Sanders v. Turn Key Health Clinics, LLC

SANDERS v. TURN KEY HEALTH CLINICS
2025 OK 19
Case Number: 121589
Decided: 03/11/2025
THE SUPREME COURT OF THE STATE OF OKLAHOMA

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

PHILIP SANDERS, an Individual and Husband and Next of Kin of BRENDA JEAN SANDERS and Personal Representative of the Estate of BRENDA JEAN SANDERS, Deceased, Plaintiff/Appellant,
v.
TURN KEY HEALTH CLINICS, a limited liability company, Defendant/Appellee.

ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION III

¶0 Plaintiff filed a petition in the District Court for Creek County and alleged a wrongful death caused by defendant. Defendant filed a motion to dismiss the petition and the Honorable Douglas W. Golden, District Judge, granted defendant's motion to dismiss and also granted leave for plaintiff to amend the petition. Plaintiff did not amend and appealed the trial court's order granting dismissal and leave to amend. The Court of Civil Appeals reversed the District Court, released its opinion for publication, and defendant filed a petition for certiorari to review the appellate court. We granted certiorari. We hold: Plaintiff appealed an interlocutory order, created a premature appeal, and appellate jurisdiction is absent; The Court vacates the opinion by the Court of Civil Appeals and withdraws it from publication; The Court recasts plaintiff's petition in error to an application to assume original jurisdiction and petition for prohibition; The Governmental Tort Claims Act makes licensed medical professionals to be employees of this state, regardless of the place in this state where duties as employees are performed, when the licensed medical professionals are under contract, including when under contract as an independent contractor, with city, county, or state entities and providing medical care to inmates or detainees in the custody or control of law enforcement agencies; The Court assumes original jurisdiction and denies the petition for writ of prohibition.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF COURT OF CIVIL APPEALS
VACATED AND WITHDRAWN FROM PUBLICATION; APPEAL RECAST;ORIGINAL
JURISDICTION ASSUMED; PETITION FOR WRIT OF PROHIBITION DENIED

Charles L. Richardson, Colton L. Richardson, Richardson Richardson Boudreaux, Tulsa, Oklahoma, for Plaintiffs/Appellants.

Sean P. Snider, Anthony C. Winter, Johnson Hanan Vosler Hawthorne & Snider, Oklahoma City, Oklahoma, for Defendant/Appellee.

EDMONDSON, J.

¶1 We conclude The Governmental Tort Claims Act makes licensed medical professionals to be "employees" of this state, regardless of the place in this state where duties as employees are performed, when the licensed medical professionals are under contract, including when under contract as an independent contractor, with city, county, or state entities and providing medical care to inmates or detainees in the custody or control of law enforcement agencies.

I. Trial Court Proceedings

¶2 Plaintiff Sanders, filed a petition in the District Court and alleged the defendant, Turn Key Health Clinics, LLC, (Turn Key) caused the wrongful death of Sanders' wife as a result of her confinement in the Creek County Jail. He alleged Brenda Jean Sanders was booked into the Creek County Justice Center on October 17, 2016, at 10:33 p.m., and her health deteriorated during her four weeks of custody. Brenda Sanders was transported from the jail to a hospital on November 20, 2016, where she was diagnosed with "severe sepsis with shock, acute hypoxic respiratory failure, acute kidney injury, hepatopathy, coagulopathy, anemia, and thrombocytopenia." She died on November 21, 2016.

¶3 Turn Key filed a motion to dismiss Sanders' petition. Turn Key argued Sanders "failed to state a claim upon relief can be granted," because Turn Key was "immune from liability under the Oklahoma Governmental Tort Claims Act." The District Court granted the motion to dismiss and the court's order also stated plaintiff was granted thirty days to file an amended petition.

¶4 Sanders appealed the trial court's order. The Court of Civil Appeals reversed the order of the trial court, with one judge dissenting, and released its opinion for publication. Turn Key petitioned this Court for certiorari to review the opinion by the Court of Civil Appeals. This Court previously granted certiorari.

II. Appellant's Petition in Error Challenging an Interlocutory Order

¶5 This Court inquires into its own jurisdiction in every proceeding before the Court. ¹ An untimely appeal may dismissed during the Court's certiorari review of an opinion by the Court of Civil Appeals. ²

¶6 Turn Key's motion to dismiss the petition cited 12 O.S. §2012(B)(6) ("Failure to state a claim upon which relief can be granted"). The trial court granted the motion to dismiss and also granted Sanders thirty days to amend his petition. Sanders did not amend his petition. Section 2012(G) provides a procedure when a dismissal with leave to amend occurs and plaintiff fails to amend the petition.

