IN THE MATTER OF THE GUARDIANSHIP OF HAROLD S. WOOD, A Partially Incapacitated Person. VIRGINIA L. WOOD, Plaintiff/Appellant,
MARK LYONS, Defendant/Appellee.
Mandate Issued: 10/16/2019
FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE
KURT G. GLASSCO, TRIAL JUDGE
M. Ladner, Roger K. Eldredge, LADNER & ELDREDGE, PLLC,
Tulsa, Oklahoma, for Plaintiff/Appellant
R. Farris, FRANDEN | FARRIS | QUILLIN GOODNIGHT ROBERTS,
Tulsa, Oklahoma, for Defendant/Appellee
L. GOODMAN, JUDGE
Plaintiff Virginia L. Wood (Widow) appeals the trial
court's May 2, 2017, order denying her request to impose
a surcharge on Defendant Mark Lyons, (Guardian) who had
served as a Limited Guardian of Harold S. Wood, a partially
incapacitated person, now deceased (Ward). Widow contends
that upon his appointment, Guardian was obligated by 30
O.S.2001, § 4-709 (A), which defines the appropriate
types of investments in which a guardian may invest a
ward's money, to liquidate Ward's existing stock
portfolio, which was not compliant with § 4-709(A), and
use the resulting proceeds to re-invest in §
4-709(A)-approved investments. Widow contends Guardian's
failure to do so constituted a breach of fiduciary duty,
meriting a surcharge. The trial court found no breach of duty
occurred and denied the request for a surcharge. On this
first impression issue, based on our review of the facts and
applicable law, we affirm the order under review.
Guardian was temporarily appointed Special Limited Guardian
of Ward in an order filed July 11, 2007, and was later
appointed Limited Guardian, with both the order and letters
of limited guardianship being filed August 24, 2007.
At the time of Guardian's appointment, Ward was 84, in
poor health, and required round-the-clock professional
medical care. He lived with Widow and his medical staff, and
owned substantial assets. Guardian had been Ward's
attorney for at least 10 years prior to his appointment as
Ward's guardian. Guardian managed Ward's and
Widow's assets until Ward's death on January 7, 2012.
After Guardian filed a final account of Ward's estate on
October 12, 2012,  Widow objected to that accounting on
October 29, 2012. She requested Guardian be made subject to a
surcharge for allegedly breaching his fiduciary duties
relating to the handling of Ward's assets, and for
failure to timely file required reports., Widow claimed that
Guardian caused a financial loss to Ward by failing to
immediately liquidate Ward's existing, substantial stock
portfolio which contained volatile, individual blue-chip
stocks, and convert that portfolio into one consisting of the
approved bond funds set out in 30 O.S.2001, § 4-709 (A).
Widow also sought an order discharging Guardian as Limited
Guardian, and that he be denied a fee for his services.
Guardian filed a motion for summary judgment on April 25,
2014.  He argued § 4-709(A) did not
require him to liquidate the stock portfolio, and objected to
being discharged as Guardian. In a minute order filed August
6, 2014, the court, without comment, granted Guardian's
summary judgment on the issue of § 4-709(A), but removed
Guardian as Limited Guardian, at Widow's request.
, Guardian's letters of guardianship
were revoked, but Guardian was not discharged immediately,
and instead ordered to submit a final accounting before
September 11, 2014.  Substitute guardians for Widow were
appointed, as well as a substitute personal representative
for Ward's estate.
The surcharge and breach of fiduciary duty issues between the
parties continued until an evidentiary hearing was held over
several days in November, 2016. On May 2, 2017, the trial
court filed an order containing extensive and detailed
findings of fact and conclusions of law.  The trial court
denied Widow's motion to surcharge Guardian, finding that
he met the standard of care in his handling of Ward's
assets and breached no fiduciary duties.  Widow
appeals this order.
In re Estate of LaRose, 2000 OK CIV APP 33, ¶
5, 1 P.3d 1018, 1021, states:
Where a final account of a guardian is presented and
considered and surcharges made and disallowed, and thereafter
an appeal is taken, the matter will be considered as an
appeal from an equity judgment and the surcharges made or
disallowed will be approved where such action is based on
competent evidence and not clearly against the weight of the
evidence. In re Guardianship of Durnell, 1967 OK 62,
434 P.2d 905. The judgment of the trial court in a settlement
of a guardian's account will not be disturbed unless
against the weight of the evidence. Pruitt v.
