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IN THE SUPREME COURT OF THE STATE OF OKLAHOMA

SOp~1Leo 87A TE afE CQLJRr

OlfLAHOAfA

January 4, 2016

, Petitioner,

vs.

JAN -4 2016 MICHAELS

C•,.. · RICH/J: a..c:'RI{

THE HONORABLE JUDGE THAD BALKMAN, Respondent.

Honorable Thad Balkman, Trial Judge District Court Cleveland County, Oklahoma

District Court Case No.

Traci L. Soderstrom, #19945 Matt Adam Thomas; #32277 Law Office of Traci L. Soderstrom, P.C. 601 S. Sunnylane Rd. Del City, Oklahoma 73115 Telephone (405) 601-1217 Facsimile (405) 601-1247 Attorneys for Petitioner

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Petitioner,

vs.

THE HONORABLE JUDGE THAD BALKMAN, Respondent.

BRIEF IN SUPPORT:

APPLICATION TO ASSUME ORIGINAL JURISDICTION AND

PETITION FOR WRIT OF MANDAMUS AND WRIT OF PROHIBITION

January 4, 2016

Honorable Thad Balkman, Trial Judge District Court Cleveland County, Oklahoma

District Court Case No.

Traci L. Soderstrom, #19945 Matt Adam Thomas, #32277 Law Office of Traci L. Soderstrom, P.C. 601 S. Sunnylane Rd. Del City, Oklahoma 73115 Telephone (405) 601-1217 Facsimile (405) 601-1247 Attorneys for Petitioner

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TABLE OF CONTENTS AND AUTHORITIES

Page

INTRODUCTION, STANDARD OF REVIEW, AND ISSUES ................. 1

Jackson v. Jackson, 2002 OK 25 (Okla. 2002) . . . . . . . . . . . . . . . . . . . . . . . 1, 2

Johnson v. Johnson, 1983 OK 117,674 P.2d 539 (Okla. 1983) ............ 1

Samman v. Multiple Injury Fund, 2001 OK 715, (Okla. 2001) ............ 1,2

Stidham v. Special Indemnity Fund, 2000 OK 33, 10 P .3d 880) (Okla. 2000) . 1,2

Watkins v. Watkins, 2007 OK CIV APP 122 (Okla. Ct. App. 2007) .......... 1

PROPOSITION I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

THE TRIAL COURT ISSUED ORDERS DIRECTING TERMS OF A PROPOSED MEDIATION AGREEMENT BECOME FINAL ORDERS WITHOUT THE MEDIATION AGREEMENT BEING MUTUALLY PRESENTED FOR ENTRY BY THE PARTIES CONTRARY TO ESTABLISHED LAW.

Adams v. Adams, 2000 OK CIV APP 87, 11 P.3d 220 (Okla. Ct. App. 2000) 3

Scott v. Moore, 1915 OK 850, 52 Okla. 200, 152 P. 823 (Okla. 1915) ....... 4

PROPOSITION II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

THE TRIAL COURT ISSUED ORDERS DIRECTING TERMS OF A PROPOSED MEDIATION AGREEMENT BECOME TERMS OF THE PARTIES' FINAL DECREE WITHOUT HOLDING ANY EVIDENTIARY HEARING THEREON CONTRARY TO ESTABLISHED LAW.

Dickason v. Dickason, 1980 OK 24, 607 P.2d 674 (Okla. 1980). . . . . . . . . . . . 5

Hambright v. City of Cleveland, 1960 OK 184, 360 P .2d 493 (Okla. 1960) ... 1,2

In Re Lorice T. Wal/aceRevocable Trust, 2009 OK 34, 219 P.3d 536 (Okla.

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20~ ......................................................... 6

Okla. Tpk. Auth. v. Siegfried Cos., 2015 OK CIV APP 78 (Okla. Ct. App. 2015) 6

PROPOSITION Ill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

THE TRIAL COURT ISSUED ORDERS DIRECTING ALL OF THE TERMS OF A PROPOSED MEDIATION AGREEMENT BECOME THE TERMS OF THE PARTIES' FINAL DECREE WHILE ORDERING THAT AT LEAST ONE MATERIAL TERM BE SUBJECT TO MODIFICATION AND BE DETERMINED BY THE TRIAL COURT AT A SUBSEQUENT MINI-TRIAL CONTRARY TO ESTABLISHED LAW.

