Circuit Court Found No Copyright Infringement in Directory Case

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Following are summaries of recent local and 10th Circuit opinions. Oklahoma Supreme Court

For the week ending Jan. 27, 1998 Ted Mittelstaedt et al. vs. Santa Fe Minerals, Inc., No. 84,977. Corrected dissenting opinion by Justice Opala. In determining royalty obligations, Court should employ first- marketable product analysis in which 1) royalty would be paid on price lessee obtained or could have obtained for sale of first- marketable form of gas and 2) point of first-marketability is question of fact rather than question of law. If marketing point is not in vicinity of well, actual and reasonable transportation costs may be deducted from royalty paid to lessor. In the Matter of the Estate of Lorita J. Sneed et al. vs. Michael Jestes, No. 86,054. District court's decision to incorporate exhibit by reference to decedent's earlier-admitted will was not against clear weight of evidence. Also, res judicata did not bar person, who sought severance of exhibit from probate court's consideration, from later seeking to incorporate exhibit into will. District court's order bifurcating will was not final judgment on merits, thus res judicata did not apply. Moreover, district court's refusal to conduct new hearing determining whether will was product of undue influence did not deny contestant due process. In the Matter of the Estate of Lorita J. Sneed et al. vs. Michael Jestes, No. 86,054. Concurring opinion by Justice Watt, joined by Vice Chief Justice Summers. Court should revisit issue of giving effect to Okla. Const. Art. 7 section 7, which eliminated county courts (where probate jurisdiction had been vested) and placed plenary jurisdiction in district courts. Pursuant to Wilson v. Kane, 1993 OK 65, 852 P.2d 717, district court judge, sitting in probate matter, transferred exhibit to chief judge of district court to determine if trust might have been an intervivos trust. Under the constitution, judge in probate matter had jurisdiction to interpret trust whether it was testamentary, intervivos, or a combination. Giving proper effect to section 7 would eliminate unnecessary practice of two judges of same district court interpreting a single trust. Dissent states that facts of case do not support trial court's decision to apply doctrine of incorporation by reference because language of will did not contain language of incorporation. Moreover, it is arguable that res judicata did apply because court order admitting will to probate without exhibit attached was final in that regard and not appealed. Frank W. Davis et al. vs. Dan H. Fieker et al., No. 88,420. Supplemental opinion on rehearing. Court's opinion is modified by adding to text that this cause stands remanded, a) for inquiry into parties' claim that Board of Health regulations, promulgated in 1979 under authority of 63 O.S. 1991, section 1-737, became ineffective in 1991; and if regulations' force did lapse, then for, b) consideration of plaintiffs' plea that Board of Health members be reinstated as parties defendant below; and issuance of a writ directing Board of Health commissioners to promulgate and enforce such rules and regulations as will implement, and be consistent with, opinion herein. Barbara E. Floyd vs. Honorable Carolyn R. Ricks et al., Nos. 89,588, 89,865 and 89,987. In Floyd vs. Ricks, case no. 89,588, defendant's petitions for rehearing of Court's July 9, 1997 order and plaintiff's motion for attorney's fee were both denied. In Floyd vs. Ricks, case no. 89,865, plaintiff's application to assume original jurisdiction and to receive writ of mandamus directing respondent judge to obey Court's July 9th order were granted. In Floyd vs. Geico, case no. 89,987, plaintiff's appeal of order granting summary judgment in favor of defendant was reversed. Oklahoma Court of Civil Appeals For the week ending Jan. 27, 1998 Gary L. Osburn vs. Special Indemnity Fund, No. 88,934. Workers Compensation Court erred in ruling that plaintiff's injury to his right hand was res judicata for failing to raise the issue in earlier claim against Fund. …


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