury and the complained-of conduct, and (3) a likelihood, as opposed to mere speculation, that the injury is capable of being redressed by a favorable court deci-sion. The doctrine of standing ensures a party has a personal stake in the outcome of a case and the parties are truly adverse. Fent v. Contingency Review Board, 2007 OK 27, ¶7, 163 P.3d 512, 519-520. In essence, a plaintiff who has not suffered an injury attributable to the defendant lacks standing to bring a suit. And, thus, “standing [must] be determined as of the commencement of suit; . . .” Lujan v. Defenders of Wildlife, 504 U.S. 555, 570, n.5, 112 S.Ct. 2130, 2142, 119 L.Ed. 351 (1992).2 ¶6 To commence a foreclosure action in Okla-homa, a plaintiff must demonstrate it has a right to enforce the note and, absent a showing of ownership, the plaintiff lacks standing. Gill v. First Nat. Bank & Trust Co. of Oklahoma City, 1945 502 The Oklahoma Bar Journal Vol. 83 — No. 7 — 3/3/2012 OK 181, 159 P.2d 717.3 An assignment of the mortgage, however, is of no consequence because under Oklahoma law, “[p]roof of ownership of the note carried with it ownership of the mort-gage security.” Engle v. Federal Nat. Mortg. Ass’n, 1956 OK 176, ¶7, 300 P.2d 997, 999. Therefore, in Oklahoma it is not possible to bifurcate the secu-rity interest from the note. BAC Home Loans Ser-vicing, L.P. v. White, 2011 OK CIV APP 35, ¶ 10, 256 P.3d 1014, 1017. Because the note is a nego-tiable instrument, it is subject to the require-ments of the UCC. A foreclosing entity has the burden of proving it is a “person entitled to enforce an instrument” by showing it was “(i) the holder of the instrument, (ii) a nonholder in possession of the instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to Section 12A-3-309 or subsection (d) of Section 12A-3-418 of this title.” 12A O.S. 2001 §3-301. ¶7 To demonstrate you are the “holder” of the note you must establish you are in posses-sion of the note and the note is either “payable to bearer” (blank indorsement) or to an identi-fied person that is the person in possession (special indorsement).4 Therefore, both posses-sion of the note and an indorsement on the note or attached allonge5 are required in order for one to be a “holder” of the note. ¶8 To be a “nonholder in possession who has the rights of a holder” you must be in posses-sion of a note that has not been indorsed either by special indorsement or blank indorsement. Negotiation is the voluntary or involuntary transfer of an instrument by a person other than the issuer to a person who thereby becomes its holder. 12A O.S. 2001, § 3-201. Transfer occurs when the instrument is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument. 12A O.S. 2001, § 3-203. Delivery of the note would still have to occur even though there is no negotiation. Delivery is defined as the voluntary transfer of possession. 12A O.S. 2001, § 1-201(b)(15). The transferee would then be vested with any right of the transferor to enforce the note. 12A O.S. 2001, 3-203(b). Some jurisdictions have held that without holder status and therefore the presumption of a right to enforce, the pos-sessor of the note must demonstrate both the fact of the delivery and the purpose of the delivery of the note to the transferee in order to qualify as the person entitled to enforce. In re Veal, 450 B.R. 897, 912 (B.A.P. 9th Cir. 2011). See also, 12A O.S. 2001, § 3-203. ¶9 In the present case, Appellee has present-ed evidence in support of the motion for sum-mary judgment of an indorsed-in-blank note, and an “Assignment of Mortgage” both argu-ably obtained after the filing of the petition. Appellee must prove it is the holder of the note or the nonholder in possession who has the rights of a holder prior to the filing of the fore-closure proceeding. In the present matter the timeliness of the transfer is a disputed fact issue. Since Deutsche Bank did not file the blank indorsement until it filed its motion for summary judgment it is impossible to deter-mine from the record when Deutsche Bank acquired its interest in the underlying note. ¶10 The assignment of a mortgage is not the same as an assignment of the note. If a person is trying to establish they are a nonholder in possession who has the rights of a holder, they must bear the burden of establishing their sta-tus as a nonholder in possession with the rights of a holder. Appellee must establish delivery of the note as well as the purpose of that delivery. In the present case, it appears Appellee is try-ing to use the assignment of mortgage in order to establish the purpose of delivery. The assign-ment of mortgage purports to transfer “For value received, the undersigned, Mortgage Electronic Registration Systems, Inc., as nomi-nee for WMC and its successors and assigns does hereby assign, transfer and set over unto Deutsche Bank National Trust Company, as Trustee of MASTR 2007-02, that certain real estate mortgage dated August 3, 2006, granted by Cory L. Richardson and Ernestine Richard-son, a/k/a Ernestine V. Richardson, husband and wife “together with the note, debts and claims thereby secured, covering the following described real estate. . .” We do not address the issue of whether MERS, as nominee of WMC had the authority to assign the note in question as the date of the assignment is well after the filing of the petition. ¶11 Appellee must show it became a “person entitled to enforce” prior to the filing of the foreclosure proceeding. There is a question of fact as to when and if this occurred, and thus summary judgment is not appropriate. There-fore, we reverse the granting of summary judg-ment by the trial court and remand back for further determinations. If it is determined Deutsche Bank became a person entitled to enforce the note as either a holder or nonholder Vol. 83 — No. 7 — 3/3/2012 The Oklahoma Bar Journal 503 in possession who has the rights of a holder after the foreclosure action was filed, then the case may be dismissed without prejudice and the action may be re-filed in the name of the proper party. CONCLUSION ¶12 It is a fundamental precept of the law to expect a foreclosing party to actually be in pos-session of its claimed interest in the note, and to have the proper supporting documentation in hand when filing suit, showing the history of the note, so that the defendant is duly apprised of the rights of the plaintiff. This is accomplished by showing the party is a holder of the instrument or a nonholder in possession of the instrument who has the rights of a hold-er, or a person not in possession of the instru-ment who is entitled to enforce the instrument pursuant to 12A O.S. 2001, § 3-309 or 12A O.S. 2001, § 3-418. Likewise, for the homeowners, absent adjudication on the underlying indebted-ness, the dismissal cannot cancel their obligation arising from an authenticated note, or insulate them from foreclosure proceedings based on proven delinquency and therefore, this Court’s decision in no way releases or exonerates the debt owed by the defendants on this home. See, U.S. Bank National Association v. Kimball 27 A.3d 1087, 75 UCC Rep.Serv.2d 100, 2011 VT 81 (VT 2011); and Indymac Bank, F.S.B. v. Yano-Horoski, 78 A.D.3d 895, 912 N.Y.S.2d 239 (2010). REVERSED AND REMANDED WITH INSTRUCTIONS ¶13 CONCUR: TAYLOR, C.J., KAUGER, WATT, EDMONDSON, REIF, COMBS, JJ. ¶14 CONCUR IN PART; DISSENT IN PART: GURICH (by separate writing), WIN-CHESTER (joins Gurich, J.), JJ. ¶15 RECUSED: COLBERT, V.C.J. 1. Appellee filed an amended petition on January 28, 2011, which added additional defendants but made no change in the allegations as between the Appellant and Appellee. 2. The concurring in part; dissenting in part opinion in this matter relies upon Justice Opala’s concurring opinion in Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, 890 P.2d 906, for the proposition that standing is not a jurisdictional question. Justice Opala’s concurring opinion was not the majority opinion of this Court and as such “a minority opinion has no binding, precedential value.” 20 Am.Jur. 2d Courts §138. 3. This opinion was rendered prior to the enactment of the UCC. It is, however, possible for the owner of the note not to be the person entitled to enforce the note if the owner is not in possession of the note. (See the REPORT OF THE PERMANENT EDITORIAL BOARD FOR THE UNIFORM COMMERCIAL CODE, APPLICATION OF THE UNI-FORM COMMERCIAL CODE TO SELECTED ISSUES RELATING TO MORTGAGE NOTES (NOVEMBER 14, 2011)). 4. 12A O.S. 2001, §§ 1-201(b)(21), 3-204 and 3-205. 5. According to Black’s Law Dictionary (9th ed. 2009) an allonge is “[a] slip of paper sometimes attached to a negotiable instrument for the purpose of receiving further indorsements when the original paper is filled with indorsements.” See, 12A O.S. 2001, § 3-204(a). GURICH, J., with whom WINCHESTER, J. joins, concurring in part and dissenting in part: ¶1 I concur that there are fact issues present and summary judgment, under the evidentiary materials, is improper in this case.1 ¶2 However, I respectfully dissent to the majority’s statement that “[t]o commence a foreclosure action in Oklahoma, a plaintiff must demonstrate it has a right to enforce the note, and absent a showing of ownership, the plaintiff lacks standing.” See Majority Op. ¶ 5. Gill v. First Nat. Bank & Trust Co., 1945 OK 181, 159 P.2d 717.2 I agree that in any foreclosure action a party must demonstrate it is the prop-er party to request adjudication of the issues. However, the issue of whether a party is the proper party to request adjudication of the issues is a real-party-in-interest issue, not an issue of “standing,” as the majority frames it. See Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, 890 P.2d 906 (Opala, J., concur-ring). Justice Opala framed the issue correctly in Toxic Waste Impact Group: Standing in the federal legal system is imbued with a constitutional/jurisdiction-al dimension, while in the body of state law it fits under the rubric of ordinary procedure. The U.S. Constitution, Article III, has long been held to require that a “case” or “con-troversy” is essential to invoke federal judicial jurisdiction and that a person’s competence to bring an action is a core component of standing in a case-or-contro-versy inquiry. It is for this reason that standing is an integral part of the mecha-nism for invoking the federal judiciary’s power. Oklahoma’s fundamental law places no restraint on the judiciary’s power analo-gous to the federal case-or-controversy requirement. Under the earlier Code of Civil Procedure the suit had to be brought by the real party in interest. That require-ment has always been non-jurisdictional. If a state court proceeded to adjudicate a claim pressed by one not in that status, its decision was not fraught with jurisdiction-al infirmity but rather regarded as errone-ous for want of proof to establish an impor-tant element of the claim. An error in this category is waivable at the option of the defendant; and, if not asserted on appeal, 504 The Oklahoma Bar Journal Vol. 83 — No. 7 — 3/3/2012 the reviewing court may reach the merits of the case despite a plaintiff’s apparent lack of standing at nisi prius. Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, 890 P.2d 906 (Opala, J., concur-ring, ¶¶ 2-3) (emphasis added). ¶3 The majority in this case cites Hendrick v. Walters, 1993 OK 162, ¶ 4, 865 P.2d 1232, 1234 and Fent v. Contingency Review Board, 2007 OK 27, n.19, 163 P.3d 512, 519 for the proposition that “standing may be raised at any stage of the judicial process or by the court on its own motion.” See Majority Op. ¶ 4. Those cases cite Matter of the Estate of Doan, 1986 OK 15, ¶ 7, 727 P.2d 574, as authority for this proposition. Arguably, however, Doan misstates the law: Ever since the Code of Civil Procedure was replaced in 1984 by the Pleading Code, our nomenclature for identifying the party entitled to sue, which began to follow that of federal jurisprudence, has used “stand-ing” as if it were a functional equivalent of the earlier procedural terms of art — real party in interest, one with appealable inter-est, one occupying the aggrieved-party or pecuniary-interest status. It was during this transition that one of our opinions inadvertently referred to “standing” in terms of a jurisdictional requirement, thus creating the misimpression that the term has a jurisdictional dimension. Oklahoma’s constitution has no case-or-controversy clause. Standing is hence to be viewed as an adjective-law concept. The inadvertent reference to the contrary should be treated as ineffective to alter standing’s true char-acter in the body of our procedural law. . . . . I concur in today’s opinion and in the dis-position of the cause. If I were writing for the court, I would additionally declare that Doan’s inadvertent reference to federal law is to be viewed as withdrawn. Lujan’s tri-partite standing test, which we adopt today, must be treated as having been received sans its federal jurisdictional baggage. See Toxic Waste Impact Group, 1994 OK 148 (Opala, J., concurring ¶ 4). ¶4 Additionally, both Hendrick and Fent were original actions in this Court. As such, “standing” could have been raised at any point by this Court sua sponte. However, in a pro-ceeding in District Court, because it is a non-jurisdictional issue, failure to assert that the Plaintiff is not the real party in interest may be waived. See Liddell v. Heavner, 2008 OK 6, n.5, 180 P.3d 1191 (Opala, J., majority Op.); see also 12 O.S. 2012 § 2008(D). ¶5 In this case, the facts demonstrate that Defendant raised this issue in the Answer as well as in the Response to Motion for Summary Judgment. As such, the issue was properly appealed. ¶6 The majority also holds that a foreclosing party must have the “proper supporting docu-mentation in hand when filing suit.” See Majority Op. ¶ 10 (emphasis added). Oklahoma plead-ing procedure does not require a plaintiff to have all evidence necessary to prevail on its claim at the time of the filing. Rather, what is required is a “short and plain statement of the claim showing that the pleader is entitled to relief.” 12 O.S. 2012 § 2008(A)(1). Additionally, 12 O.S.2012 § 2011(B)(3) provides that an attor-ney filing anything with the court certifies that to “the best of the person’s knowledge, infor-mation and belief, formed after an inquiry reasonable under the circumstances . . . the allegations and other factual contentions have evidentiary support or, if specifically so identi-fied, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.” 12 O.S. 2012 § 2011(B)(3) (emphasis added).3 Mortgage foreclosures, like other civil actions, allow the parties to continue to inves-tigate and discover evidence up until the time of judgment. ¶7 While I agree that questions of fact exist so that summary judgment was improper in this case, I cannot agree with the majority’s holding that the plaintiff must have the “proper support-ing documentation in hand when filing suit” because no authority states such and the Okla-homa pleading code requires otherwise. 1. The record indicates that the note presented at summary judg-ment was not indorsed. As such, a question of fact remains as to whether Plaintiff was the holder of the note, summary judgment was improper in this case. However, on remand, the trial court, rather than dismiss the petition, may allow the Plaintiff to amend its petition. HSBC Bank USA v. Lyon, 2012 OK 10, ¶ 1, __P.3d__. 2. In Gill, the plaintiff brought an action to foreclose a mortgage on real property. There was no discussion in the case of whether the plain-tiff had standing to bring the action or whether the plaintiff was the real party in interest. In fact, the case was tried to the Court, and the appeal turned on the sufficiency of evidence presented at trial. The Gill decision stands for the proposition that the assignment of the note car-ries with it an assignment of the mortgage. It is not relevant to the standing analysis, nor does it stand for the proposition that the plain-tiff must prove at the time of filing that it has a right to enforce the note. 3. Likewise, while I agree that the UCC applies in this case because the note is a negotiable instrument, the UCC does not require that a foreclosing entity prove at the time of filing that it is the person entitled to enforce the instrument. Vol. 83 — No. 7 — 3/3/2012 The Oklahoma Bar Journal 505 Director of Educational Programs Oklahoma Bar Association The Oklahoma Bar Association (OBA), the leading provider of Continuing Legal Education in the state of Oklahoma, seeks a Director of Educational Programs. The position manages and directs the OBA’s CLE Department and other educational events for the Association. The OBA CLE Department offers comprehensive and unique live programming for Oklahoma lawyers and has an impressive list of online programs and webinars that are of interest to lawyers nationwide. The OBA is a mandatory bar association of 17,000 members with its headquarters in Oklahoma City. Job Summary: The position is responsible for CLE development, advertising, planning and coordi-nating numerous Continuing Legal Education programs annually, as well as, planning and partici-pating in organizational meetings, adult public education programs, working closely with Law-related Education Department to provide programs for K-12 classroom instruction and Leadership Academy. CLE Programs include live presentations, webcasts and online learning opportunities. The Director of Educational Programs is responsible for managing a staff of five employees, all pre and post program logistics, communication to program attendees and faculty members, administrative reporting, vendor and sponsorship coordination and providing on-site support to assigned pro-grams. Competitive salary and excellent benefit package available to qualified candidates. Required Skills: • Law Degree with at least five years of legal practice or CLE management experience. • Must be self-motivated, positive, dependable, creative, possess a high degree of integrity, and participate as a team member to achieve common goals. • Demonstrate ability to successfully manage multiple priorities with a solid work ethic. • Proven proficiency in handling financial matters and department budgetary requirements. • Must be able to meet member requirements in a fast-paced work environment. • Strong customer service orientation. • Must be detail oriented with planning and organizational skills. • Patience and tact to work with all members. • Excellent communication; phone, email and interpersonally. • Ability to build relationships with faculty, participants and outside vendors. • Problem solver, quick thinker and idea generator. • Superior writing and editing skills. • Physical effort and dexterity include the ability to work within limits of an inside office position plus the ability to haul and transport equipment or materials required to conduct a CLE seminar. Computer Skills: Must be able to function in a Windows desktop environment Must be familiar with Microsoft Office Suite including Outlook and Excel Proficient in Email communications Internet resource, research and marketing knowledge Knowledge of online CLE presentations Send cover letter & resume in PDF format by March 30, 2012 to: EPDirectorSearch@Okbar.org All inquires and applications will be kept confidential. The OBA is an equal opportunity employer. 