Russel v. Board of County Commissioner of Carler County, 2000 CIV APP 21, 1 P.3d 1142. (Okla. Ct. App. 2000) .................................. 7

Great Western Oil & Gas Company v. Mitchell, 1958 OK 68, 326 P.2d 794 (Okla.

1958) ......................................................... 8

Perry Journal Co. v. Shaw, 1951 OK 135,204 Okla. 479,231 P.2d 369. (Okla.

1951) ......................................................... 8

PROPOSITION IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

THE TRIAL COURT ISSUED ORDERS DIRECTING TERMS OF THE PROPOSED MEDIATION AGREEMENT BECOME TERMS OF THE PARTIES' FINAL DECREE WHEN THE MEDIATION AGREEMENT IS VOID FOR LACK OF MUTUAL ASSET.

Beck v. Reynolds, 1995 OK 83 (Okla. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Cimarron Pipeline Construction, Inc. v. United States Fidelity & Guaranty Ins. Co., 848 P.2d 1161 (Okla.1993) .................................... 9

Smalley v. Bond, 92 Okla. 178,218 P. 513 (Okla. 1923) ................. 9

Raffles v. Wichelhaus, 2 H. & C. 906, 159 Eng. Rep. 375 (Ex. 1864) ........ 9

PROPOSITION V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

ii


THE TRIAL COURT ISSUED ORDERS DIRECTING PAY AN ARREARAGE BASED UPON A PROPOSED MEDIATION AGREEMENT, WHEN SAID PAYMENTS WERE NEVER PART OF ANY COURT ORDER, TEMPORARY OR OTHERWISE, AND HAD NEVER BEEN ORDERED TO PAY SAID PAYMENTS.

Henry v. Schmidt, 2004 OK 34 (Okla. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . 11

PROPOSITION VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

THE TRIAL COURT IMPROPERLY DENIED 'S MOTION TO VACATE INTERLOCUTORY ORDER AND BRIEF IN SUPPORT OVER 'S MERITORIOUS RULE 4 OBJECTION.

Rule 4(e) of the Rules for District Courts, 12 O.S. Supp. 2009, ch. 2, app . ... 12

Spirgis v. Circle K Stores, Inc., 743 P.2d 682 (Okla. Ct. App. 1987) ........ 12

Liberty Bank & Trust Co. of Tulsa, N.A. v. Murray, 1996 OK CIV APP 39 (Okla. Ct. App. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Hedrick v. Comm'r of the Dep't of Pub. Safety, 2013 OK 98 (Okla. 2013) . . . 12

CONCLUSION ................................................ 14

CERTIFICATE OF SERVICE ..................................... 14

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) )

Petitioner, ) )

V. ) )

THE HONORABLE THAD BALKMAN ) )

Respondent )

BRIEF IN SUPPORT APPLICATION TO ASSUME ORIGINAL JURISDICTION AND

PETITION FOR WRIT OF MANDAMUS AND WRIT OF PROHIBITION

Petitioner, Clayton B. Walker ("Walker"), is the Respondent below in Cleveland

County Dissolution of Marriage Case . Christal Faith Snow ("Snow") is the

Petitioner below and real party in interest. Respondent is the Honorable Thad

Balkman, Judge of the District Court of Cleveland County, Oklahoma. Cleveland

County Case is pending before the Respondent.

The standard of review in an appeal of a dissolution action is one of equitable

cognizance, and" ... the trial court's judgment will be left undisturbed unless found to

be clearly against the weight of the evidence." Johnson v. Johnson, 1983 OK 117,674

P.2d 539, 1115, 544. The Oklahoma Supreme Court does not have authority to reverse

an order "absent an abuse of discretion, or a finding that the decision is clearly

contrary to the weight of the evidence." Watkins v. Watkins, 2007 OK CIV APP 122,

P4, 177P.3d 1114, 1116.

However, a question concerning the jurisdictional power of a trial court to act as

it did implicates a de novo standard of review. Jackson v. Jackson, 2002 OK 25, P2

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(Okla. 2002)(citing: Samman v. Multiple Injury Trust Fund, 2001 OK 71, P 8, 33 P. 3d

302, 305; Stidham v. Special Indemnity Fund, 2000 OK 33, P 10, 10 P. 3d

880)(emphasis added). Questions of law are reviewed de novo " ... which involves

a plenary, independent and non-deferential examination of a trial court's legal rulings."

Jackson v. Jackson, 2002 OK 25, P2 (Okla. 2002)(citing: Samman, at P 8, 33 P. 3d

at 305).

