The Bill Kumpe Law Firm

 

 

Real Estate Investment Trusts (REIT's) are a sophisticated investment and estate planning tool which allow the investor to participate in real estate ownership in much the same way that traditional investors participate in the stock market through mutual funds.

 

REIT's may be publicly or privately held and may be organized as a corporation, an LLC or a private trust.

 

REIT's may offer significant tax advantages to their investors but are highly regulated by the Internal Revenue Service and among other requirements must distribute almost all of their income to their investors every year.

 

In answer to a question submitted by Oklahoma Secretary of State Susan Savage, the Oklahoma Attorney General's issued an opinion that most REIT's must register with the State of Oklahoma:

 

1. A REIT formed as a corporation, whether domestic or foreign, must register with the Oklahoma Secretary of State. 18 O.S.2001, §§ 1005, 1130(B).

2. A REIT formed as a limited liability company, whether domestic or foreign, must register with the Oklahoma Secretary of State. 18 O.S.2001&Supp.2007, §§ 2001, 2004, 2043.

3. A REIT formed as a trust but not organized as a corporation or under any limited liability company statutes, whether domestic or foreign, is not required to register with the Oklahoma Secretary of State; therefore, an "original certificate" from the foreign jurisdiction is not required. See 18 O.S. 2001&Supp.2007, §§ 2004, 2043, 2054.1(A), 1090.4(A); 54 O.S.Supp.2007, § 310.2(A).

 

The opinion is 2008 OKAG 11, link HERE.

 

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The following is an excerpt from Watson v. Gibson Capital LLC, 2008 OK 56, link HERE:

 

¶0 In an action to recover damages for property loss caused by fire, the plaintiff filed a voluntary dismissal with prejudice without the knowledge of his counsel of record. On the motion of plaintiff's lawyer, the trial judge, David Peterson of the District Court in Tulsa County, vacated the dismissal. The Court of Civil Appeals reversed the vacation order. On certiorari granted upon the plaintiff's petition (the Oklahoma Supreme Court held):

 

(Snip) ¶13 A party to an action who is represented by counsel of record may not act independently as his own attorney in the case. A dismissal of the action filed by a represented client without being joined by the counsel of record or without having earlier discharged his lawyer from employment is facially ineffective. The attorney-of- record status extends to the client's forensic representation. Because the plaintiff's dismissal was facially ineffective, the trial court did not err in setting it aside. A correct trial court's decision will be affirmed even if it is apparent from the transcript of oral proceedings that it was rendered upon the wrong or inapplicable reason.17

¶14 The message of today's pronouncement, which governs important aspects of pro se and by-counsel representation, is simple and clear.

¶15 One who is represented by counsel of record will not be recognized when attempting to act pro se before one's counsel stands discharged and that act appears of record. Nor will a pro se litigant be recognized when attempting to act by counsel until the newly-chosen counsel has made an appearance of record for the client as that party's attorney in the case.   

 

In refusing to uphold a motion for summary judgment in a lower court, the Oklahoma Supreme Court has probably increased the possibility of successful litigation against commercial property owners for crimes committed on their property.  The following is an excerpt from the case:

 

¶2 Monica Bray is a nurse who was employed by a service and assigned to St. John Hospital in Tulsa, Oklahoma. ... she was kidnapped at knife point (from the St. John parking garage), driven to another location in the assailant's van, and raped. The assailant, defendant Michael McWhirt, was arrested and eventually convicted for these actions. (Snip)

A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to

(a) discover that such acts are being done or are likely to be done, or
(b) give a warning adequate to enable visitors to avoid the harm, or otherwise to protect them against it.

Restatement (Second) of Torts § 344 (1965). Comment f to section 344 explains that "[s]ince the possessor is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur."2 (SNIP)

 

 .... this Court must inquire whether evidence was presented to establish that St. John knew or had reason to know from past experience that it should reasonably anticipate criminal conduct in its parking garage. .... Thus, the place and character of St. John's parking garage and St. John's past experience with a high rate of crime on its property gave rise to a duty to provide adequate precautions against criminal activity in its parking garage.

 

The case is Bray v.  St. Johns Health System, Inc. 2008 OK 51 link HERE.

 

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Q. What is your brother-in-law's name?
A. Borofkin.
Q. What's his first name?
A. I can't remember.
Q. He's been your brother-in-law for years, and you can't remember his
first name?
A. No. I tell you I'm too excited. (Rising from the witness chair and
pointing to Mr. Borofkin.) Nathan, for God's sake, tell them your first
name!
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Q. Did you ever stay all night with this man in New York?
A. I refuse to answer that question.
Q. Did you ever stay all night with this man in Chicago?
A. I refuse to answer that question.
Q. Did you ever stay all night with this man in Miami?
A. No.
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Q. Doctor, how many autopsies have you peformed on dead people?
A. All my autopsies have been performed on dead people.
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Q. Were you aquainted with the deceased?
A. Yes, sir.
Q. Before or after he died?
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Q. Now, you have investigated other murders, have you not, where there
was a victim?
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Q. ... and what did he do then?
A. He came home, and next morning he was dead.
Q. So when he woke up the next morning he was dead?
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Q. The truth of the matter is that you were not an unbiased, objective
witness, isn't it. You too were shot in the fracas?
A. No, sir. I was shot midway between the fracas and the navel.
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