G. FINAL DISMISSAL ON FAILURE TO AMEND. On granting a motion to dismiss a claim for relief, the court shall grant leave to amend if the defect can be remedied and shall specify the time within which an amended pleading shall be filed. If the amended pleading is not filed within the time allowed, final judgment of dismissal with prejudice shall be entered on motion except in cases of excusable neglect. In such cases amendment shall be made by the party in default within a time specified by the court for filing an amended pleading. Within the time allowed by the court for filing an amended pleading, a plaintiff may voluntarily dismiss the action without prejudice.

12 O.S. §2012(G) (emphasis added). The statute states "final judgment of dismissal with prejudice" occurs "on motion" after the time granted for a plaintiff to amend the petition. In other words, the order granting a dismissal with leave to amend is not immediately appealable, and an appeal is brought from "the final judgment of dismissal" entered on motion³and filed in the trial court after the expiration of time to amend the petition.

¶7 In Brown v. Founders Bank and Trust Co., 1994 OK 130, 890 P.2d 855, the trial court granted a motion to dismiss for failure of the petition to state a claim upon which relief can be granted pursuant 12 O.S. §2012(B)(6) and plaintiff was granted leave to amend pursuant to 12 O.S. §2012(G). Plaintiff in Brown filed an amended petition after the time the trial court had allowed. The trial court later memorialized its decision granting the motion to dismiss. The controversy on appeal included an appellate adjudication to determine when the plaintiff could appeal the trial court's dismissal.

¶8 We explained in Brown the order granting dismissal with leave to amend was an interlocutory order and not immediately appealable.

When the trial court granted Founders' initial motion to dismiss with leave to amend, Brown could not have appealed on the merits of his claim. Such an order is interlocutory; it is not a final judgment. The order may ripen into a final judgment upon the motion of an adverse party if the pleading is not amended within the time set by the trial court. A motion to dismiss for failure to state a claim upon which relief can be granted may not be sustained unless it appears without doubt that the plaintiff can prove no set of facts in support of the claim entitling relief.

Brown, 1994 OK 130, ¶8, 890 P.2d at 860-861 (emphasis added and notes omitted). The order of dismissal granting leave to amend is not the "final judgment." Characterizing the dismissal order granting leave to amend as interlocutory and not immediately appealable was recognized five years earlier in Frazier v. Bryan Memorial Hospital Authority, 1989 OK 73, ¶¶7-11, 775 P.2d 281, 284-86. In Frazier and in the context of the former Political Subdivision Tort Claims Act, ⁴ we construed (1) the effect of language in a dismissal order, (2) a subsequent order granting leave to amend, and (3) the language in 12 O.S. §2012(G). We stated with respect to a dismissal order granting leave to amend: "[the trial court's] DECISION WAS A NONAPPEALABLE INTERLOCUTORY ORDER." Frazier, 775 P.2d at 284 (section title in original). ⁵¶9 The order granting Turn Key's motion to dismiss was not an immediately appealable order when Turn Key filed its petition in error. Language in Brown states an order granting dismissal and leave to amend "may ripen" into a final judgment "upon motion by an adverse party." Brown, 1994 OK 130, ¶8, 890 P.2d at 860-61. No such motion by Turn Key is in the appellate record before the Court. Sanders' petition in error is based solely upon a challenge to the interlocutory nonappealable dismissal order granting leave to amend the petition.

¶10 Our appellate jurisdiction is usually based upon constitutional or statutory authority, or a combination of these two, with the authority stating a judicial act in a particular type of matter or a particular type of judicial act, e.g., final order, judgment, etc., may be reviewed by an appeal when brought pursuant to constitutional and legislative requirements. ⁶ For example, we have explained the Legislature may control the form of a judgment for the purpose of timely commencing an appeal. ⁷The absence of an appellate jurisdictional requirement may result in a dismissal of the appeal. ⁸

¶11 The appellate record before the Court lacks a memorial of an appealable trial court judgment entered and filed in the trial court after Sanders failed to amend his petition. The truncated appellate record⁹ before us appears to indicate either: (1) No 12 O.S. §2012(G) "final judgment" after dismissal occurred and the appeal is a premature appeal challenging an interlocutory order as explained in Brown, ¹⁰ or (2) A final judgment after dismissal did occur but appellant failed to include the judgment or any reference to such in his appellate record.

¶12 A premature appeal from a District Court may continue if appellant files a timely supplemental petition in error. ¹¹ The Rules of this Court allow an appellant to file a supplemental petition in error to cure a prematurely filed petition in error. Okla.Sup.Ct.R. 1.26(c), 12 O.S.2021, Ch. 15, App. The supplemental petition in error may be filed at any time prior to the Court's dismissal of the premature appeal. Id. No supplemental petition has been filed by Sanders.