The issues in this appeal are primarily ones of law. Specifically, Petitioner

requests this Court determine:

1. Whether the Trial Court's order directing terms of a proposed mediation

agreement become the terms of the parties' final decree without the mediation

agreement being mutually presented to the Trail Court for entry is contrary to

law.

2. Whether the Trial Court's order directing terms of the proposed mediation

agreement become terms of the parties' final decree, without holding an

evidentiary hearing thereon whereby the trial court may determine the same to

be fair, just, and reasonable, is contrary to law.

3. Whether the Trail Court's order directing all of the terms of the proposed

mediation agreement become the terms of the parties' final decree, while

entering orders contrary to the mediation agreement and ordering at least one

material term be subject to modification and be determined by the Trial Court

at a subsequent mini-trial, is contrary to law.

4. Whether the Trial Court's order directing terms of the proposed mediation

agreement become terms of the parties' final decree when the mediation

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5.

6.

agreement is void for lack of mutual assent is contrary to law.

Whether the trial court's order directing respondent below pay an arrearage

based upon a proposed weekly payment figure that was only part of a proposed

mediation agreement, when said payments were never ordered to be made by

the Trial Court by temporary or otherwise, is contrary to law.

Whether the trial court's denial of the Walker's Motion to Vacate Interlocutory

Summary Order and Brief in Support over Walker's Rule 4 Objection is contrary

to law.

PROPOSITION I: THE TRIAL COURT ISSUED ORDERS DIRECTING TERMS OF A PROPOSED MEDIATION AGREEMENT BECOME FINAL ORDERS WITHOUT THE MEDIATION AGREEMENT BEING MUTUALLY PRESENTED FOR ENTRY BY THE PARTIES CONTRARY TO ESTABLISHED LAW.

In Oklahoma, "the parties to a divorce case may attempt to negotiate a

settlement of their affairs. If they do that, reach a mutual agreement, and present it to

the court, its terms and conditions may be considered by the court. However, such an

agreement is not binding on the court." Adams v. Adams, 2000 OK CIV APP 87, 11

P.3d 220 (2000)(emphasis added). The language of the Adams' Court clearly states

that the parties must, after reaching an agreement, iointlv submit it to the court. Id.

Walker submits that this agreement was not mutually submitted to the trial court

for entry. Snow, in her Second and Third Motion to Enter and Motion for Temporary

Attorney's Fees makes it abundantly clear that Snow now believed the mediation

agreement, reached some seven (7) months prior to the October 21 st hearing date,

was no longer acceptable, stating: " ... she can no longer accept the Decree as

equitable in nature to her and cannot agree to the terms within it. Clearly the Snow did

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not, by Motion or otherwise, seek the enforcement of any mediation agreement or the

integration of the same within any final decree. The mediation agreement and the

terms therein should be held for naught and this Honorable Court should issue a writ

of mandamus directing the trial court to vacate the same.

"An attorney has no authority to compromise a matter in his hands as attorney,

without the specific authority of his client. Any settlement so made is without

authority of law and void; and, where the client denies that the attorney was given

authority to compromise such claim, the burden is upon the attorney to show by a

preponderance of the evidence that he was given such authority ... " Scott v. Moore,

1915 OK 850, P 1, 52 Okla. 200, 152 P. 823, 824. (Emphasis added).

It is fact, seven (7) months prior to the hearing here at issue, Walker and Snow

did enter into and sign a proposed mediation agreement. However, after multiple

rescissions of Snow and after realizing that neither prospective contracting party

understood the terms of the proposed mediation agreement as did the other, Walker

considered the agreement void, as does Oklahoma law. In abundance of caution, in

the event the agreement was not properly deemed void, Walker made clear his mutual

rescission to his then Attorney of Record and to the Trial Court.

Walker did not, atthe October 21st, 2015 hearing, wish to present any mediation

agreement for entry. Walker, on the 21 st day of October 2015 and on several

occasions before, made it clear to attending Counsel that he no longer wished to

submit the stale mediation agreement, openly objecting to the entry of the same as

clearly evidenced by the record. It is clear that neither party sought to present the

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prior mediation agreement for entry atthe October 21 st hearing and it is clear the same

was not mutually presented to the trial court for entry, therefore, this Honorable Court

should issue a writ of mandamus directing the Trial Court vacate the orders of the Trial

Court which ordered terms of the mediation agreement be the terms of the Parties'

Decree.