506 The Oklahoma Bar Journal Vol. 83 — No. 7 — 3/3/2012 Court of Civil Appeals Opinions 2012 OK CIV APP 11 DON HONEYWELL, Plaintiff, vs. GADA BUILDERS, INC., LARRY BRANNON PLUMBING & MECHANICAL, INC., and HUGHES ELECTRIC, INC., Defendants, and LARRY BRANNON PLUMBING & MECHANICAL, INC., and GADA BUILDERS, INC., Third-Party Plaintiffs/ Appellees, vs. GASTITE, a division of TITEFLEX, a foreign corporation, Third- Party Defendant/Appellant. Case No. 109,277. October 27, 2011 APEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE P. THOMAS THORNBRUGH, JUDGE AFFIRMED IN PART, REVERSED IN PART AND REMANDED Truman B. Rucker, WILSON, CAIN & ACQUA-VIVA, Tulsa, Oklahoma, Michael G. McAtee, MCATEE & WOODS, P.C., Oklahoma City, Oklahoma, for Third-Party Plaintiffs/Appellees, Joseph R. Farris, Jeremy K. Ward, FELDMAN, FRANDEN, WOODARD, FARRIS, Tulsa, Okla-homa, for Third-Party Defendant/Appellant. Kenneth L. Buettner, Judge: ¶1 Plaintiff Don Honeywell’s house was struck by lightning and destroyed by fire. Plaintiff sued GADA Builders, Inc. (Builder), the homebuilder, and Larry Brannon Plumbing & Mechanical, Inc. (Plumber), the subcontrac-tor hired to install the gas distribution system, for negligence and breach of contract. Plumber filed a third party petition against Gastite, the manufacturer of the corrugated stainless steel tubing (CSST) used in the distribution system. Counsel for Gastite entered an appearance in the case. Plaintiff then filed an Amended Peti-tion adding Gastite as a Defendant and alleg-ing damages caused by the defective CSST against Gastite, Builder, and Plumber. Plaintiff later filed a Second Amended Petition, aban-doning his negligence theory and alleging strict products liability claims against Gastite, Builder, Plumber. Plaintiff settled with the Defendants. Based on 12 O.S. Supp. 2004 § 832.1, Builder and Plumber sought indemnifi-cation from Gastite, the manufacturer, for attor-ney fees and costs incurred in defending the product liability action. The trial court granted summary judgment to Builder and Plumber and ordered Gastite to indemnify them for attorney fees and costs incurred between March 27, 2007, the date Gastite’s counsel entered an appearance, and the conclusion of the indem-nification proceedings. As a matter of first impression, Gastite asks this court to interpret 12 O.S. § 832.1. After de novo review, we hold that Gastite’s duty to indemnify was triggered May 31, 2007, when Plaintiff filed his Amended Petition. Therefore, we affirm in part, reverse in part and remand for the limited purpose of calculating reasonable attorney fees and costs incurred between May 31, 2007 and the conclu-sion of the indemnification proceedings. ¶2 Plaintiff contracted with Builder to build his home in Broken Arrow, Oklahoma. Plumb-er was the subcontractor hired by Builder to install the gas distribution system throughout the house. Plumber installed the system using corrugated stainless steel tubing (CSST). The CSST was manufactured by Gastite. After Plaintiff’s house was struck by lightning and destroyed, he filed the underlying lawsuit. ¶3 Plaintiff’s original Petition, filed Decem-ber 19, 2006, named Builder and Plumber as defendants.1 Plaintiff alleged the following as his first cause of action: V. The fire and the resulting damage were caused by the improper installation of the electrical and gas distribution systems in the house. VI. Builder was negligent in failing to supervise the work of Hughes and Plumb-er. Builder failed to warn the plaintiff of the fire hazard caused by the improper instal-lation of the electrical and gas distribution systems in the house. . . . VII. Plumber was negligent in the installa-tion of the gas distribution system. Plumb-er failed to warn the Plaintiff of the fire Vol. 83 — No. 7 — 3/3/2012 The Oklahoma Bar Journal 507 hazard caused by the improper installation of the gas distribution system. IX. As a result of the negligence of the Defendants and each of them and the resulting fire, Plaintiff sustained damages in excess of $10,000.00. Plaintiff alleged in his second cause of action that Builder was liable for breach of contract for failing to construct the home in a good and workmanlike manner. ¶4 Plumber filed a third party petition against Gastite February 21, 2007. Plumber alleged that the fire and damages claimed by the Plaintiff were caused by the failure of the CSST, that the defective CSST was manufactured by Gastite, that at the time the CSST left Gastite’s control it was defective and unreasonably dangerous, and that Plaintiff was a reasonably anticipated consumer. Counsel for Gastite entered an appearance in the case March 27, 2007. Builder filed a third-party petition against Gastite April 9, 2007. ¶5 On May 31, 2007, Plaintiff filed an Amend-ed Petition. Plaintiff named Builder, Plumber, and Gastite as Defendants and made the fol-lowing allegations: VII. The fire and the resulting damage were caused by the improper installation of the electrical and gas distribution systems in the house. VIII. Builder was negligent in failing to supervise the work of Hughes and Plumb-er. Builder failed to warn the plaintiff of the fire hazard caused by the improper instal-lation of the electrical and gas distribution systems in the house. . . . X. Plumber was negligent in the installa-tion of the gas distribution system. Plumb-er failed to warn the Plaintiff of the fire hazard caused by the improper installation of the gas distribution system. XI. The fire and resulting damage were caused by the failure of the corrugated stain-less steal tubing (CSST). The CSST was manufactured and placed in the stream of commerce by Gastite, a division of Titeflex. XII. The CSST was installed by the Defen-dant, Plumber, at the direction and under the supervision of Builder. XIII. The CSST was defective at the time it left the control of Gastite. The defect made the product unreasonably dangerous. The Plaintiff was a reasonably anticipated con-sumer of CSST. XIV. As a result of the negligence of the Defendants, Builder, Plumber and Hughes Electric, the failure of the Gastite CSST and the resulting fire, Plaintiff sustained dam-ages in excess of $10,000.00. Plaintiff also recited his second cause of action against Builder for breach of contract for failing to construct the home in a good and workmanlike manner. ¶6 The parties engaged in discovery for eigh-teen months and filed cross-claims seeking indemnification and/or contribution. Plaintiff filed a Second Amended Petition December 18, 2008. Plaintiff abandoned his negligence theory against Builder and Plumber and alleged strict products liability claims against Gastite, Build-er, and Plumber:2 VII. The fire and resulting damage were caused by a defective product, corrugated stainless steel tubing (CSST) sic was designed and manufactured by the Defen-dant, Gastite. The CSST was defective at the time it left the control of Gastite. The defect made the product unreasonably dangerous. The Plaintiff was a reasonably anticipated consumer of CSST. VIII. Defendants, Builder, Plumber, and Gastite, a division of Titeflex, sold and/or distributed the defective product and are liable to Plaintiff under Oklahoma’s manu-facturers products liability. Plaintiff maintained his breach of contract action against Builder, but changed the theory of liability: X. Pursuant to the terms of the contract, the Defendant was to construct a home free of defective material and products. XI. The Defendant, Builder, breached its contract by failing to provide the home to the Plaintiff free of defective materials and products. As a result of the breach of con-tract, a fire occurred which destroyed Plaintiff’s home and personal property. ¶7 Shortly after Plaintiff filed his Second Amended Complaint, Gastite defended the lawsuit on behalf of Builder and Plumber. 508 The Oklahoma Bar Journal Vol. 83 — No. 7 — 3/3/2012 Builder and Plumber claimed they were sellers of CSST and, based on 12 O.S. § 832.1, sought indemnification from Gastite, the product manufacturer, for attorney fees and costs incurred in defending the product liability action. All parties filed motions for summary judgment. In the meantime, Gastite settled the underlying lawsuit, and Plaintiff dismissed all claims against all Defendants November 30, 2009. Therefore, only the issue of indemnifica-tion remained for the trial court. ¶8 According to 12 O.S. § 832.1, “[a] manufac-turer shall indemnify and hold harmless a seller against loss arising out of a product liability action, except for any loss caused by the seller’s negli-gence, intentional misconduct, or other act or omission, such as negligently modifying or altering the product, for which the seller is inde-pendently liable.” 12 O.S. Supp. 2004 § 832.1.A (emphasis added). “For purposes of this section, ‘loss’ includes court costs and other reasonable expenses, reasonable attorney fees, and any rea-sonable damages.” Id., § 832.1.B. ¶9 Builder and Plumber argued that the case became a “product liability action” no later than March 27, 2007, the date Gastite’s attorney entered an appearance in the case. Therefore, Gastite’s statutory duty to indemnify sellers for attorney fees and costs was triggered March 27, 2007. Builder and Plumber explained that Gastite was notified of the product liability action and their demands for indemnification through their third party petitions. Builder and Plumber argued that Gastite’s duty to indem-nify was triggered before Plaintiff abandoned his negligence theory in the Second Amended Petition filed December 18, 2008. Builder and Plumber argued that Gastite could only negate its indemnity duty by showing that Builder and Plumber’s independent negligence caused the loss. ¶10 Gastite argued that Builder was not a “seller” as contemplated by the statute and, therefore, Gastite had no duty to indemnify Builder. Gastite argued that even if Builder was a seller, there was not a “product liability action” until Plaintiff filed his Second Amend-ed Petition December 18, 2008. Gastite argued that Plaintiff’s Second Amended Petition, for the first time, asserted product liability claims against Builder and Plumber. Gastite argued that between March 27, 2007 and December 18, 2008, Builder and Plumber only generated attorney fees and costs by defending claims against them for active and independent negli-gence and breach of contract, not products lia-bility. Gastite argued that § 832.1 does not require manufacturers to indemnify sellers for fees and costs in defending Plaintiff’s claims of independent negligence. ¶11 The trial court granted summary judg-ment to Builder and Plumber for attorney fees incurred between March 27, 2007, when counsel for Gastite entered an appearance in the case, and the conclusion of indemnification proceed-ings. Several months later, the trial court heard evidence on the amount of reasonable attorney fees. The trial court awarded $242,494.18 to Builder and $152,500.00 to Plumber for reason-able attorney fees, expenses, and costs arising out of the product liability action. ¶12 Gastite raises nine issues on appeal, but several are duplicates. Gastite asks this court to interpret 12 O.S. § 832.13 and determine wheth-er the attorney fees and costs awarded to Builder and Plumber were reasonable. No reported Oklahoma decisions have interpreted 12 O.S. § 832.1. ¶13 Summary judgment proceedings are governed by Rule 13, Rules for District Courts, 42 O.S. 2001, Ch. 2, App.1. Summary judgment is appropriate where the record establishes no substantial controversy of material fact and the prevailing party is entitled to judgment as a matter of law. Brown v. Alliance Real Estate Group, 1999 OK 7, ¶7, 976 P.2d 1043, 1045. The parties agree on the facts material to this dis-pute. Where the facts are not disputed, an appeal presents only a question of law. Jones v. Purcell Investments, LLC, 2010 OK CIV AP 15, ¶2, 231 P.3d 706, 708. In its Petition in Error, Gastite has alleged the question of law is the interpretation of 12 O.S. § 832.1. Issues of statu-tory construction are questions of law to be reviewed de novo, and appellate courts exercise plenary, independent, and non-deferential authority. Welch v. Crow, 2009 OK 20, ¶10, 206 P.3d 599, 603. In cases requiring statutory con-struction, the cardinal rule is to ascertain and give effect to the intent of the Legislature. Id. The words of a statute will be given a plain and ordinary meaning, unless it is contrary to the purpose and intent of the statute considered as a whole. Naylor v. Petuskey, 1992 OK 88, ¶4, 834 P.2d 439, 440. Legislative purpose and intent may be ascertained from the language in the title to a legislative enactment. Id. Vol. 83 — No. 7 — 3/3/2012 The Oklahoma Bar Journal 509 BUILDER WAS A SELLER OF CSST ¶14 According to 12 O.S. § 832.1, manufac-turers are required to indemnify sellers for loss arising out of a product liability action. 