¶13 Nothing in the record suggests a judgment actually filed in the trial court. A filed judgment is missing from the appellate record. Such error has been remedied by appellant filing the judgment after direction by the appellate court. If appellant "neglected to make the record so show, after the court's order so directing, the appellate court may then justifiably dismiss the appeal." ¹² We noted this procedure and explained the Legislature intended to make the inclusion of a 'recorded written' memorial a "sine qua non of appellate review" rather than a jurisdictional prerequisite to the commencement of an appeal. ¹³ Since 1993 the Legislature has stated: "The filing with the court clerk of a written judgment, decree or appealable order, prepared in conformance with Section 696.3 of this title and signed by the court, shall be a jurisdictional prerequisite to the commencement of an appeal." 12 O.S. 2021, §696.2(D) (emphasis added and citing 12 O.S.2021, §696.3). ¹⁴ Because we recast Sanders' petition in error we need not analyze application of the "jurisdictional prerequisite" language in 12 O.S. §696.3 and 12 O.S. §990A(F), curing a premature appeal, and if a supplemental petition is necessary. ¹⁵

¶14 The trial court granted Sanders thirty days to amend the petition. No amendment was filed within the thirty-day period. Sanders' appellate record presents the Court with the jurisdictional issue whether an interlocutory nonappealable order could ripen into an appealable order by the mere expiration of the time to amend a petition as specified in a trial court's dismissal order.

¶15 Sanders' request for the exercise of appellate jurisdiction on the record before us would require the Court to create an exception for the §2012(G) procedure not found in that statute, or redefining what constitutes a judgment, or holding an "interlocutory order" may ripen into a judgment during an appeal. The statute, 12 O.S. §2012(G) has an exception for an amendment's timeliness, "except in cases of excusable neglect," but no exception expressly exists in §2012(G) for an interlocutory order ripening into a "final judgment of dismissal" by mere lapse of time.

¶16 When the legislature has spoken and addressed an issue using plain, clear, unambiguous language within the sphere of the legislature's authority, then this Court applies the language without needing to apply rules of statutory construction. ¹⁶ In Oglesby v. Liberty Mutual Insurance Company, 1992 OK 61, 832 P.2d 834, we stated: "We may not read an exception into a statute not made by the Legislature." ¹⁷ We decline to change or alter the unambiguous statutory language by creating a new type of appealable order based solely upon a plaintiff failing to amend a petition when no party takes action specified by 12 O.S. §2012(G) to memorialize a final judgment of dismissal after that failure.

¶17 Of course, the mere passage of time after a dismissal may prevent an effective amendment in a particular circumstance, such as when an applicable statute of limitations is raised and its application makes an amendment untimely. ¹⁸ But whether the application of a statute of limitations, or "excusable neglect," or some other legal principle could potentially apply requires an exercise of judicial discretion occurring in the first instance by a District Court, and not an appellate court. ¹⁹ The appellate record shows a trial court order dismissing Sanders' petition with leave to amend. This order is an interlocutory order that is not immediately appealable. Sanders' petition in error is premature to invoke appellate jurisdiction.

III. No Briefing on Recasting Procedure and Lack of Prejudice

¶18 During our certiorari review we have not required Sanders to return to the trial court to obtain a "final judgment of dismissal" as described in 12 O.S. §2012(G), or explain why he appealed from an interlocutory order. Generally, when a court raises an issue sua sponte the parties are given a reasonable opportunity to present facts and law on the issue prior to the court's decision adjudicating the sua sponte issue, and one example is a court's sua sponte inquiry into its jurisdiction. ²⁰ We do not depart from this principle but find it need not be applied in the present controversy.

¶19 In summary, reasonable expectations by appellate parties before this Court include this Court's use of recasting requests for relief with the Court's typical analysis. For example, these expectations include, but are not limited to: (1) The Court's history of recasting a petition in error to a petition for extraordinary relief in proper circumstances, i.e., changing a request for appellate jurisdiction to one for original jurisdiction; and (2) The Court making an assessment whether recasting has a potential for prejudicing the parties' legal claims and defenses, the necessity for notice to parties and an opportunity to brief issues, and the necessity of an additional record conforming to an exercise of either appellate or supervisory writ jurisdiction.