PROPOSITION II: THE TRIAL COURT ISSUED ORDERS DIRECTING TERMS OF A PROPOSED MEDIATION AGREEMENT BECOME TERMS OF THE PARTIES' FINAL DECREE WITHOUT HOLDING ANY EVIDENTIARY HEARING THEREON CONTRARY TO ESTABLISHED LAW.

The Oklahoma Supreme Court has also held that "a settlement agreement is

not enforceable, absent its approval by the court. It shall not be approved unless it is

fair, just and reasonable." Dickason v. Dickason, 1980 OK 24, 607 P.2d 674. Pre

divorce property settlements and settlement agreements are not enforceable absent

their affirmative approval by the court. Id. Because the validity of the agreement is in

question, and the Court must determine whether the settlement is fair, just and

reasonable, the Court must have an evidentiary hearing on the matter. ld.(emphasis

added).

The Court must determine whether the terms of the mediation agreement, in

toto, are fair, just, and reasonable. The Court must have an evidentiary hearing on the

matter so that this Honorable Court may do so. The hearing of the 21 st day of October

was to be a hearing on Snow's Motion, the response thereto, and nothing more.

Although testimony was apparently taken, not a single trial exhibit was entered

into the record. At this stage in this case, exhibit lists have not been exchanged,

witness lists have not been exchanged, reasonable discovery has not been conducted,

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and the Parties did not approach the hearing of the 21 st day of October prepared to

present proper evidence to the Court. This Court was not presented proper evidence

whereby it could determine if the terms of the mediation agreement entered into seven

(7) months prior and now clearly in dispute, were fair, just, or reasonable considering

the entirety of the marital estate and issues of separate property. This Trial Court is

required to hear such evidence. Id.

In this case, at issue is determination of the existence of a common law

marriage, identification of a plethora of separate and marital property, the character

and disposition of which has not been duly determined by the Trial Court. The Trial

Court was not provided a comprehensive evidentiary image of the assets at issue.

Counsel for Snow referenced multiple documents, yet, not a single exhibit was entered

within the record.

Oklahoma has long recognized the trial court has the inherent power to "control

its own docket, that courts are created for the purpose of administering justice under

the law, and that to accomplish that purpose a court must have the power to facilitate

and expedite causes before ii so long as the reasonable exercise of these inherent

powers do not prejudice the rights of the parties involved." Okla. Tpk. Auth. v.

Siegfried Cos., 2015 OK CIV APP 78, P22 (Okla. Ct. App. 2015)(Citing: In re Lorice

T. Wallace Revocable Trust, 2009 OK 34, 219 P.3d 536, 538; Hambright v. City of

Cleveland, 1960 OK 184, 1] 15,360 P.2d 493,496).

The rights of Walker will most certainly be prejudiced in this instance if

corrective action is not taken post haste. Walker appeared for the October 21 st hearing

believing the Trial Court would hear the issues relating to the issuance of a scheduling

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order and temporary attorney's fees. The Court heard testimony of the parties

regarding the ability of the Walker to pay temporary attorney fees to his adversary and

heard testimony related to an alleged improper termination of Snow's employment at

Walker's businesses. No other testimony was taken or heard. At the conclusion of

testimony, the Trial Court entered an Order enforcing the terms of the Parties' stale

mediation agreement, yet also entered orders contrary to the specific terms of the

mediation agreement, again the very same agreement that Snow stated, "she can no

longer accept the Decree as equitable in nature to her and cannot agree to the terms

within it."

Walker's prior Counsel did not appear prepared to present proper evidence to

the Court and specifically asked for a continuance if the Court was going to hold a trial.

Apparently, neither did opposing counsel, as NO exhibits were entered within the

record.

Walker prays this Honorable Court assume original jurisdiction, issue a writ of

mandamus directing the Honorable Judge Balkman vacate the orders of the 21 '1 day

of October 2015 and of the 17th day of December 2015 and direct the Trial Court to

enter a scheduling order so that an evidentiary hearing be had as to all of the issues

related to the underlying action.

PROPOSITION Ill: THE TRIAL COURT ISSUED ORDERS DIRECTING ALL OF THE TERMS OF A PROPOSED MEDIATION AGREEMENT BECOME THE TERMS OF THE PARTIES' FINAL DECREE WHILE ORDERING THAT AT LEAST ONE MATERIAL TERM BE SUBJECT TO MODIFICATION AND BE DETERMINED BY THE TRIAL COURT AT A SUBSEQUENT MINI-TRIAL CONTRARY TO ESTABLISHED LAW.

