453 P.3d 525 (Okla.Civ.App. 2019), 117,455, Helm v. Board of County Commissioners of Rogers County

Docket Nº:117,455, 117,344
Citation:453 P.3d 525, 2019 OK CIV APP 68
Opinion Judge:BRIAN JACK GOREE, CHIEF JUDGE
Party Name:Michael Earl HELM, a.k.a. Mike Helm, Petitioner/Appellant, v. BOARD OF COUNTY COMMISSIONERS OF ROGERS COUNTY, Oklahoma, Respondent/Appellee.
Attorney:Stanley D. Monroe, Ann E. Keele, MONROE & KEELE, PC, Tulsa, Oklahoma, for Petitioner/Appellant, Benjamin Lepak, Assistant District Attorney, Claremore, Oklahoma, for Respondent/Appellee.
Judge Panel:JOPLIN, P.J., and BUETTNER, J., concur.
Case Date:October 21, 2019
Court:Court of Appeals of Oklahoma, Court of Civil Appeals of Oklahoma
 
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Page 525

453 P.3d 525 (Okla.Civ.App. 2019)

2019 OK CIV APP 68

Michael Earl HELM, a.k.a. Mike Helm, Petitioner/Appellant,

v.

BOARD OF COUNTY COMMISSIONERS OF ROGERS COUNTY, Oklahoma, Respondent/Appellee.

Nos. 117,455, 117,344

Court of Civil Appeals of Oklahoma, Division No. 1

October 21, 2019

Mandate Issued: 11/14/2019

THIS OPINION HAS BEEN RELEASED FOR PUBLICATION BY ORDER OF THE COURT OF CIVIL APPEALS, Division 1

Page 526

APPEAL FROM THE DISTRICT COURT OF ROGERS COUNTY, OKLAHOMA; HONORABLE M. JOHN KANE, JUDGE

Stanley D. Monroe, Ann E. Keele, MONROE & KEELE, PC, Tulsa, Oklahoma, for Petitioner/Appellant,

Benjamin Lepak, Assistant District Attorney, Claremore, Oklahoma, for Respondent/Appellee.

OPINION

BRIAN JACK GOREE, CHIEF JUDGE

[¶1] Michael Earl Helm (Petitioner/Appellant) was suspended from his office as County Commissioner of Rogers County, Oklahoma. Afterward, he wrote a letter to the Board of County Commissioners of Rogers County (Respondent/Appellee) demanding back pay and benefits from the date of the suspension. The Board denied his request. Helm commenced an action in Rogers County asking the district court to issue an alternative writ of mandamus requiring Board to pay his salary, benefits, and interest in the performance of its duty pursuant to 19 O.S. § 153.

[¶2] The Board argued Helm’s claim is barred by the Oklahoma Governmental Tort Claims Act because he did not comply with its notice provisions. The trial court agreed and granted the Board’s motion to dismiss for failure to state a claim. 12 O.S. § 2012(B)(6). Helm appealed. He argues the dismissal was erroneous because his action requests an extraordinary writ of mandamus and the GTCA does not apply. We review the order de novo because a motion to dismiss tests the law governing a claim. Dani v. Miller, 2016 OK 35, ¶10, 374 P.3d 779, 785-86. The legal question is whether Petitioner’s claim is a tort within the meaning of 51 O.S.Supp. 2014 § 152(14).

[¶3] "Tort" is defined by the GTCA as: A legal wrong, independent of contract, involving violation of a duty imposed by general law, statute, the Constitution of the State of Oklahoma...

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