¶20 More than thirty years ago we explained: "This court on occasion, and when justice so requires, will treat a petition in error as an original action for a writ, or vice versa." ²¹ When an appeal is recast as a supervisory writ proceeding we may require a party to file an application to assume original jurisdiction, a petition for a writ, and a record conforming to the requirements for an original jurisdiction proceeding. ²² We have explained our recasting must be "procedurally proper," and we have recast when it serves the interests of judicial economy and when the scope of the adjudication presents an issue of law. ²³

¶21 Our analysis of a judicial procedure includes issues relating to notice, a party's opportunity to be heard, and whether a party suffers legally cognizable prejudice as a result of the procedure used. ²⁴ One part of our conclusion that Sanders and Turn Key are not prejudiced by reviewing the parties' arguments within the context of a supervisory writ is that the alternative of dismissing Sanders' appeal as premature would not affect Sanders' cause of action, or Turn Key's challenge to the petition upon a post-dismissal appellate adjudication due to the resulting interlocutory status. ²⁵

¶22 Our analysis whether prejudice could be present by recasting without notice also includes consideration of the Court's writ review upon recasting compared to the Court's review by appellate jurisdiction. An appellate adjudication of a 12 O.S. §2012(B)(6) failure to state a claim presents an issue of law. ²⁶ Historically, a similar testing of a petition's sufficiency as an issue of law occurred when the Court exercised supervisory writ jurisdiction and reviewed an order overruling a general demurrer to a petition. ²⁷ We note similar procedural burdens for Sanders to produce a record showing legal error if appearing as either an appellant or petitioner for a writ in either original and appellate proceedings. ²⁸ Although original jurisdiction remedies involve burdens²⁹ that are not identical to those based solely upon an appellate review of a judgment, these differences have no impact upon either Sanders' and Turn Key's legal arguments or the sufficiency of the record before us. Our standard of review of the trial court's exercise of judicial discretion resulting in its 12 O.S. §2012(B)(6) dismissal order is the same in both appellate and original jurisdiction proceedings reviewing the order.

¶23 Additionally, Turn Key's 12 O.S. §2012(B)(6) motion to dismiss was based upon the meaning and effect of a statute which presents an issue of law, and is reviewed de novo without deference to the trial court's decision. ³⁰ The specific issue raised by Turn Key, an asserted immunity pursuant to The Oklahoma Governmental Tort Claims Act (GTCA) ³¹ presents an issue of law. ³² The non-deferential and de novo standards of review create no prejudice when applied in a recast supervisory writ proceeding because the same standards of review are applied in an appellate proceeding reviewing the sufficiency of Sanders' trial court petition. We also note that enforcement of our opinion by a supervisory writ in the trial court is conceptually similar, although not identical, to enforcement of an appellate opinion.

¶24 Sanders' appeal was brought pursuant to Rule 1.36, Okla.Sup.Ct.R. which provides for the trial court filings to serve as the appellate briefs. The parties had an opportunity to brief the issues raised by the §2012(B)(6) motion and these issues are also raised by the petition for certiorari.

¶25 We conclude Sanders' petition in error may be recast to a supervisory writ proceeding without notice to the parties if Sanders' appellate assignments of error and the issues on certiorari are proper for assuming supervisory original jurisdiction with an associated petition for a supervisory writ.

IV. Appellant's Petition in Error Recast as an Application to Assume
Original Jurisdiction and Petition for Writ of Prohibition

¶26 Final and interlocutory trial court orders in a cause of action as well as administrative orders by an administrative body or a trial court may be subject to review by the Court's extraordinary supervisory writs and superintending writs in proper circumstances. Sanders' dismissal order is not "final" because it is not a "final judgment of dismissal with prejudice." Extraordinary review of an order lacking finality due to the absence of a dismissal order is rare, but within this Court's authority. For example, the Court has assumed original jurisdiction and adjudicated an issue of law, e.g., a constitutional question, "in the instance where a ruling upon a demurrer was not final for lack of a dismissal order." ³⁶

¶27 Further, the Court may grant affirmative relief in the nature of extraordinary supervisory relief when appellate jurisdiction is absent. The Court may recast a petition in error as a request for original jurisdiction relief in certain circumstances including, but not limited to, when the specific legal issue to be adjudicated is one of first impression, the legal issue may be characterized as within a class of issues or claims historically recognized by this Court as proper for extraordinary relief, and the remedial scope of extraordinary writs issued by the Court includes the specific claim or issue before the Court. ³⁹

¶28 The Court examines whether circumstances in support of assuming original jurisdiction are present as part of the controversy, for example, clarifying a new statute or a new legal procedure, ⁴⁰ likely repetition of the issue and judicial economy, ⁴¹ and whether a publici juris issue is presented. ⁴²

¶29 Turn Key's motion to dismiss included seventeen attached exhibits. The exhibits include several orders from the United States District Courts for both the Eastern and Western Districts of Oklahoma, as well as orders from the District Court of Oklahoma County and District Court of Creek County. The federal courts state reasoning based upon their predictions how the Oklahoma Supreme Court would rule on an issue of Oklahoma law. These courts cite language in Barrios v. Haskell County Public Facilities Authority, 2018 OK 90, 432 P.3d 233, and analyze how this language could be construed in future proceedings. The issue involves The Oklahoma Governmental Tort Claims Act. Turn Key's petition for certiorari to the Court of Civil Appeals argues different panels of the appellate court have different opinions on the issue. The issue discussed by these federal and state courts is presented by Turn Key's motion to dismiss as well as the petition for certiorari filed in the present proceeding.