A settlement agreement entered into between parties is a contract. Russel v.

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Board of County Commissioner of Carter County, 1 P.3d 1142, 2000 CIV APP 21.

"The law will not make a better contract for parties than they themselves have seen fit

to enter into, or alter it for the benefit of one party and to the detriment of the others;

the judicial function of a court of law is to enforce a contract as it is written." Great

Western Oil & Gas Company v. Mitchell, 1958 OK 68, 326 P.2d 794; see also: Perry

Journal Co. v. Shaw, 1951 OK 135, 204 Okla. 479, 231 P.2d 369.

Even if a proposed mediation agreement had been mutually presented to the

court as required by Oklahoma law and it was not, even if an evidentiary hearing was

held whereby the trial court determined that the terms of a proposed mediation

agreement were fair, just, and reasonable as required by law and it was not, a trial

court may not rewrite the mediation agreement by enforcing certain terms of the

agreement but modifying others, supplanting material terms with terms left open for

judicial determination.

The Trial Court has ordered that all terms of a proposed mediation agreement

become the terms of the Parties' final decree except for a term which provided Walker

pay Snow $350.00 per week in alimony in lieu of property division and a term related

to payment of attorney's fees. The trial court has directed that the frequency of

alimony payments be determined attrial on January 15th, 2016. Snow is requesting the

Trial Court impose a payment schedule that would include payments of as much as

$3,500.00 per month. It is possible that the Trial Court will order Walker to pay well

more than $350.00 per week in alimony in lieu of property division. If presented with

such an agreement in toto at any mediation event, it is certain that Walker would not

have assented to the same. In addition, the Trial Court has directed Walker pay

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$3,000 in attorney fees to Snow in direct conflict with another material term of the

proposed mediation agreement.

Causing all material terms of a mediation agreement become the terms of the

Parties' Decree of Dissolution, while changing material terms of the agreement is the

equivalent of the Court re-writing the contract of the Parties which the Trial Court, by

well established Oklahoma law, is not permitted to do.

Walker prays this Honorable Court-assume original jurisdiction, issue a writ of

prohibition directing that the Trial Court may not enforce the mediation agreement and

issue a write of mandamus directing the Trial Court hold a trial on all issues as required

by Oklahoma law.

PROPOSITION IV: THE TRIAL COURT ISSUED ORDERS DIRECTING TERMS OF THE PROPOSED MEDIATION AGREEMENT BECOME TERMS OF THE PARTIES' FINAL DECREE WHEN THE MEDIATION AGREEMENT IS VOID FOR LACK OF MUTUAL ASSET.

"In order to have a valid contract there must be mutual consent, or a meeting

of the minds." Beckv. Reynolds, 1995 OK 83, P11-P12 (Okla. 1995)(citing: Okla. Stat.

tit. 15, §§ 2, 66 (1991); Cimarron Pipeline Construction, Inc. v. United States Fidelity

& Guaranty Ins. Co., 848 P.2d 1161, 1164 (Okla. 1993); Smalley v. Bond, 92 Okla.

178, 218 P. 513, 515 (Okla. 1923)). Normal contract defenses, as with any valid

contract, are available to either party of a settlement agreement. Id.

"The consent of the parties must be mutual, and consent is not mutual unless

the parties all agree upon the same thing in the same [sense]." Smalley, 218 P. at 515;

Raffles v. Wichelhaus, 2 H. & C. 906, 159 Eng. Rep. 375 (Ex. 1864). Because these

parties did not "agree upon the same thing in the same sense," there was no mutual

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assent, and therefore no contract.

In this case, it is clear from the pleadings the terms of the mediation agreement

were understood by each party to have different meanings. Snow set forth that her

understanding of the mediation agreement was that the agreement was contingent

upon her continued employment at Walker's business at a salary of $1,000.00 per

week. No such term exists in the mediation agreement, but that is Snow's

understanding as expressly stated by Snow. Snow immediately rescinded her assent

to the mediation agreement. Walker did not agree with Snow's understanding of the

agreement and understood the agreement to contain only the mutual promises

contained thereon. Walker's understanding of the stale, rescinded, and void

agreement was not the same as Snow's. Clearly, these parties did not agree upon the

"'same thing in the same sense"' and the same renders the Parties' Mediation

Agreement void. Thus, there was no contract. Id. The Mediation Agreement at issue

is not a valid contract, is to be construed as void not merely voidable, does not bind

these Parties, and the Summary Order of October 21 st should be vacated.


mandamus directing the Trial Court to vacate the Orders of October 21, 2015 and

December 1 rh, issue a writ of prohibition directing that the Trial Court may not enforce

the mediation agreement and issue a write of mandamus directing the Trial Court hold

a trial on all issues as required by Oklahoma law.

