Tucker v. Cochran Firm-Criminal Def. Birmingham L. L.C.

Decision Date16 December 2014
Docket Number111,181.
Citation341 P.3d 673,2014 OK 112
PartiesChristopher L. TUCKER, Plaintiff/Appellant, v. The COCHRAN FIRM–CRIMINAL DEFENSE BIRMINGHAM L.L.C., a foreign limited liability company, Defendant/Appellee.
CourtOklahoma Supreme Court

Blake Sonne, Sonne Law Firm, P.L.C., Norman, Oklahoma, for Plaintiff/Appellant.

A. Scott McDaniel, McDaniel Acord, P.L.L.C., Tulsa, Oklahoma, for Defendant/Appellee.



¶ 1 This case involves a trial court's dismissal of an action based upon its determination that the action was not brought in the forum that was specified in the attorney-client written agreement. We hold that a party should utilize the 12 O.S. § 2012(B)(6) /summary judgment procedure when that party seeks to dismiss an Oklahoma proceeding based upon an alleged contractual right of interstate venue selection. The matter is remanded to the District Court for the parties to adjudicate their respective claims by the proper procedure.


¶ 2 The City of Oklahoma City charged Christopher Tucker (Tucker) with municipal misdemeanor offenses of interfering with official process, obstructing an officer, and failing to obey lawful commands of an officer. On August 9, 2010, Tucker signed an agreement for the Cochran Firm–Criminal Defense, Birmingham, L.L.C., (Cochran Firm), to provide him with legal representation for his scheduled trial in October of 2010. Tucker was found guilty of a municipal charge as a result of the trial proceedings.

¶ 3 Tucker filed an action in the District Court of Oklahoma County against the Cochran Firm alleging that the Case Manager for the law firm, John Pride, had misrepresented the nature of the services that the law firm would provide and that the Cochran Firm had (1) committed actual and constructive fraud, (2) committed acts of legal malpractice and negligence, (3) violated the Oklahoma Consumer Protection Act (15 O.S. §§ 751 –764.1 ), (4) committed the tort of outrage, and (5) breached the parties' agreement.

¶ 4 Tucker alleged that the Case Manager informed him that the law firm would engage in a four to five-day trial to defend Tucker, the law firm would provide an experienced trial lawyer with twenty to thirty years of experience to represent him at trial, and that the law firm “had attorneys who were licensed to practice in Oklahoma and who would in fact defend the Plaintiff in trial....” He alleged that these statements were untrue and were made to fraudulently induce him to enter into an agreement for legal services and to pay “outrageous fees.” The law firm required Tucker to pay a non-refundable retainer of $13,690.00 for legal representation for the trial. Tucker had paid to the law firm $12,200.00 in installments by the time his trial occurred.

¶ 5 He also alleged that a few days after he signed the agreement, the Cochran Firm informed him that Josh McKeown, an attorney with the firm, would represent him at the trial. He further alleged that on the morning of his trial he met for the first time the attorney who actually represented him at his trial, an Oklahoma lawyer, E.W. Childers. Tucker alleged that during the trial McKeown was in the courtroom seated in the area for the public and “whispered a couple of times to Childers.” He also alleged that the Cochran Firm paid Childers $500.00 to represent him at his trial which lasted approximately forty minutes.

¶ 6 Tucker alleged that McKeown had not sought to be admitted pro hac vice for the trial. He also alleged that the Cochran Firm had (1) failed to request a court reporter for preparation of a trial transcript for an appeal, (2) failed to conduct any discovery or otherwise request documents and evidence from the City of Oklahoma City, (3) failed to secure and subpoena the police vehicle videos and videos from nearby businesses, (4) failed to obtain information concerning complaints and disciplinary actions concerning the police officers involved, (5) failed to obtain character witnesses for Tucker, (6) failed to prepare witnesses for the trial, (7) failed to obtain an expert witness for Tucker as promised by the Cochran Firm, (8) failed to submit a trial brief on a specific issue, (9) failed to object to the identification of evidence, (10) failed to move to suppress evidence based on an officer's lack of probable cause or reasonable suspicion to stop, (11) failed to seek admission pro hac vice, and (12) failed to adequately prepare with local counsel.