¶30 The Governmental Tort Claims Act on the subject of a legal immunity and immunity in other particular circumstances has been adjudicated by this Court in supervisory writ proceedings where first impression issues of law are presented with an urgent need for adjudication. The record before us shows a public need for a prompt resolution of the GTCA immunity issue in this controversy.

¶31 Public policy in support of enforcing a 12 O.S. §2012(G) dismissal by allowing Sanders additional time to obtain a "final judgment of dismissal" from the trial court and then return to this Court would create further delay. Public policies involving enforcement of 12 O.S. §2012(G) and prompt resolution of the GTCA immunity do not statutorily conflict in this controversy; and we are required to weigh the public policy in support of a prompt resolution of this particular sovereign immunity claim against public policy in support of strict compliance with 12 O.S. §2012(G) by an appellate dismissal.

¶32 Our analysis includes considering adequacy of remedies alternative to supervisory writs, because a public interest is not sufficient, by itself, to make an alternative remedy inadequate for the purpose of recasting a petition in error. ⁴⁶ We note a dismissal for prematurity or requiring Sanders to file a judgment of dismissal would not moot the controversy. A prompt result favoring either party would promote judicial economy with associated docket control creating economy of time and effort for trial courts, for counsel, and for litigants in multiple proceedings applying The Oklahoma Governmental Tort Claims Act.

¶33 Not every statute is an expression of a fundamental public policy concern, ⁴⁹ but every provision of every Oklahoma statute is presumed to have been intended for some useful purpose and every provision should be given effect. ⁵⁰ Selection of a proper procedure is usually determined on a case-by-case basis and based upon substantive rights at issue, ⁵¹ and fundamental fairness is afforded within a framework of orderly procedure with "steadfast adherence to strict procedural safeguards." ⁵² We conclude public policy concerns relating to strict enforcement of a 12 O.S. §2012(G) dismissal do not outweigh the public's interests in a sua sponte recasting of this controversy.

¶34 We recast Sanders' petition in error to an application to assume original jurisdiction and a petition to issue a writ of prohibition to prevent enforcement of the trial court's dismissal order. The scope of our original jurisdiction review includes all filings in the appellate controversy and the specific claims made and preserved by the parties. We assume original jurisdiction and deny the petition for a writ of prohibition.

V. The Oklahoma Governmental Tort Claims Act and Issue Raised by Parties

¶35 Turn Key, LLC, was a healthcare contractor with its employees providing healthcare to inmates in the Creek County Detention Center. Plaintiff argues that Turn Key is liable for its own negligence and that of its employees relating to the healthcare Turn Key provides to inmates. Turn Key argues it is immune from liability based upon 51 O.S.Supp.2014, §152(7)(b)(7) in The Oklahoma Governmental Tort Claims Act.

¶36 In Sullins v. American Medical Response of Oklahoma, Inc., 2001 OK 20, 23 P.3d 259, we addressed the applicability of the GTCA to a private entity who contracted with, and provided services for, a public trust. In Sullins, AMR, was a private corporation that contracted with a public trust, Emergency Medical Services (EMS), with AMR providing dispatching and field operations for EMS. We were required to construe statutory language and adjudicate whether AMR was an "entity designated to act in behalf of the state or a political subdivision." Id. at ¶17, 23 P.3d at 263.

¶37 We observed that an "agency" in 51 O.S. §152(2) expressly included a board, commission, committee, or department of the state or a political subdivision. Further each of these entities was either a body organized to execute a governmental function or a division of governmental administration, i.e. "entities through which the state or a political subdivision acts in the administration of government." Id. at ¶19, 23 P.3d at 263-64. We stated: "A private entity such as AMR is not an 'entity designated to act in behalf of the state or a political subdivision' merely because it contracts with a public trust to provide services which the public trust is authorized to provide." Id. at ¶20, 23 P.3d at 264. We noted factors supporting this conclusion, and also noted the GTCA "expressly excludes 'independent contractors' or 'an employee of independent contractors' from the definition of 'employee,' indicating that the Legislature intended to exclude public contractors from the immunity provisions of the GTCA." Id. at ¶¶20-22, 23 P.3d at 264. We observed: "51 O.S.Supp.2000, § 152(5)(a)(1) provides that employee '... does not mean a person or other legal entity while acting in the capacity of an independent contractor or an employee of an independent contractor....'" Id. at n. 29, 23 P.3d at 264.