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PROPOSITION V: THE TRIAL COURT ISSUED ORDERS DIRECTING WALKER PAY AN ARREARAGE BASED UPON A PROPOSED MEDIATION AGREEMENT, WHEN SAID PAYMENTS WERE NEVER PART OF ANY COURT ORDER, TEMPORARY OR OTHERWISE, AND WALKER HAD NEVER BEEN ORDERED TO PAY SAID PAYMENTS.

"Indirect contempt is the willful disobedience of any process or order lawfully

issued or made by the court. The punishment for indirect contempt may be remedial

to coerce the defendant's behavior, or it may be penal to punish the defendant for

disobedient or disorderly behavior. The legislature has provided for a fine and

imprisonment as punishment for both direct contempt and indirect contempt." Henry

v. Schmidt, 2004 OK 34, 1 (Okla. 2004).

In this case, Walker has been cited for non-compliance with an unlawful and

improper order of the Trial Court entered on October 21•1, 2015. Said Order

commanded Walker to pay certain unpaid alimony in lieu of property division payments

as per the terms of the stale, void, rescinded, and unenforceable proposed mediation

agreement. Ironically, Snow is citing Walker for contempt for allegedly violating the

mediation agreement that she has repeatedly asserted she no longer agreed with.

The voluntary mediation took place on March 25th, 2015 and the terms of said

agreement had not, at any time prior to the October 21•', 2015 hearing, been adopted

by Order of the Trial Court, temporary order or otherwise. Indirect contempt is the

"willful disobedience of any process or order lawfully issued or made by the court."

/d.(emphasis added).

In this case, at the very least, there were no court ordered alimony in lieu of

property division payments ordered to occur between the March 25th, 2015 mediation

event and the October 21 st, 2015 hearing. At that hearing and not before, the Trial

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Court improperly adopted the terms of the mediation agreement as the terms of the

Parties Dissolution, therefore, there can be no arrearage, and Walker cannot be held

in contempt for failing to abide by an Order of the Court that did not yet exist.

If Walker is tried for indirect contempt on February 1'\ 2016 as scheduled, his

options will include either paying over funds of which he has no obligation to pay or

face the coercive power of the Trial Court.


prohibition directing that the Trial Court to strike the contempt trial, and issue a writ of

mandamus directing the Trial Court hold a trial on all issues as required by Oklahoma

law.

PROPOSITION VI: THE TRIAL COURT IMPROPERLY DENIED WALKER'S MOTION TO VACATE INTERLOCUTORY ORDER AND BRIEF IN SUPPORT OVER WALKER'S MERITORIOUS RULE 4 OBJECTION.

Rule 4 of the Rules for the District Courts of Oklahoma governs motions. Rule

4 states in part that "[a]ny party opposing a motion, except those enumerated in

Section c above, shall serve and file a brief or a list of authorities in opposition within

fifteen (15) days after service of the motion, or the motion may be deemed confessed."

Rule 4(e) of the Rules for District Courts, 12 O.S. Supp. 2009, ch. 2, app. (Emphasis

added). Motions to Vacate are not among those enumerated in Section 4(c) and

therefore require a response in opposition or risk being deemed confessed. Id.

" ... [A]ccording to Spirgis v. Circle K Stores, Inc., 743 P.2d 682 (Okla. Ct. App.

1987) (approved for publication by the Supreme Court), a court must review the motion

on its merits before granting a motion for failure to respond. The court stated that if a

motion "is not well-taken, the failure of the opposing party to respond does not mean

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that the motion must be granted by the court." Id. at 684. The Court must determine

whether a legal basis exists to support the motion. Liberty Bank & Trust Co. of Tulsa,

N.A. v. Murray, 1996 OK CIV APP 39, P6 (Okla. Ct. App.)(discussing: Spirgis v. Circle

K Stores, Inc., 743 P.2d 682 (Okla. Ct. App. 1987).