12 O.S. Supp. 2004 § 832.1.A. “[A] wholesale distribu-tor or retail seller who completely or partially assembles a product in accordance with the manufacturer’s instructions shall be consid-ered a seller.” Id., § 832.1.D. ¶15 Builder filed a motion for summary judgment arguing it was entitled to indemnity for attorney fees and costs incurred while defending Plaintiff’s claims. Builder included in its statement of material facts not in dispute: “6. [Builder] was a seller of the CSST as con-templated by Title 12 O.S. § 832.1.” Gastite’s response admitted was: “6. Not disputed, but not material to the determination of [the indem-nification issue].” ¶16 Gastite did not dispute Builder’s status as a seller of CSST until it filed its own motion for summary judgment October 15, 2009. Despite its previous admission, Gastite claimed it was undisputed that Builder was not a retail seller or distributor of CSST.4 In response, Builder cited Gastite’s previous admission that Builder was a seller of CSST within the mean-ing of § 832.1 and argued that Gastite should be estopped from claiming otherwise.5 ¶17 We hold that Builder was a seller as con-templated by 12 O.S. § 832.1. Middlemen in the chain of distribution are subject to strict prod-ucts liability.6 The policy reasons for imposing strict products liability on non-manufacturer sellers provide guidance in determining wheth-er Builder should be classified as a seller. The rationale for imposing strict liability on retail-ers and distributors is founded upon the public interests in human safety and protecting the ultimate consumer. Retailers and distributors, like manufacturers, are engaged in the busi-ness of distributing goods to the public. “[Retailers] are an integral part of the overall producing and marketing enterprise that should bear the cost of injuries resulting from defective products.” Moss v. Polyco, Inc., 1974 OK 53, ¶13, 522 P.2d 622, 626 (citing Vander-mark v. Ford Motor Co., 391 P.2d 168, 171 (Cal. 1964)). “Strict liability on the manufacturer and retailer alike affords maximum protection to the injured plaintiff and works no injustice to the defendants, for they can adjust the costs of such protection between them in the course of their continuing business relationships.” Id. (citing Vandermark, 391 P.2d at 172). The same policy reasons justify imposing strict liability on distributors. A distributor, for the purpose of strict products liability, is defined as “one who engages in the activity of making the defective product available for the use of oth-ers.” Potter v. Paccar Co., 519 F. Supp. 487, 489 (W.D. Okla. 1981). ¶18 Plaintiff contracted with Builder to build a home, which inherently included purchasing all of the building materials. Builder subcon-tracted with Plumber to install the gas distribu-tion system, which included purchasing the CSST and other materials used in the system. Plumber purchased the CSST from Gastite, the manufacturer. Plumber was certified by Gastite to install the CSST. The purpose of § 832.1 is to require the manufacturer to indemnify those in the distribution chain against expenses and damages in product liability actions. For pur-poses of this statute, the builder of a house is a “seller” of the products used in the construc-tion of the house. GASTITE’S DUTY TO INDEMNIFY BUILDER AND PLUMBER WAS TRIGERED BY PLAINTIFF’S AMENDED PETITION ¶19 We must determine when the underly-ing lawsuit became a “product liability action” and Gastite’s statutory duty to indemnify Builder and Plumber for their attorney fees and costs was triggered. Title 12 O.S. § 832.1.A. states: “A manufacturer shall indemnify and hold harmless a seller against loss arising out of a product liability action . . .” (emphasis added). ¶20 A manufacturer’s duty to indemnify a seller for attorney fees and costs arising out of a product liability action is triggered by the plaintiff’s pleadings.7 The Legislature intended to provide indemnity to sellers regardless of the outcome of the case.8 The Legislature also intended that the indemnity duty was to be based on the plaintiff’s pleadings.9 The general philosophy of the Oklahoma Pleading Code is that pleadings should give fair notice of the plaintiff’s claim and be subject to liberal amend-ment. Wilson v. Webb, 2009 OK 56, ¶9, 221 P.3d 730, 734. Pleadings should be liberally con-strued so as to do substantial justice. Id. Accord-ingly, we liberally construe Plaintiff’s petitions to determine when the lawsuit became a prod-uct liability action and the manufacturer’s statutory duty was triggered. A “product liabil-ity action” is based on injuries caused by a defective product. In order for there to be a 510 The Oklahoma Bar Journal Vol. 83 — No. 7 — 3/3/2012 “product liability action,” the plaintiff must plead that a product was defective. ¶21 Gastite argues that between March 27, 2007 (when Gastite’s counsel entered an appear-ance) and December 18, 2008 (when Plaintiff filed his Second Amended Petition) no product liability claim was asserted against Builder or Plumber; therefore, there was no “product lia-bility action.” Gastite argues it did not have a duty to indemnify Builder and Plumber before December 18, 2008, because Builder and Plumb-er were only defending independent negli-gence claims. ¶22 We agree with Gastite with respect to the period of time between March 27, 2007 and May 30, 2007. Plaintiff’s original Petition did not allege damages caused by a defective prod-uct; therefore, there was no product liability action. The trial court erred in finding the duty to indemnify was triggered when Gastite’s counsel entered an appearance in the case. Plaintiff’s pleadings triggered Gastite’s duty to indemnify, not Plumber’s third-party petition. A seller cannot transform a negligence action into a “product liability action” via a third-party petition. Only the plaintiff’s pleadings can create a “product liability action.” Gastite did not have a duty to indemnify Builder or Plumber between March 27, 2007 and May 30, 2007. Therefore, we reverse the trial court’s order that Gastite had a duty to indemnify Builder and Plumber for attorney fees and costs generated between March 27, 2007 and May 30, 2007. ¶23 Plaintiff filed an Amended Petition May 31, 2007. Gastite argues that the Amended Peti-tion merely repeated the claims in Plaintiff’s original Petition that Builder and Plumber were negligent, independent of any allegations that the CSST was defective. Gastite suggests that Plaintiff amended his petition to name Gastite as a defendant and assert a products liability claim against Gastite only. We dis-agree. Gastite has mis-characterized the allega-tions made against Builder and Plumber in Plaintiff’s Amended Petition. We hold that Plaintiff’s Amended Petition alleged a product liability action against Builder and Plumber and triggered Gastite’s duty to indemnify Builder and Plumber. ¶24 Reading the Amended Petition liberally, Plaintiff alleged product liability claims against not only Gastite, but also Builder and Plumber. A product liability action is based on an injury caused by a defective product. A plaintiff injured by a defective product can utilize vari-ous theories to recover for injuries caused by the product. A product liability action may be based on a theory of negligence liability or strict prod-ucts liability. The Oklahoma Supreme Court in the seminal products liability case, Kirkland v. General Motors Corp., noted that a plaintiff is not required to elect one theory of liability. 