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Myers v. Myers

Court of Appeals of Oklahoma, Division II

April 24, 2017

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,

          Mandate Issued: 06/06/2018


          Debra W. McCormick, MCCORMICK & BRYAN, PLLC, Edmond, Oklahoma, for Plaintiffs/Appellees Danny Bob Myers, Curtis Mark Myers and Walter Kent Myers

          J. John Hager, Jr., ELIAS, BOOKS, BROWN & NELSON, P.C., Oklahoma City, Oklahoma, for Defendant/Appellant Larry Steve Myers

          Ken Felker, Edmond, Oklahoma, for Defendant/Appellant Guy Jackson

          R. Stephen Haynes, LAW OFFICES OF R. STEPHEN HAYNES, Oklahoma City, Oklahoma, for Defendant Appellant Richard Franklin Myers


         ¶1 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.


         ¶2 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 firm.

         ¶3 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). [1]

         ¶4 Curtis Mark Myers (Mark) filed the first case. [2] He charged Steve and Jackson with fraudulent transfer of trust property and exercise of undue influence. [3] He sought damages, an accounting and imposition of a constructive trust over Mother's trust's assets.

         ¶5 Danny Bob Myers (Bob) and Walter Kent Myers (Kent) filed the second case and twice amended their petition. [4] 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.

         ¶6 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 unjustly enriched.

         ¶7 After the trial court consolidated the cases, the defendants moved to disqualify plaintiffs' counsel. The premises for the motion are: [5]

- 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.

         ¶8 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. [6] Plaintiffs further argued that if a conflict existed, it was created by defendants when they succeeded in having the two cases consolidated.

         ¶9 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.

         ¶10 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 ill health.

         ¶11 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.

         ¶12 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 disqualification issue.


         ¶13 The appellate court determines whether an appeal is moot. In re Guardianship of Doornbos, 2006 OK 94, ¶ 2, 151 P.3d 126.

         ¶14 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.

         ¶15 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 ...

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