A trial by ambush occurs "because neither side knows with certainty what the

other will argue or what evidentiary materials they will produce." Hedrick v. Comm'r of

the Oep't of Pub. Safety, 2013 OK 98, P10 (Okla. 2013). "Due process is applicable

to the District Court proceeding and each party is entitled to know what is being tried

... " Id. "One reason for this is that a party must know what issues will be tried prior

to the trial." Id.

In this case, Snow did not file a written response to Walkers Motion to Vacate

Interlocutory Summary Order and Brief in Support as Rule 4 commands. Unlike prior

versions of Rule 4 which commanded that motions to which a timely and proper

response was not filed "shall" be deemed confessed, the Trial Court now has

discretion when deciding whether to deem such a motion confessed.

It is Walker's position that discretion was made a component of Rule 4 to avoid

the granting of motions that "did not contain a sufficient legal basis to support the

motion." Liberty Bank & Trust Co. of Tulsa, N.A. v. Murray, 1996 OK CIV APP 39, P6

(Okla. Ct. App.). It is Walker's position that discretion was not made a component of

Rule 4 so that litigants in opposition and the district court's may ignore Rule 4 and its

commands.

Snow, through her attorney of record Samuel Talley asserted " ... there is no

mandate in the law that I must respond in writing on behalf of my client. .. and I'm

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here, in the room, making arguments and defendant the motion, which is all that's

really required." When overruling Walker's Rule 4 objection, the Respondent herein

pronounced: "That's why we made a record of the oral argument Mr. Talley presented

today." Snow's Counsel of Record, Mr. Talley misstates the law and Respondent has

misapplied the law.

Snow did not file a written response complete with citations to authority in

opposition of Mr. Walker's Motion as commanded by Rule 4 of the District Courts of

Oklahoma. Due process is applicable to District Court proceedings and each party is

entitled to know what arguments in opposition may be propounded so that rebuttals

may be prepared, citations may be verified, and interpretations of law scrutinized.

Snow failed to timely file a motion in opposition as required.

Mr. Walker's Motion set forth several meritorious legal basis in support of his

Motion. It is not sufficient that Mr. Talley appeared and orally objected. It is not

sufficient that a record memorializing oral argument was made. Mr. Walker's Motion

should have properly been deemed confessed.


mandamus directing that the Trial Court to grant the Motion to Vacate and issue a writ

of mandamus directing the Trial Court to hold a trial on all issues as required by

Oklahoma law.

CONCLUSION

The Respondent in this action has violated well established law regarding

enforcement of the parties' mediation agreement. Despite both parties declaring in

open court that they no longer wish to be held to the mediation agreement, the

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Respondent, without hearing sufficient evidence, ordered the mediation agreement to

be valid, enforceable and fair. In the same breath, the Trial Court modified material

terms of the mediation agreement and set a trial to further modify a specific term of the

mediation agreement. Due to the unlawful actions of the Trial Court, Walker stands

at risk to lose his property, but more importantly, is liberty. Walker prays this Court

assume original jurisdiction, issue a writ of prohibition preventing such action and issue

a writ of mandamus directing the Trial Court hold an evidentiary hearing on the merits

of this matter as requested by the parties.

WHEREFORE, the Petitioner, Clayton B. Walker requests this Court assume

original jurisdiction and issues orders as prayed above.

Page 15

Tr c· . Soderstrom, #19945 M A homas, #32277 Law Office of Traci L. Soderstrom, P.C. Attorneys for Petitioner 601 S. Sunnylane Road Del City, OK 73115 Telephone (405) 601-1217 Facsimile (405) 601-1247 [email protected] [email protected]

I I I I I I I I I I I I I I I I I J

I

CERTIFICATE OF SERVICE I certify that a true and correct copy of the Brief in Supporl of Application to

Assume Original Jurisdiction and Petition for Writ of Mandamus and Writ of Prohibition was mailed this l day of dJ½,~ , 2016, depositing the same in the U.S. Mails, postage pre-paid to: ~

Samuel L. Talley 219 East Main Str Norman, OK 73069 Attorney for Petitioner,

and a copy of the same was delivered in hand to:

The Honorable Judge Thad Balkman

Page 16

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ORIGINAL I #11458 7 I · i i i i i i i i i i i i i i original #11458 7 11111 if 11111111111111 iii 11111111111111/ii iii 1111 •_1 d 2 d 5 3 1 7 8 _ 1 • in the supreme court of