Pilgreen, 178 Okl. 608, 64 P.2d 263 (1936).
The central issue in this case is a dispute between Widow and
Guardian over Guardian's management of Ward's
substantial stock portfolio. Widow's brief-in-chief
alleges the trial court committed errors of law and erred in
its interpretation and application of certain undisputed
facts to the law. With certain limited exceptions, Widow does
not allege the trial court's findings of fact are
erroneous; rather, she argues those facts support a different
conclusion than that made by the trial court, resulting in
trial court error. Therefore, after determining if they are
supported by competent evidence, we will cite the applicable
findings of fact in addressing each issue on appeal.
Guardian Required to Liquidate Ward's Stock Portfolio by
Operation of 30 O.S.2001, § 4-709 (A)?
Widow presents a first impression question of law. Questions
of law mandate application of the de novo standard
of review, which affords this Court with plenary,
independent, and non-deferential authority to examine the
issues presented. Martin v. Aramark Servs., Inc.,
2004 OK 38, ¶ 4, 92 P.3d 96, 97; Kluver v.
Weatherford Hosp. Auth., 1993 OK 85, ¶ 14, 859 P.2d
The resolution of this issue requires the interpretation of
the statute in effect when Guardian was first appointed as a
limited guardian, i.e., 30 O.S.2001, § 4-709.
Except as may be otherwise provided by law, the
money belonging to estates of minors and
incapacitated or partially incapacitated persons, subject to
the jurisdiction of the court, can only be invested
in one or more of the following:
1. Real estate and first mortgages upon real property which
do not exceed fifty percent (50%) of the actual value of the
2. United States bonds, or any other type of security
certificate, or evidence of indebtedness which is guaranteed
by the United States government, or any authorized agency
3. State bonds;
4. Bonds of municipal corporations;
5. Annuities covered by the Oklahoma Life and Health
Insurance Guaranty Association, which do not exceed Three
Hundred Thousand Dollars ($300,000.00), individually; or
6. Accounts in savings and loan associations and credit
unions located in this state, and all types of
interest-bearing time deposits and certificates of banks,
savings and loan associations, and credit unions located in
this state, not to exceed the amount insured by the United
§ 4-709(A) (emphasis added). 
At the time of Guardian's appointment as a limited
guardian, the trial court found:
23. In August 2007, [Ward's] Smith Barney stock portfolio
had a gross value of a little over $6 million with a margin
debt of $2,170,000. The net value of the account as of August
31, 2007, was $3,924,939.74.
24. The account was made up of 100% equities/stocks. There
were no fixed-income assets, no CDs, and no T-bills. The
portfolio was weighted in energy stocks.
25. [Ward] had chosen the nature of his stock portfolio
being weighted 37% to energy stocks over a period of 52
undisputed that Ward's portfolio did not consist of any
of the six investment categories set out in § 4-709(A).
Widow contends that upon Guardian's appointment, he was
obligated by § 4-709(A) to immediately liquidate the
Smith Barney stock portfolio in order to rid it of non-§
4-709(A)-sanctioned investments, and use the proceeds of that
sale to purchase a portfolio that complied with §
4-709(A)'s list of approved investments. In support of
this argument, Widow cited Freeman v. Prudential Sec.,
Inc., 1993 OK CIV APP 65, 856 P.2d 592, for its
proposition that "Guardians... were limited in the
investments they could make for their wards, pursuant to...
§ 4--709." Id. at ¶ 10, at 594.
 Widow argues that by not
reconfiguring the volatile, stock-heavy portfolio into the
statutorily-authorized, relatively stable, investments, Ward
suffered unnecessary and preventable losses during the
2007-2008 stock market turmoil that soon followed.
 Widow contends Guardian should bear
responsibility for those losses and be surcharged.
Guardian contended he was under no obligation to liquidate an
existing stock portfolio and reinvest the proceeds to conform
to § 4-709's guides. Instead, he argued he was only
obligated to follow § 4-709 if he possessed money
belonging to Ward which he intended to use to purchase future
investments on Ward's behalf. Guardian argued that to
immediately liquidate the holdings would have subjected
Ward's estate to further losses. Moreover, selling the
"blue-chip" stocks during a time in which their
values were already temporarily depressed would result in
enormous capital gains taxes. This would have significantly
depleted the amount of money available for Ward's future
use and care. 