1974 OK 52, ¶40, 521 P.2d 1353, 1365. Even with the advent of strict products liability, the negligence cause of action remains available to a plaintiff injured by a defective product. ¶25 Plaintiff alleged in his Amended Petition that the CSST was a defective product, that Plumber negligently installed a defective prod-uct, that Builder negligently directed and super-vised the installation of the defective product, and that he was injured by the defective prod-uct. The negligence claims against Builder and Plumber were not claims of negligence indepen-dent of the defective product. Rather, Plaintiff claimed negligent installation of the defective product and negligent supervision of its installa-tion. Therefore, based on the allegations made in Plaintiff’s Amended Petition, a product liability action commenced and Gastite’s statutory duty to indemnify Builder and Plumber was triggered May 31, 2007. We affirm the trial court’s order that Gastite had a duty to indemnify Builder and Plumber for defense costs sustained between May 31, 2007 and the conclusion of the indemni-fication proceedings.10 ¶26 A manufacturer’s statutory duty to indemnify a seller for attorney fees and costs is analogous with an insurer’s duty to defend the insured.11 The insurer and the manufacturer are obligated to finance the insured and seller’s defense, respectively. The insurer defends on behalf of the insured12 and the manufacturer indemnifies the seller for its defense costs. Just as the insurer’s duty is triggered by facts gleaned from the plaintiff’s pleadings against the insured, the manufacturer’s duty is trig-gered by the plaintiff’s pleadings against the seller. If the plaintiff states a claim against the insured that is potentially covered by the insur-ance contract, the insurer’s duty is triggered. However, if the plaintiff makes allegations that are not potentially covered by the insurance contract, the insurer has no duty. If the plaintiff asserts a product liability action against the seller, the manufacturer’s duty is triggered. But if the plaintiff asserts a non-product liability Vol. 83 — No. 7 — 3/3/2012 The Oklahoma Bar Journal 511 action against the seller, the manufacturer has no duty. ¶27 Builder and Plumber relied heavily on Texas case law. Texas has a nearly identical products liability indemnification statute.13 We recognize that the outcome in this case aligns with the outcome of the Texas Supreme Court’s decision in Meritor Automotive, Inc. v. Ruan Leasing Co., 44 S.W.3d 86 (Tex. 2001).14 However, the facts of this case, including the allegations made in Plaintiff’s pleadings, do not mirror the facts and allegations in Meritor. Therefore, our holding is limited to the facts before this court, not the facts of Meritor. ¶28 The Texas Supreme Court held that “the seller’s reasonable cost to defend an unsuccess-ful negligence claim, asserted independently of the products liability claim, is properly includ-ed as part of the ‘loss arising out of a products liability action,’ so that it is within the manu-facturer’s indemnity duty.” Meritor, 44 S.W.3d at 87 (disapproving Hurst v. Amer. Racing Equip., Inc., 981 S.W.2d 458 (Tex. App. 1998)). In the case before this court, Plaintiff’s Amended Petition did not contain a “negligence claim, asserted independently of the products liability claim.” The issue on appeal is not whether a claim of truly independent negligence against a seller joined to a strict products liability claim against a manufacturer is part of a “product liability action” for purposes of 12 O.S. § 832.1. For the reasons discussed above, Plaintiff’s Amended Petition asserted product liability claims against Builder and Plumber, not negli-gence claims unrelated to a defective product. Where a negligence claim is based on a defec-tive product, the reasonable cost of defending that claim is a “loss arising out of a product liability action.” EXCEPTION TO INDEMNITY DUTY ¶29 Title 12 O.S. § 832.1.A. includes an excep-tion to the manufacturer’s indemnity duty: “A manufacturer shall indemnify and hold harm-less a seller against loss arising out of a product liability action, except for any loss caused by the seller’s negligence, intentional misconduct, or other act or omission, such as negligently modifying or altering the product, for which the seller is indepen-dently liable.” 12 O.S. Supp.2004 § 832.1.A (emphasis added). ¶30 On appeal, Gastite asks this court to determine “[w]hether the trial court erred in interpreting 12 O.S. § 832.1 as requiring the manufacturer to prove its seller committed active and independent negligence to defend a claim for indemnification-even though the Plaintiff specifically pled active and indepen-dent negligence causes of action against the seller.” We previously discussed Gastite’s mis-characterization of the claims asserted against Builder and Plumber in Plaintiff’s Amended Petition. Plaintiff alleged active and indepen-dent negligence against Builder and Plumber in his original Petition. However, in his Amend-ed Petition, Plaintiff asserted claims against Builder and Plumber for damages arising out of property damage caused by a defective product. Plaintiff based his product liability claims against Builder and Plumber on a negli-gence theory of liability and abandoned his claims of independent negligence. Thus, the lawsuit became a “product liability action,” free of independent negligence claims against Builder and Plumber. ¶31 While a manufacturer’s indemnity duty is triggered by the plaintiff’s pleadings, the exception to the duty is not. The exception only applies if the manufacturer proves that the seller’s independent conduct caused the plain-tiff’s injuries. The statute requires a manufac-turer to indemnify an innocent seller for certain damages and litigation expenses arising out of a product liability action but requires the seller to bear the damages and expenses they cause. See Meritor, 44 S.W.3d at 88; Fitzgerald, 996 S.W.2d at 867. While we do not expressly adopt the Texas Supreme Court’s decision with respect to what “product liability action” means, we do find Meritor persuasive in determining when the indemnification exception is invoked. The Meri-tor court rejected the manufacturer’s argument that it should be permitted to establish the exception to the indemnity duty through the plaintiff’s pleadings. 44 S.W.3d at 91. The Texas Supreme Court held that the “statute’s plain language indicates that the plaintiff’s pleadings are not sufficient to invoke the exception” and that “while the manufacturer’s duty to indem-nify the seller is invoked by the plaintiff’s pleadings and joinder of the seller as defen-dant, the exception to that duty is established by a finding that the seller’s independent con-duct was the cause of the plaintiff’s injury.” Id. ¶32 The allegations made in Plaintiff’s peti-tions were insufficient to invoke the exception under § 832.1. Plaintiff abandoned his claims against Builder and Plumber based on negli-gence in his Second Amended Petition. Prior to trial, Plaintiff and Gastite settled the underly- 512 The Oklahoma Bar Journal Vol. 83 — No. 7 — 3/3/2012 ing lawsuit, and Plaintiff dismissed all claims against all Defendants. The case concluded without a determination that Builder or Plumb-er’s independent conduct caused the fire. Sec-tion 832.1.E.1. suggests the Legislature antici-pated situations when the parties settle the product liability action. Sellers are entitled to indemnity regardless of “the manner in which the action is concluded.” 12 O.S. § 832.1.E.1. In this summary judgment appeal, the record does not contain evidence that either Builder or Plumber’s independent negligence caused Plaintiff’s injury. We hold that the exception does not apply and affirm the trial court’s order with regard to that issue. § 832.1 AND BOOKER v. SEARS ROEBUCK & CO. ¶33 Gastite asks this court to reconcile 12 O.S. § 832.1 and Booker v. Sears Roebuck & Co., 1989 OK 156, 785 P.2d 297. The decision in Booker was based on the manufacturer’s com-mon law duty to indemnify a seller for attor-ney fees and costs.15 By enacting § 832.1, the Legislature established the manufacturer’s statutory duty to indemnify a seller for attor-ney fees and costs. Booker was decided in 1989, and § 832.1 was enacted in 2004. To the extent Gastite relies on Booker and § 832.1 modifies Booker, the statute controls.16 REASONABLENESS OF ATTORNEY FEES ¶34 A trial court’s award of attorney fees is reviewed for abuse of discretion. Spencer v. Okla. Gas & Elec. Co., 2007 OK 76, ¶13, 171 P.3d 890, 895. An abuse of discretion occurs when a decision is based on an erroneous conclusion of law or where there is no rational basis in evi-dence for the ruling. Id. Generally, the correct formula for calculating a reasonable fee is to: 1) determine the lodestar fee by multiplying the attorney’s hourly rate by the hours expended; and 2) modify the fee through consideration of the Burk factors.17 Id., ¶¶13-14, 171 P.3d at 895. ¶35 Builder and Plumber incurred signifi-cant attorney fees and costs while defending Plaintiff’s product liability action and Gastite’s cross-claims. Gastite asks this court to deter-mine whether the trial court abused its discre-tion by using an attorney’s hourly rate for del-egable work, permitting fees for duplicate effort, allowing vague time entries and block billing, and including unnecessary expert wit-ness fees in the award. After reviewing the evidence in the record, we are not persuaded that the trial court abused its discretion.18 ¶36 However, the trial court included in its award attorney fees, costs, and expenses gener-ated between March 27, 2007 and May 30, 2007, when the case was not a product liability action. It was an abuse of discretion to award attorney fees, costs, and expenses for that period of time. Therefore, we reverse and remand the case for the limited purpose of cal-culating and awarding attorney fees, costs, and expenses generated between May 31, 2007 and the conclusion of the indemnification proceed-ings. 19 Attorney fees, costs, and expenses incurred prior to May 31, 2007 should be excluded from the trial court’s calculation. ¶37 AFFIRMED IN PART, REVERSED IN PART AND REMANDED. MITCHELL, P.J., and JOPLIN, J., concur. 1. Hughes Electric, Inc. was also named as a Defendant, but Hughes is not a party to this appeal. 2. Strict products liability is commonly referred to as Manufactur-ers’ Products Liability in Oklahoma. See Kirkland v. Gen. Motors Corp., 1974 OK 52, ¶20, 521 P.2d 1353, 1361. 3. Gastite asks this court to determine (1) whether Builder was a “seller” as contemplated by 12 O.S. § 832.1; (2) when a “product liabil-ity action” was asserted against Builder and Plumber, triggering Gas-tite’s duty to indemnify; (3) whether the exception to the duty to indemnify is invoked by the plaintiff’s pleadings or a manufacturer must prove the seller’s independent negligence in order to invoke the exception; and (4) whether the trial court’s order erred ruling 12 O.S. § 832.1 overruled the Oklahoma Supreme Court’s decision in Booker v. Sears Roebuck & Co., 1989 OK 156, 785 P.2d 297. 4. However, Gastite attached to its motion a letter, dated February 6, 2009, in which Gastite stated: “Effective immediately [Gastite] agrees to defend, indemnify and hold harmless GADA Builders based upon [Gastite’s] statutory obligation set forth in 12 O.S. § 832.1 (requiring a manufacturer of a product to indemnify a seller of its product for dam-ages caused by the manufacturer’s product).” 