DANNY BOB MYERS, an individual, and WALTER KENT MYERS, an individual, Plaintiffs/Appellees,
LARRY STEVE MYERS, individually and as CO-TRUSTEE of the PATTERSON REVOCABLE LIVING TRUST dated August 29, 2007; and GUY W. JACKSON individually and as TRUSTEE of the PATTERSON REVOCABLE LIVING TRUST dated August 29, 2007, Defendants/Appellants; CURTIS MARK MYERS, an individual, Plaintiff/Appellee,
LARRY STEVE MYERS, as CO-TRUSTEE of the PATTERSON REVOCABLE LIVING TRUST; and GUY W. JACKSON, TRUSTEE EXECUTOR of the PATTERSON REVOCABLE LIVING TRUST, Defendants/Appellants.
Mandate Issued: 06/06/2018
FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA
HONORABLE BARBARA J. SWINTON, TRIAL JUDGE
W. McCormick, MCCORMICK & BRYAN, PLLC, Edmond, Oklahoma,
for Plaintiffs/Appellees Danny Bob Myers, Curtis Mark Myers
and Walter Kent Myers
John Hager, Jr., ELIAS, BOOKS, BROWN & NELSON, P.C.,
Oklahoma City, Oklahoma, for Defendant/Appellant Larry Steve
Felker, Edmond, Oklahoma, for Defendant/Appellant Guy Jackson
Stephen Haynes, LAW OFFICES OF R. STEPHEN HAYNES, Oklahoma
City, Oklahoma, for Defendant Appellant Richard Franklin
This is an appeal from an Order of the trial court denying a
defendants' Motion to Reconsider the Order of the trial
court that denied defendants' Motion to Disqualify the
plaintiffs' attorney for conflict of interest. The
plaintiffs' attorney has moved to dismiss the appeal as
moot. The Supreme Court of Oklahoma deferred the decision on
dismissal to this Court.
This matter began as two cases. The trial court subsequently
consolidated the cases at the defendants' request. The
plaintiffs in both cases are represented by the same law
The cases involve charges by one brother in the first case
and by two other brothers in the second case against a fourth
brother, Larry Steve Myers (Steve), as co-trustee, and the
other co-trustee, Guy W. Jackson (Jackson), of a revocable
trust. The trust was created, and thereafter restated by the
brothers' Mother, Joanie Patterson (Mother).
Curtis Mark Myers (Mark) filed the first case.  He charged
Steve and Jackson with fraudulent transfer of trust property
and exercise of undue influence.  He sought damages, an
accounting and imposition of a constructive trust over
Mother's trust's assets.
Danny Bob Myers (Bob) and Walter Kent Myers (Kent) filed the
second case and twice amended their petition.  They charged
Steve and Jackson with breach of fiduciary duty, negligence
and conversion. They requested an accounting, surcharge and
removal of Jackson as co-trustee. In their Second Amended
Petition they named the fifth brother, Richard Franklin Myer
(Richard), because he is a named beneficiary of Mother's
Trust and thus a necessary party.
All defendants have answered and Jackson filed a counterclaim
against Kent in the second case. Jackson alleged that Kent
occupied a trust property without paying rent and has been
After the trial court consolidated the cases, the defendants
moved to disqualify plaintiffs' counsel. The premises for
the motion are: 
- Mark, in his lawsuit, and Bob and Kent in their lawsuit,
are seeking inconsistent reliefs which are adverse to each
other. According to the disqualification motion, Mark seeks
to declare the restated Trust null and void whereas Bob and
Kent seek to enforce the Trust.
- Plaintiffs' counsel is defending the counterclaim
against Kent. This counterclaim seeks to recover for the
benefit of the Trust, and thus its beneficiaries. Therefore,
representation of Kent is adverse to the interests of the
other brother beneficiary.
In response, plaintiffs denied any conflict and produced two
signed and one unsigned email by each plaintiff stating that
they were informed by counsel of "a possible conflict of
interest" and wished to retain counsel notwithstanding
any conflict.  Plaintiffs further argued that if a
conflict existed, it was created by defendants when they
succeeded in having the two cases consolidated.
The trial court denied the disqualification motion without a
hearing. Defendants moved to reconsider. The trial court held
a hearing where the parties submitted the waivers, legal
authority and arguments. The trial court reaffirmed its
denial of the Motion to Disqualify and this appeal followed.
Plaintiffs' counsel has moved to dismiss the appeal as
moot. The basis for this motion is that the first lawsuit,
the case filed by Mark, has been dismissed due to Mark's
Jackson and Steve (now appellants) then argue that an
attorney cannot defeat disqualification for conflict of
interest by dropping one client. They cited Flatt v.
Superior Court, 885 P.2d 950, 957-58 (Cal. 1994), and
other cases, for the "hot potato" rule that bars an
attorney from correcting a ground for disqualification by
severing the relationship with another client.
Jackson and Steve further argue that counsel also has a
conflict because of the representation of Kent on the Jackson
counterclaim. According to the argument, defending the
Jackson counterclaim against Kent is adverse to the interest
of Bob because Bob, as a beneficiary, has an interest in
recovering from Kent. Jackson and Steve maintain that the
appeal should proceed and address the issues of the adequacy
of the waivers, the need for an evidentiary hearing, and
whether there is a requirement for the trial court to enter
findings of fact and conclusion of law on the
The appellate court determines whether an appeal is moot.
In re Guardianship of Doornbos, 2006 OK 94, ¶
2, 151 P.3d 126.
This appeal arises from an Order denying a motion to
reconsider the trial court's Order denying a motion to
disqualify. When reviewing a motion to reconsider, which is
equivalent to a motion for new trial, this Court will not
disturb the trial court's determination in the absence of
abuse of discretion. Nu-Pro, Inc. v. G. L. Bartlett &
Co., Inc., 1977 OK 226, ¶ 5, 575 P.2d 620, 622;
Harlow Corp. v. Bryant Exploration and Production Co.,
Inc., 1991 OK CIV APP 80, ¶ 9, 816 P.2d 1154, 1155.
To reverse a trial court on the ground of an abuse of
discretion, it must be found that the trial court made a
clearly erroneous conclusion and judgment, against reason and
evidence. Here, this determination requires examination of
the underlying ruling on the motion to disqualify.
The Oklahoma Rules of Professional Conduct provide:
a) Except as provided in paragraph (b), a lawyer shall not
represent a client if the representation involves a
concurrent conflict of interest. A concurrent conflict of
interest exists if:
(1) the representation of one client will be directly adverse
to another client;
(2) there is a significant risk that the representation of
one or more clients will be materially limited by the
lawyer's responsibilities to another client , a former
client or a third ...