The trial court found that, under these facts, §
4-709(A) did not require liquidation. We agree.
Analysis of § 4-709(A)
Section 4-709(A) states:
Except as may be otherwise provided by law, the
money belonging to estates of... incapacitated or
partially incapacitated persons, subject to the jurisdiction
of the court, can only be invested in one or more of
the following [six categories of investments]...."
The issue, as framed by the parties, turns on the definition
of "money." Widow contends the term
"money," as used in § 4-709(A), includes
Ward's stock holdings. She contends this section applies
whether "the Ward's approximately $4 million is
initially held in cash under the Ward's bed, deposited in
the Ward's checking account, or invested in the
Ward's stock account."  Widow argues that the
"term 'money' is not limited to just
'cash' or 'currency' but also includes
'gold and silver coin, treasury notes, bank notes and
other forms of currency in common use'" which an
owner could "withdraw in money on demand" citing
Mason v. State, 1923 OK CR 62, ¶ 18, 212 P.
1028, 2030.  Thus, upon his appointment, Guardian
was required to conform Ward's money, no matter the form,
and whether cash or stock certificate notwithstanding, into a
§ 4-709(A)-acceptable investment.
Guardian contends "money" is not the same as
"stock." Therefore, unless Guardian chose to use
Ward's money to invest in new holdings, § 4-709(A)
does not apply. Further, §4-709(A) does not compel
liquidation of existing stock holdings. Finally, Guardian
argues § 4-709(A) does not mandate investment of
Ward's money, but merely permits its optional investment,
though in a prescribed way. 
Our analysis must begin with established definitions of the
terms used in the statute. Unless specially defined, we use
the terms in their most common form.
In the absence of a contrary definition of the common words
used in the act, we must assume that the lawmaking authority
intended for them to have the same meaning as that attributed
to them in ordinary and usual parlance.
Riffe Petroleum Co. v. Great Nat. Corp., Inc., 1980
OK 112, ¶ 7, 614 P.2d 576, 579 (footnote omitted).
Further, In Applications of Oklahoma Turnpike
Authority, Okl., 277 P.2d 176, 182, we said:
'The general rule is that all legislative enactments must
be interpreted in accordance with their plain ordinary
meaning according to the import of the language used. See
Loeffler v. Federal Supply Company, 187 Okl. 373,
102 P.2d 862.' See also City of Duncan ex rel. Board
of Trustees of Police Pension and Retirement System v.
Barnes, Okl., 293 P.2d 590.
W. S. Dickey Clay Mfg. Co. v. Ferguson Inv. Co.,
1963 OK 298, ¶ 19, 388 P.2d 300, 304. Finally,
To ascertain intent, the Court looks to the language of the
pertinent statute(s) and presumes the legislative body
intends what it expresses. Where a statute's language is
plain and unambiguous, and the meaning clear and
unmistakable, no justification exists for the use of
interpretative devices to fabricate a different meaning.
Terms in a statute are given their plain and ordinary
meaning, except when a contrary intention plainly appears,
and the words of a statute should generally be assumed to be
used by the law-making body as having the same meaning as
that attributed in ordinary and usual parlance. Neer v.
Oklahoma Tax Comm'n, 1999 OK 41, ¶¶
15--16, 982 P.2d 1071, 1078.
First United Bank & Tr. Co. v. Wiley, 2008 OK
CIV APP 39, ¶ 13, 183 P.3d 1022, 1026--27.
Section 4-709(A) is part of the Oklahoma Guardianship and
Conservatorship Act, 30 O.S.2011 and Supp. 2017, §§
1-101 through 6-102 (OGCA). We begin there for definitions.
Generally, the OGCA defines the terms "Manage financial
resources" or "manage the estate" as
"those actions necessary to obtain, administer, and
dispose of real property, business property, benefits and
income, and to otherwise manage personal financial or
business affairs." Id. at § 1-111(A)(17).
The OGCA defines "intangible personal property" as
"cash, stocks and bonds, mutual funds, money market
accounts, certificates of deposit, insurance contracts,
commodity accounts, and other assets of a similar
nature." Id. at § 1-111(A)(14). ...