5. Builder also noted that it was a distributor of the CSST because it purchased CSST by paying Plumber for the CSST and paying Plumber to install it in Plaintiff’s house. Builder argued it was a dis-tributor because it was involved in the stream of commerce connecting the CSST to Plaintiff, the ultimate consumer. Builder also noted that the court’s interpretation of § 832.1 was needed to determine if Builder was a retail seller. 6. Each member of the distributive chain is liable if they sold the defective product that injured the plaintiff and if the product left the seller’s control in a defective condition. See Kirkland v. Gen. Motors Corp., 1974 OK 52, ¶21, 521 P.2d 1353, 1361; Restatement 2d of Torts § 402A(1)(b) (1965). The manufacturer, retailer, wholesaler, and dis-tributor each owes “a separate and nondelegable duty to market a safe product.” Braden v. Don Hendricks, 1985 OK 14, ¶19, 695 P.2d 1343. 7. See Meritor Automotive, Inc. v. Ruan Leasing Co., 44 S.W.3d 86 (Tex. 2001) (citing Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 867 (Tex. 1999)) (“In Fitzgerald, we concluded that pleadings join-ing a seller as defendant in a products liability action were sufficient to invoke the manufacturer’s indemnity duty under the Act.”). 8. “The duty to indemnify under this section . . . [a]pplies without regard to the manner in which the action is concluded . . .” 12 O.S. § 832.1.E.1. 9. See 12 O.S. § 832.1.F.: “A seller eligible for indemnification under this section shall give reasonable notice to the manufacturer of a prod-uct claimed in a petition or complaint to be defective, unless the manufac-turer has been served as a party or otherwise has actual notice of the action.” (emphasis added). 10. “A seller is entitled to recover from the manufacturer court costs and other reasonable expenses, reasonable attorney fees, and any reasonable damages incurred by the seller to enforce the seller’s right to indemnification under this section.” 12 O.S. § 832.1.G. 11. A liability insurance policy generally contains two basic duties: the insurer has a duty to defend its insured and a duty to indemnify its Vol. 83 — No. 7 — 3/3/2012 The Oklahoma Bar Journal 513 insured for damages. First Bank of Turley v. Fidelity & Deposit Ins. Co. of Maryland, 1996 OK 105, ¶13, 928 P.2d 298, 302. The duty to defend is separate from, and broader than, the duty to indemnify, but the insurer’s obligation is not unlimited. Id., ¶13 at 303. The duty to defend is measured by the nature and kinds of risks covered by the policy as well as by the reasonable expectations of the insured. Id. An insurer has a duty to defend an insured whenever it ascertains the presence of facts that give rise to the potential of liability under the policy. Id. “The insurer’s defense duty is determined on the basis of information gleaned from the petition (and other pleadings), from the insured and from other sources available to the insurer at the time the defense is demanded (or tendered) rather than by the outcome of the third-party action.” Id., ¶13 at 303-04. After the insurer receives notice of a third party’s claim against the insured, it must determine whether a poten-tial for coverage exists under the policy. Id., ¶14 at 304. 12. If the insurer owes the insured a duty to defend under the insurance contract and the insurer refuses to defend, the insurer is liable “for all reasonable expenses incurred by an insured in defense of the third-party action.” Id., ¶17 at 304. 13. TEX. CIV. PRAC. & REM. CODE § 82.002 (West): (a) A manufacturer shall indemnify and hold harmless a seller against loss arising out of a products liability action, except for any loss caused by the seller’s negligence, intentional misconduct, or other act or omission, such as negligently modifying or altering the product, for which the seller is independently liable. (b) For purposes of this section, “loss” includes court costs and other reasonable expenses, reasonable attorney fees, and any reasonable damages. (c) Damages awarded by the trier of fact shall, on final judgment, be deemed reasonable for purposes of this section. (d) For purposes of this section, a wholesale distributor or retail seller who completely or partially assembles a product in accor-dance with the manufacturer’s instructions shall be considered a seller. (e) The duty to indemnify under this section: (1) applies without regard to the manner in which the action is concluded; and (2) is in addition to any duty to indemnify established by law, contract, or otherwise. (f) A seller eligible for indemnification under this section shall give reasonable notice to the manufacturer of a product claimed in a petition or complaint to be defective, unless the manufac-turer has been served as a party or otherwise has actual notice of the action. (g) A seller is entitled to recover from the manufacturer court costs and other reasonable expenses, reasonable attorney fees, and any reasonable damages incurred by the seller to enforce the seller’s right to indemnification under this section. 14. Recently, the Texas Supreme Court returned to the products liability indemnity statute in Toyota Industrial Equip. Mfg. v. Carruth- Doggett, Inc., 325 S.W.3d 683 (2010). The outcome in this case also aligns with that in Toyota. The plaintiff’s negligence claim against the seller in Toyota was based on a defective product and the court held: [I]t is still clear from [the plaintiff’s] pleadings that the basis of the claims against [the Manufacturer were] that the [product] was defective and caused his injury. His second amended peti-tion alleges specific products liability claims against [the Manu-facturer] regarding specific defective components, and it alleges that [the Seller] was negligent in maintaining the [product] and in “failing to use . . . due care to test and/or inspect [the product] or the component parts in question.” . . . Because [the plaintiff] alleges that a defect in the [product] manufactured by the Manu-facturer caused him harm, his pleadings implicate the indemnity provision in Section 82.002 covering “loss arising out of a prod-ucts liability action.” Toyota, 325 S.W.3d at 690-91. 15. “Oklahoma has previously recognized that a manufacturer may be found to have a duty to indemnify its dealer against claims for loss caused by the manufacturer’s defective product. Booker, 785 P.2d at 298 (citing Braden v. Hendricks, 1985 OK 14, 695 P.2d 1343). “Reason-able attorney fees have been allowed, as part of damages, to an indem-nitee so long as the fees were incurred in defense of the claim indemni-fied against.” Id. at 298-99 (citing United Gen. Ins. v. Crane Carrier Co., 1984 OK 47, 695 P.2d 1334). “However, indemnification of legal costs is not permissible where an adverse position has been taken by the claimant against the party from whom indemnity is sought. This is due to the necessity of a benefit being conferred on the indemnitor before the law will impose an obligation.” Id. at 299 (citing Berry v. Barbour, 1955 OK 358, 279 P.2d 335). 16. “The duty to indemnify under this section . . . [i]s in addition to any duty to indemnify established by law, contract, or otherwise.” 12 O.S. § 832.1.E.2. 17. The factors set out in Burk v. Oklahoma City, 1979 OK 115, ¶8, 598 P.2d 659, 661, are: time and labor required; novelty and difficulty of the questions; skill requisite to perform the legal service; preclusion of other employment; customary fee; whether the fee is fixed or contin-gent; time limitations; amount involved and results obtained; experi-ence, reputation and ability of the attorneys involved; risk of recovery; nature and length of relationship with the client; and awards in similar causes. 18. Builder requested $242,494.18 and was awarded $242,494.18. Plumber requested $152,500.00 and was awarded $152,500.00. At the October 27, 2010 hearing on attorney fees, Gastite stipulated that coun-sel for Builder and Plumber accurately recorded their time and worked the hours listed on their billing records. 19. “A seller is entitled to recover from the manufacturer court costs and other reasonable expenses, reasonable attorney fees, and any reasonable damages incurred by the seller to enforce the seller’s right to indemnification under this section.” 12 O.S. Supp.2004 § 832.1.G. 2012 OK CIV APP 12 CLIFTON GENTRY, Petitioner, vs. BERRY MACHINE & TOOL CO., INC. and THE WORKERS’ COMPENSATION COURT, Respondents. Case No. 109,513. January 11, 2012 PROCEEDING TO REVIEW AN ORDER OF THE WORKERS’ COMPENSATION COURT HONORABLE GENE PRIGMORE, TRIAL JUDGE SUSTAINED Richard A. Bell, Heather A. Lehman, THE BELL LAW FIRM, Norman, Oklahoma, for Petitioner Donald A. Bullard, BULLARD & ASSOCI-ATES, P.C., Oklahoma City, Oklahoma, for Respondents KEITH RAP, JUDGE: ¶1 Claimant, Clifton Gentry, appeals an Order of the workers’ compensation court denying his request to commute a portion of his permanent total disability award to a lump-sum payment pursuant to Title 85 O.S.2001, § 41(B). BACKGROUND ¶2 Claimant sustained an injury to his back, tailbone, both hips, and both legs on December 8, 2004, when a co-worker pulled a chair from under Claimant while he was at work for Employer, Berry Machine & Tool Co., Inc. Claimant was relegated to a wheelchair due to his physical injuries. ¶3 Claimant filed a Form 3 on January 21, 2005, alleging the single event injury. Claimant subsequently amended the Form 3, addition- 514 The Oklahoma Bar Journal Vol. 83 — No. 7 — 3/3/2012 ally alleging psychological overlay and sexual dysfunction. ¶4 By various orders, the workers’ compen-sation court awarded Claimant home renova-tions, a memory foam bed, a carport, and suit-able transportation commensurate with his physical abilities. ¶5 The workers’ compensation trial court entered an Order, filed on January 18, 2011, finding Claimant sustained a work-related injury to his left shoulder and back, sexual dys-function, and psychological overlay. The court found Employer paid Claimant temporary total disability benefits from February 16, 2005, to November 16, 2010. The court further found Claimant permanently and totally disabled and that “it would not be practical to require the claimant to participate in vocational re-training services.” The workers’ compensation court found Claimant’s