¶ 7 The Cochran Firm filed a motion to dismiss Tucker's petition. The law firm's motion relied on 12 O.S. § 19 ;1 a forum-selection clause in the contract; and Bakhsh v. JACRRC Enterprises, Inc., 1995 OK CIV APP 40, 895 P.2d 746, where in an opinion released for publication by order of the Court of Civil Appeals, the court stated that parties to a contract may select the jurisdiction in which all actions arising from their transaction shall be heard, and a selected forum in Dallas, Texas, was held to be reasonable in the circumstances. The forum-selection clause at issue in this case states that: “This agreement shall be interpreted under the laws of the state of California and jurisdiction and venue shall be exclusively in the county of Los Angeles, in the state of California.”2

¶ 8 This initial motion to dismiss was denied by the trial court because it was signed by an attorney not admitted to practice before the court. Lawyers for the Cochran Firm subsequently sought to vacate the trial court's ruling pursuant to 12 O.S. § 1031.1 with an argument that the person who signed the initial motion to dismiss was “a member” of the Cochran Firm acting as a pro se defendant.” The trial court vacated its order denying the motion to dismiss; directed the Cochran Firm to file an amended motion to dismiss; and ordered that the amended motion to dismiss, when filed, would relate back to the date the initial motion to dismiss was filed.

¶ 9 After filing the amended motion to dismiss, the trial court determined that the forum-selection clause in the retainer agreement should be judicially enforced. The trial court also determined that enforcement of the forum-selection clause would not be unfair or unreasonable under the circumstances. The trial court dismissed the action for improper venue.

¶ 10 Tucker appealed and the Court of Civil Appeals, in an opinion released for publication, reversed the trial court and remanded the cause for further proceedings. The appellate court concluded that the Retention Agreement specified who must sign the agreement on behalf of the law firm, and that this was not done. The court concluded that in the absence of a written retention agreement, the parties had an oral retention agreement, and that the trial court had failed to determine whether there existed a valid forum-selection agreement between the parties.3 The court appears to have concluded that a forum-selection clause would violate public policy if the clause required obligations created by a lawyer-client relationship in an Oklahoma legal proceeding to be governed by the law of another state.

¶ 11 The Cochran Firm filed a petition for certiorari in this Court and argued that (1) the appellate court should have applied an abuse-of-discretion standard instead of using a de novo review, (2) the burden of persuasion is on one attacking a forum-selection clause and the record shows that Tucker failed this burden, (3) a client-attorney fiduciary relationship does not apply when fees are negotiated, (4) the appellate court improperly adjudicated disputed questions of fact, and (5) the appellate court improperly based public policy considerations on allegations of fact where those facts occurred after the contract negotiation.

¶ 12 The Cochran Firm relies upon various opinions of the Court of Civil Appeals for the proposition that a forum-selection clause should be enforced and its argument on the nature of Tucker's burden in the trial court. Tucker relies on an opinion from the Court of Civil Appeals for the concept that a “reasonableness test” should be used when a court decides whether to enforce a forum-selection clause. Our Court of Civil Appeals has addressed whether forum-selection clauses in written agreements are enforceable in various circumstances.4 Although they constitute persuasive authority only and are not precedential because their publication was not pursuant to orders of the Supreme Court, they do serve as examples of courts in Oklahoma enforcing forum-selection clauses in Oklahoma since 1989.5 This Court has examined forum-selection clauses in the contexts of arbitration and issue preclusion,6 but the issues before us today have not been previously addressed by this Court.

¶ 13 Certiorari was previously granted by this Court, and we vacate the opinion of the Court of Civil Appeals. We have not previously addressed the procedure employed in the District Court and the respective burdens of the parties when a court adjudicates the enforcement of a forum-selection clause. We remand the case to the District Court for the purpose of providing the parties an opportunity to litigate the issue of the enforceability of the clause in this proceeding.


¶ 14 The first issue raised on certiorari involves the allocation of the burdens of pleading, persuasion, and proof; and this necessarily raises the proper procedure for a party invoking a forum-selection clause. In the last twenty years, when a mandatory7 forum-selection clause specified an exclusive forum for both jurisdiction and venue8 the United States Court of Appeals for the Tenth Circuit allowed a defendant to judicially enforce that clause by a motion to dismiss for improper venue pursuant to Fed.R.Civ.P. 12(b)(3).9 On the other hand, the First Circuit Court of Appeals has treated a motion to dismiss based upon a forum-selection clause as a motion alleging the failure to state a claim for which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6).10 However, in its 2013 opinion in Atlantic Marine Construction Co. v. United States District...

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