¶38 Beginning in 2007 section 152 of the GTCA stated an "employee" includes licensed medical professionals under contract with city, county, or state entities and providing medical care to inmates or detainees in the custody or control of law enforcement agencies. Sanders' petition alleged injury caused by Turn Key occurred between October 17, 2016, and November 20, 2016. The 2014 version of 51 O.S. §152(7)(b)(7) was in effect at that time.

Section 152. As used in The Governmental Tort Claims Act:
...7. "Employee" means any person who is authorized to act in behalf of a political subdivision or the state whether that person is acting on a permanent or temporary basis, with or without being compensated or on a full-time or part-time basis.

a. Employee also includes:
(1) all elected or appointed officers, members of governing bodies and other persons designated to act for an agency or political subdivision, but the term does not mean a person or other legal entity while acting in the capacity of an independent contractor or an employee of an independent contractor, . . .
b. For the purpose of The Governmental Tort Claims Act, the following are employees of this state, regardless of the place in this state where duties as employees are performed: . . .

(7) licensed medical professionals under contract with city, county, or state entities who provide medical care to inmates or detainees in the custody or control of law enforcement agencies, and

51 O.S.Supp.2014, §152(7)(a)(1) & (7)(b)(7) (emphasis added). Sanders relies on this language (51 O.S. §152(7)(a)(1)) and argues independent contractors and their employees do not have immunity. Turn Key relies on this language (51 O.S. §152(7)(b)(7)) and argues that both Turn Key LLC and Turn Key LLC's employees are 51 O.S. §152 immune employees "authorized to act in behalf of a political subdivision or the state" when they are providing medical care.

¶39 In Barrios v. Haskell County Public Facilities Authority, 2018 OK 90, ¶12, 432 P.3d 233, we explained: "The Legislature's amendment of the GTCA to specify that the GTCA applies even to tort suits alleging violations of constitutional rights was an exercise of the Legislature's long-recognized power to define the scope of the State's sovereign immunity, which forecloses our ability to expand the common law in a manner that would conflict with statutory law." Id. 2018 OK 90, at ¶12, 432 P.3d at 238. ⁵⁶ Sanders and Turn Key apply language from footnote number 5 of the opinion and come to different conclusions.

Generally speaking, the staff of a healthcare contractor at a jail are "employees" who are entitled to tort immunity under the GTCA by virtue of sections 152(7)(b), 153(A), and 155(25). See 51 O.S.Supp.2015 § 152(7)(b) ("As used in The Governmental Tort Claims Act: ... 7. 'Employee' means any person who is authorized to act in behalf of a political subdivision or the state whether that person is acting on a permanent or temporary basis, with or without being compensated or on a full-time basis. ... b. For the purpose of The Governmental Tort Claims Act, the following are employees of this state, regardless of the place in this state where duties as employees are performed: ... (5) physicians who provide medical care to inmates pursuant to a contract with the Department of Corrections, [and] ... (7) licensed medical professionals under contract with city, county, or state entities who provide medical care to inmates or detainees in the custody or control of law enforcement agencies...."); id. §§ 153(A), 155(25). We have not been asked whether Turn Key Health, LLC or its staff are "employees" under section 152(7)(b), but have assumed they are for purposes of answering the questions certified to us.

2018 OK 90, at n.5, 432 P.3d at 236. Turn Key relies upon "Generally speaking, the staff of a healthcare contractor at a jail are "employees" who are entitled to tort immunity under the GTCA..." while Sanders relies upon "We have not been asked whether Turn Key Health, LLC or its staff are 'employees' under section 152(7)(b), but have assumed they are for purposes of answering the questions certified to us." The parties argue whether footnote number 5 is consistent with 51 O.S. §152(7)(a)(1), and if footnote number 5 conclusively adjudicated the scope of immunity concerning healthcare workers employed by an independent contractor notwithstanding the Court expressly stating the issue was not adjudicated by its opinion.

VI. The Oklahoma Governmental Tort Claims Act

¶40 Governmental sovereign tort immunity of a political subdivision is waived only to the extent and in the manner provided in the GTCA. Tort liability is imposed and sovereign immunity retained based upon various criteria in the Act. One general criterion is the actor's status as an "employee" of the public entity. This criterion is often combined with other criteria focusing on the alleged wrongful act being within the scope of the employee's employment and distinguishing causes of action for the purposes of the Act based upon a degree of tort culpability. The nature of the alleged wrongful act is also used in 51 O.S.Supp.2022, § 155, with its list of thirty-seven numbered circumstances that will not serve as a basis for showing an alleged wrongful act, or tort claim, that "results from" one of the listed circumstances. ⁵⁹

¶41 The present controversy involves the nature of the alleged wrongful conduct as well as the status criterion of who is an "employee" for the purposes of the GTCA. In Barrios, supra, we stated "Generally, speaking the staff of a healthcare contractor at a jail are "employees" who are entitled to tort immunity under the GTCA by virtue of sections 152(7)(b), 153(A), and 155(25). ⁶⁰ Section 152(7)(b)(7) defines an "employee" and includes the following.