rate of permanent total disability was $210.00 a week, which allowed for an accrued portion of his award at the time of the Order of $1,764.92. The court also award-ed continuing medical treatment and attendant home care. ¶6 On March 3, 2011, Claimant filed a Form 13, motion to commute pursuant to Title 85 O.S.2001, § 41(B). The workers’ compensation court entered an Order, filed on May 11, 2011, denying Claimant’s request to commute a por-tion of his permanent total disability award to a lump-sum amount. ¶7 Claimant appeals. STANDARD OF REVIEW ¶8 This appeal involves a question of statu-tory interpretation, which presents a question of law. Samman v. Multiple Injury Trust Fund, 2001 OK 71, ¶ 8, 33 P.3d 302, 305. This Court reviews a question of law de novo. Id. The appel-late court has the plenary, independent, and non-deferential authority to reexamine a trial court’s legal rulings. K & H Well Serv., Inc. v. Tcina, Inc., 2002 OK 62, ¶ 9, 51 P.3d 1219, 1223. ANALYSIS ¶9 The issue presented on appeal is whether the workers’ compensation trial court erred in applying Title 85 O.S.2001, § 41(B) rather than Section 41(A) and, therefore, denying Claim-ant’s request to commute a portion of his per-manent total disability award. Claimant argues the workers’ compensation court incorrectly applied Section 41(B), which precludes the commutation of a permanent total disability award, and should have allowed Claimant to commute his permanent total disability award pursuant to Section 41(A). ¶10 These two subsections of Section 41 are in direct conflict concerning whether a claimant is entitled to have an award of permanent total disability commuted to a lump-sum payment. Section 41(A) appears to allow the workers’ compensation court to commute a permanent total disability award, while Section 41(B) spe-cifically prohibits the permanent total disability award to be commuted. ¶11 Section 41(A) provides: A. Awards for permanent partial disability under Section 22 of this title shall be made for the total number of weeks of compensa-tion which the Court shall find the claim-ant will be entitled to receive, less any sums previously paid which the Court may find to be a proper credit thereon. When the award becomes final, the whole sum or any unpaid portion thereof shall operate as a final adjudicated obligation and payment thereof may be enforced by the claimant or in case of his death, by the surviving ben-eficiary entitled to the proceeds as provid-ed in Section 48 of this title. All awards shall be paid by periodic installments as determined by the Court. Whenever an injured person receives an award for permanent partial disability, permanent total disability or death benefits, the injured employee or claim-ant, for good cause shown, may have the award commuted to a lump-sum payment by permis-sion of the Court. This authorization for commutation shall not be applicable to attorney fees in permanent total disability cases. The lump-sum payment shall not exceed Four Thousand Dollars ($4,000.00) or twenty-five percent (25%) of the total award, whichever is the larger sum. (Emphasis added.) In contrast, Section 41(B) specifically precludes commutation of a permanent total disability award: B. Awards for permanent total disability shall be made by the Court under Section 22 of this title. The Court shall make a determination that the claimant will be entitled to receive the weekly income ben-efits provided in this title as long as his permanent total disability continues to exist. When an award for total permanent Vol. 83 — No. 7 — 3/3/2012 The Oklahoma Bar Journal 515 disability becomes final, the accrued por-tion thereof shall operate as a final adjudi-cated obligation and payment thereof may be enforced by the claimant. In proceed-ings to enforce claims for total permanent disability, the compensation under the pro-visions of the Workers’ Compensation Act shall be payable periodically and shall be so provided in any award made thereon. Total permanent disability awards shall not be commuted to a lump-sum payment. (Empha-sis added.) ¶12 The Oklahoma Court of Civil Appeals has addressed the issue of whether a perma-nent total disability award may be commuted and has reached different conclusions. In Cun-ningham v. Rupp Drilling, Inc., 1989 OK CIV AP 77, 783 P.2d 985, the Court of Civil Appeals held that a permanent total disability award may be commuted to a lump-sum payment pursuant to Section 41(A). The Court found that a careful reading of the statute revealed that the subsections were not in conflict, but could be harmonized. The Court distinguished between the different procedural phases men-tioned in Section 41(A) — the hearing resulting in an award of benefits — and Section 41(B) —proceedings to enforce claims. Id. at ¶ 4, 783 P.2d at 986. The Court determined that, under Section 41(A), the workers’ compensation trial court had the discretion to commute a part of the award to a lump sum at the time the origi-nal award was made, if the claimant could show good cause. Id. at ¶ 8, 783 P.2d at 986. ¶13 The Court of Civil Appeals reached a dif-ferent result in Rea v. Big Chief Drilling Co., 1983 OK CIV AP 61, 673 P.2d 515. The Court recog-nized the conflict between Subsections (A) and (B) and held that the conflict could not be har-monized. Applying rules of statutory construc-tion, the Court concluded that “[i]n the absence of legislative intent to the contrary, we find that the specific prohibition on commutation found in 85 O.S. 1981 § 41(B), concerning awards for permanent total disability must control over the discretion to allow such awards in subsec-tion 41(A) concerning awards for permanent partial disability.” Id. at ¶ 18, 673 P.2d at 519. ¶14 The Legislature recently enacted legisla-tion changing the wording of Section 41(A) and (B) and resolving the conflict between the two subsections. Title 85 O.S.2011, § 345 [previ-ously Section 41(A) and (B)] now provides: A. Awards for permanent partial impair-ment shall be made for the total number of weeks of compensation which the Work-ers’ Compensation Court shall find the claimant will be entitled to receive, less any sums previously paid which the Court may find to be a proper credit thereon. When the award becomes final, the whole sum or any unpaid portion thereof shall operate as a final adjudicated obligation and payment thereof may be enforced by the claimant or in case of the claimant’s death, by the sur-viving beneficiary entitled to the proceeds as provided in Section 49 of this act. All awards shall be paid by periodic install-ments as determined by the Court. When-ever an injured person receives an award for permanent partial impairment, the injured employee or claimant, for good cause shown, may have the award commuted to a lump-sum payment by permission of the Court. The lump-sum payment shall not exceed twen-ty- five percent (25%) of the total award. The balance of the total award shall be paid in periodic installments. B. Awards for permanent total disability shall entitle the claimant to receive weekly income benefits for the period prescribed in Section 36 of this act. When an award for permanent total disability becomes final, the accrued portion thereof shall operate as a final adjudicated obligation and payment thereof may be enforced by the claimant or in case of the claimant’s death, by the sur-viving beneficiary entitled to the proceeds as provided in Section 49 of this act. Perma-nent total disability awards shall not be com-muted to a lump-sum payment. (Emphasis added.) ¶15 Generally, this Court may examine a subsequent amendment to a statute to ascer-tain the meaning of the prior statute. Quail Creek Golf and Country Club v. Oklahoma Tax Comm’n, 1996 OK 35, ¶ 10, 913 P.2d 302, 304. When the Legislature amends a statute it may be changing the existing law or clarifying the law. American Airlines v. Hickman, 2007 OK 59, ¶ 11, 164 P.3d 146, 149. The Oklahoma Supreme Court in Samman v. Multiple Injury Trust Fund, 2001 OK 71, ¶ 13, 33 P.3d 302, 307 (citations omitted) explained: The exact intent is ascertained by looking to the circumstances surrounding the amend-ment. If the earlier version of a statute defi-nitely expresses a clear and unambiguous 516 The Oklahoma Bar Journal Vol. 83 — No. 7 — 3/3/2012 intent or has been judicially interpreted, a legislative amendment is presumed to change the existing law. Nonetheless, if the earlier statute’s meaning is in doubt or uncertain, a presumption arises that the amendment is designed to clarify, i.e., more clearly convey, legislative intent which was left indefinite by the earlier statute’s text. In determining the legislative intent, the courts may properly consider whether the stat-ute before amendment was clear or ambigu-ous. Board of Educ., Vici Public Schools, Indep. School Dist. No. I-5, Dewey County v. Morris, 1982 OK 142, ¶ 9, 656 P.2d 258, 261. “A subsequent statute clarifying a prior statute can be used to determine the meaning of the prior statute even if the interpretation affects alleged vested rights.” Quail Creek Golf and Country Club v. Oklahoma Tax Comm’n, 1996 OK 35 at ¶ 10, 913 P.2d at 304. ¶16 Here, the previous language of Section 41(A) and (B) concerning whether a permanent total disability award could be commuted to a lump-sum payment was ambiguous and had not been judicially determined by the Oklaho-ma Supreme Court. The Oklahoma Court of Civil Appeals had reached different conclu-sions regarding the propriety of commutation under Section 41. The Legislature’s amend-ment of the statute, 85 O.S.2011 § 345, clarified the legislative intent of the previous subsec-tions and provides guidance to this Court in interpreting the statute. ¶17 This Court finds the workers’ compensa-tion trial court did not err in denying Claim-ant’s request to commute a portion of his per-manent total disability award. The workers’ compensation court’s Order is sustained. ¶18 SUSTAINED. GOODMAN, P.J., and THORNBRUGH, J., concur. 