7. b. For the purpose of The Governmental Tort Claims Act, the following are employees of this state, regardless of the place in this state where duties as employees are performed

. . . (7) licensed medical professionals under contract with city, county, or state entities who provide medical care to inmates or detainees in the custody or control of law enforcement agencies,

This language unequivocally states the status of an "employee" occurs when the nature of the act is a (1) licensed medical professional, (2) under contract with a city county or state entity, (3) providing medical care, (4) to inmates or detainees in the custody or law enforcement agencies.

¶42 Sanders' petition states that: "Turn Key employees were contracted by Creek County as agents working in the Creek County Jail to provide medical care to inmates." ⁶¹ However, Sanders also states he may bring the action because "licensed medical professionals" does not "cover companies such as Defendant," and Turn Key's "status as an 'independent contractor' is without dispute." ⁶² We disagree with Sanders' application of "licensed medical professionals" as well as his method for applying the "independent contractor" status in this controversy.

¶43 Sanders states a limited liability company is not a licensed medical professional. Sanders argues he has brought an action against a limited liability company and not employees or agents of the limited liability company.

¶44 We agree with Sanders' assertion that the GTCA states an independent contractor is not an "employee" for the purpose of the GTCA, a principle described by the parties as "the independent contractor rule." Section 152(7)(a)(1) expressly states the term "employee" "does not mean a person or other legal entity while acting in the capacity of an independent contractor or an employee of an independent contractor." Additionally, versions of 51 O.S. §155 (18) for the last forty years have stated: "18. An act or omission of an independent contractor or consultant or his or her employees, agents, subcontractors or suppliers or of a person other than an employee of the state or political subdivision at the time the act or omission occurred." ⁶³ In Teeter v. City of Edmond, 2004 OK 5, 85 P.3d 817, we explained that "Section 155(18) facially protects UCO [University of Central Oklahoma] from liability flowing from the acts of its independent contractors." Id. 2005 OK 5, §24, 85 P.3d at 824.

¶45 However, the Legislature created an exception to "the independent contractor rule" for licensed medical professionals when they are under contract with city, county, or state entities and providing medical care to inmates or detainees in the custody or control of law enforcement agencies.

¶46 Historically, licensed professionals such as accountants, architects, dentists, lawyers, and physicians were prohibited in some states from practicing their professions as a corporation. ⁶⁴ Oklahoma has the Professional Entity Act, 18 O.S.2021, §§ 801-819, "making available to professional persons the benefits of the corporate form for the business aspects of their practices while preserving the established professional aspects." ⁶⁵ The Act recognizes a professional entity utilizing the "Oklahoma Limited Liability Company Act, in the case of a limited liability company," ⁶⁶ and provides for its formation or being "qualified to render professional services." ⁶⁷ The Act includes professionals practicing the healing arts. ⁶⁸ The Professional Entity Act shows the Legislature's public policy that licensed professionals, medical and otherwise, possess a freedom of contract to organize the business aspects of their professional practices and services based upon Oklahoma corporation, partnership, and limited liability company statutes.

¶47 Language in 51 O.S. § 152 states that licensed medical professionals are "employees" of the State "regardless of the place in this state where duties as employees are performed." When this language is combined with the nature of medical care by licensed professionals as well as medical professionals being statutorily allowed to practice via various organizational structures; then section 152 appears to be stating licensed medical professionals are treated as "employees" notwithstanding they possess one or more traditional attributes of independent contractors. ⁶⁹

¶48 This observation is confirmed by application of 51 O.S.Supp.2013, §155(25): providing that the State or a political subdivision shall not be liable if a loss or claim results from: "25. Provision, equipping, operation or maintenance of any prison, jail or correctional facility...." In Moran v. City of Del City, 2003 OK 57, 77 P.3d 588, we explained: As a statute must be read to render every part operative and to avoid rendering parts thereof superfluous or useless, we construe the parts of the GTCA as consistent parts of a whole. ⁷⁰ Clearly, the scope of sovereign immunity maintained by 51 O.S. §155(25) for claims resulting from "equipping, operation or maintenance of any prison, jail or correctional facility" would include the traditional employer/employee relationship existing between a licensed medical professional when contractually supplying medical care to those in custody. In Barrios we cited 51 O.S. §155(25) when stating "the staff of a healthcare contractor at a jail are 'employees' who are entitled to tort immunity under the GTCA." ⁷¹ An argument by plaintiff would make 51 O.S. §152(7)(b)(7) superfluous if its scope excluded either (1) a licensed medical professional providing the medical services at the jail as an independent contractor, or (2) the licensed medical professionals providing services via a business entity acting as an independent contractor, such as Turn Key LLC, for the purpose of providing "licensed medical professional" services at the jail. The "licensed medical professional" services at the jail are being supplied by "employees of this state" for the purposes of the GTCA.