2012 OK CIV APP 10 IN RE THE MARRIAGE OF: JOAN PLUM-LEE, Petitioner/Appellee, vs. PHILLIP PLUMLEE, Respondent/Appellant. Case No. 107,922. December 30, 2011 APEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE DONALD L. DEASON, TRIAL JUDGE AFFIRMED Joan M. Blood (f/k/a Plumlee), Jefferson City, Missouri, Pro Se Jay F. McCown, Tamra A. Spradlin, QUICK, MCCOWN & SPRADLIN, Oklahoma City, Oklahoma, for Respondent/Appellant JOHN F. FISCHER, VICE-CHIEF JUDGE: ¶1 Phillip Plumlee (Father), appeals the dis-trict court’s order granting Joan Plumlee’s (Mother), motion to dismiss his objection to her notice of relocation of their child. Father’s objection was filed out of time. Therefore, the district court did not err in granting Mother’s motion and we affirm. BACKGROUND ¶2 On August 8, 2008, the district court granted the parties a divorce and awarded Mother custody of their minor child. On August 20, 2008, Mother filed her first notice of reloca-tion and mailed a copy to Father pursuant to 43 O.S.2011 § 112.3.1 The district court sustained Father’s timely objection after a hearing con-ducted on October 8, 2008. On April 10, 2009, Mother mailed a second notice of relocation, properly addressed to Father, by certified mail. After a second attempt to deliver the letter on April 17, 2009, the United States Postal Service (USPS) returned the letter to Mother marked “Refused.” Mother filed a third notice on June 14, 2009, notifying Father that she was delay-ing the date of her move by approximately one month. After a second delivery attempt on June 15, 2009, the USPS returned this certified letter, also marked “Refused,” to Mother. ¶3 Mother relocated in July. On August 4, 2009, Father filed an objection to Mother’s relo-cation. He also sought a permanent order pre-venting Mother’s relocation or in the alternative, modification of custody to award him primary custody. Mother filed a motion to dismiss Father’s objection, and following a hearing on August 20, 2009, the district court granted Mother’s motion and dismissed Father’s objec-tion to Mother’s relocation. Father appeals.2 STANDARD OF REVIEW ¶4 This appeal requires review of the district court’s application of 43 O.S.2011 § 112.3. “A legal question involving statutory interpretation is subject to de novo review, i.e., a non-deferen-tial, plenary and independent review of the trial court’s legal ruling.” Heffron v. Dist. Ct. of Okla. County, 2003 OK 75, ¶ 15, 77 P.3d 1069, 1076 (cit- Vol. 83 — No. 7 — 3/3/2012 The Oklahoma Bar Journal 517 ing Samman v. Multiple Injury Trust Fund, 2001 OK 71, ¶ 8, n.5, 33 P.3d 302, 305 n.5). ANALYSIS ¶5 Father argues that the district court erred in permitting Mother to relocate. This argu-ment takes two forms. First, Father argues that his objection was timely and, therefore, the district court was required by section 112.3 to hold an evidentiary hearing. Second, he con-tends that the district court’s denial of Mother’s first attempt to relocate is determinative of her second notice based on the doctrine of claim preclusion. ¶6 Two statutes govern the relocation of a minor child by a custodial parent. Mahmoodjan-loo v. Mahmoodjanloo, 2007 OK 32, ¶ 2, 160 P.3d 951, 952. The first statute provides: A parent entitled to the custody of a child has a right to change his residence, subject to the power of the district court to restrain a removal which would prejudice the rights or welfare of the child. 10 O.S.2001 § 19 (renumbered as 43 O.S.2011 § 112.2A). The second, 43 O.S. 2011 § 112.3, provides in pertinent part: B. 1. Except as otherwise provided by this section, a person who has the right to establish the principal residence of the child shall notify every other person enti-tled to visitation with the child of a pro-posed relocation of the child’s principal residence as required by this section. . . . . C. 1. Except as provided by this section, notice of a proposed relocation of the prin-cipal residence of a child or notice of an intended change of the primary residence address of an adult must be given: a. by mail to the last-known address of the person to be notified, . . . . G. 1. The person entitled to custody of a child may relocate the principal residence of a child after providing notice as provid-ed by this section unless a parent entitled to notice files a proceeding seeking a tem-porary or permanent order to prevent the relocation within thirty (30) days after receipt of the notice. . . . . 2. A parent entitled by court order or writ-ten agreement to visitation with a child may file a proceeding objecting to a pro-posed relocation of the principal residence of a child and seek a temporary or perma-nent order to prevent the relocation. . . . . 4. A proceeding filed pursuant to this subsec-tion must be filed within thirty (30) days of receipt of notice of a proposed relocation. . . . . K. The relocating person has the burden of proof that the proposed relocation is made in good faith. If that burden of proof is met, the burden shifts to the nonrelocating per-son to show that the proposed relocation is not in the best interest of the child. ¶7 The first statute gives the custodial parent a “presumptive right” to relocate. Kaiser v. Kai-ser, 2001 OK 30, ¶ 18, 23 P.3d 278, 282. The second statute requires notice of intent to relo-cate and provides for a hearing procedure if the non-custodial parent objects to relocation. Other than in Harrison v. Morgan, 2008 OK CIV AP 68, ¶ 15, 191 P.3d 617, 621 (holding that section 112.3 did not repeal 10 O.S.2011 § 19), there has been no effort to construe the effect of or to reconcile the two statutes. See Mahmood-janloo, 2007 OK 32, ¶ 12, 160 P.3d at 955 (declin-ing to resolve the issue of potential conflict because it had not been addressed by the trial court). And, it is unnecessary to do so in this case, except to the extent that we find a parent’s right to relocate a child provided in section 112.2A is limited by the notice and hearing requirements of section 112.3, if the child is to be moved more than seventy-five miles from the child’s principal residence for a period of time exceeding sixty days. See Galarza v. Galar-za, 2010 OK CIV AP 19, ¶ 13, 231 P.3d 694, 698. It is necessary, however, to decide whether Mother’s certified mailing satisfies the notice provision of section 112.3.3 ¶8 Section 112.3 does not specifically require certified mail, as used by Mother in this case, nor does it address how the requirement of notification may be satisfied beyond the speci-fication that notice must be given “by mail to the last-known address of the person to be notified.” Section112.3 (C)(1)(a). The most stringent form of notice required in this State is for service of process. Title 12 O.S. Supp. 518 The Oklahoma Bar Journal Vol. 83 — No. 7 — 3/3/2012 2009 § 2004(C)(2) authorizes service by mail and provides, in part: a. At the election of the plaintiff, a sum-mons and petition may be served by mail. . . . Service by mail shall be effective on the date of receipt or if refused, on the date of refusal of the summons and petition by the defendant. b. Service by mail shall be accomplished by mailing a copy of the summons and peti-tion by certified mail, return receipt request-ed and delivery restricted to the addressee. . . . ¶9 Because of the fundamental family and due process issues involved in relocating a child, we find that a party required to satisfy the notifica-tion by mail provision of section 112.3 must meet the requirements of section 2004(C)(2) of the Oklahoma Pleading Code. See In re Adoption of D.T.H., 1980 OK 119, ¶ 19, 615 P.2d 287, 290 (holding that a parent’s right “to the care, cus-tody, companionship and management of his or her child is a fundamental right protected by the federal and state constitutions”)(overruled on other grounds); In re C.S., 1978 OK 94, ¶ 12, 580 P.2d 983, 985 (“The fundamental nature of parental rights requires that the full panoply of procedural safeguards must be applied to child deprivation hearings.”). Although this is not a termination proceeding, relocation may sub-stantially affect Father’s visitation with his child. ¶10 Father argues Mother’s mailing was insufficient for two reasons. First, he contends that Mother was required by the parties’ divorce decree to use email. Second, he argues that, even if mailing were permitted, he was not provided the notice prior to relocation required by section 112.3, because he claims he did not personally receive the mailing sent by Mother. I. Father’s Email Argument ¶11 We find Father’s argument that Mother was required by the parties’ divorce decree to communicate her notice of relocation by email unpersuasive and disingenuous. First, absent a finding of unconstitutionality, courts are required to apply and enforce clear and unam-biguous legislative enactments like the mailing requirement of section 112.3. See In re City of Durant, 2002 OK 52, ¶ 13, 50 P.3d 218, 221. ¶12 Second, the provision in the divorce decree Father relies on is not, as Father argues, conclusive on the issue. That provision states that “the parties shall further use e-mail as the primary mode of communication unless the particular circumstances of the need for com-munication make use of e-mail unreasonable or impracticable.” (Emphasis added). Here, the particular circumstances and the directives of section 112.3 required a form of communica-tion other than email. Further, the divorce decree cannot be construed in a manner that would excuse compliance with mandatory statutory requirements. “[T]he general rule is that nothing may be read into a statute which was not within the manifest intention of the legislature as gathered from the language of the act.” Stemmons, Inc. v. Universal C.I.T. Credit Corp., 1956 OK 221 ¶ 19, 301 P.2d 212, 216. ¶13 Finally, this Court notes that the divorce decree specifically addresses this issue, a fact not called to our attention by Father or his counsel, even though that fact is included in findings by the district court set forth in the order from which Father appeals. Exhibit C to the divorce decree addresses relocation by either party after November 1, 2008. Those pro-visions state that relocation is governed by sec-tion 112.3 and further provide: “The relocating party shall mail (or serve in the manner pro-vided for service of summons)” any notice of intent to relocate. This is consistent with our conclu |
Month/year uploaded | March 2012 |
Date created | 2012-03-20 |
Date modified | 2016-08-03 |
OCLC number | 890218005 |
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