¶49 Another reason for our construction of 51 O.S. §152(7)(b)(7) is how "employees" are treated by the GTCA and the employee's lack of personal negligence liability when acting within the scope of employment. We have stated: "Oklahoma law recognizes the application of the doctrine of respondeat superior to the Governmental Tort Claims Act." ⁷² Generally, the respondeat superior rule rests on the premise that when exercising delegated authority, the employee stands under the complete control of the employer. An employee of a political subdivision is relieved from private liability for tortious conduct committed within the scope of the employee's employment. ⁷⁴ This makes an "employee" who is a licensed medical professional not a proper GTCA defendant when this professional is acting within the scope of his or her "employment" when acting under contract with city, county, or state entities and providing medical care to inmates or detainees in the custody or control of law enforcement agencies. In other words, licensed medical professionals are "within the protection of respondeat superior liability" as an "employee" of the state when acting within the "scope of their employment" and under contract with city, county, or state entities and providing medical care to inmates or detainees in the custody or control of law enforcement agencies. ⁷⁵

¶50 Treating licensed medical professionals as "employees" "of this state" for the purposes of the GTCA when the licensed medical professionals are within the scope of employment and "under contract," including when under contract as an independent contractor, with city, county, or state entities and providing medical care to inmates or detainees in the custody or control of law enforcement agencies is the legislative intent expressed in 51 O.S. §152(7)(b)(7). Legislative intent controls statutory interpretation. ⁷⁶ In summary, 51 O.S. §152(7)(b)(7) creates a specific exception to the "independent contractor rule" when a licensed medical professional is the actor whose conduct is challenged as negligent while acting within the "scope of employment" and "under contract" as specified in 51 O.S. §152(7)(b)(7).

¶51 Sanders' petition alleges "employees" of Turn Key were "contracted to provide medical care to inmates." The petition identifies these employees as "medical personnel." The petition alleges that defendant failed "to provide access to medical and mental health personnel." During the trial court hearing plaintiff argued as follows.

One thing that Turn Key has never been able to prove or show is that they are a licensed medical professional. . . . the first part of it [provisions of the GTCA] [is that] [a]gain, Turn Key has never shown how they qualify as a person. Further, the Legislature still even excluded contractors and independent contractors . . . We have attached the contract that Turn Key has in Creek County that shows they are an independent contractor. . .

Attached to Plaintiff's Response to Turn Key Health Clinic, LLC's Motion to Dismiss is "Creek County, Oklahoma Contract For Medical Staffing and Administration for Creek County Criminal Justice Center." Plaintiff's Exhibit 6. The contract provides for pharmaceutical services "by a licensed qualified pharmacist." Contract, at §1.6. Turn Key must provide "proof of licenses and/or certificates for all professional staff." Id. at §1.12. The contract provides for a "Licensed Nurse on-site coverage," a "provider" ("Physician, ARNP, or PA"), a "mental health professional," and that "nursing protocols shall be devised and approved by a physician licensed in the State of Oklahoma." Contract at §§1.17, 1.22.

¶52 The contract does contain language stating Turn Key is an independent contractor. Id. at §5.1. Further, that Turn Key may "engage certain physicians as independent contractors rather than employees." Contract at §5.2. The contract does contain language to indemnify Creek County for medical malpractice tort liability. Id. at §1.6. The contract also states the laws of the State of Oklahoma govern the contract. Contract at §6.8.

¶53 We have explained that "every contract or agreement also has applicable law incorporated into the contract or agreement," including an indemnity agreement, with a result that parties could not create an indemnity agreement in order to "create a common-law negligence liability" for an injury which had an exclusive remedy by a public law statutory scheme, i.e., workers' compensation law. ⁷⁷ Again, sovereign tort immunity of a political subdivision is waived only to the extent and in the manner provided in the public-law GTCA, ⁷⁸ with those rights by the Act also subject to being limited from exceptions to tort liability. No party herein has argued a governmental entity possesses the authority to contractually waive or change the status of a statutory GTCA "employee" contrary to the Legislature's express requirements in the GTCA.

¶54 Sanders' response to the motion to dismiss and his argument during the trial court hearing did not raise any issue as an issue of fact that was not proper for consideration upon a 12 O.S. §2012(B)(6) motion. ⁷⁹ Sanders presented the contract for the purpose of showing Turn Key LLC was an independent contractor. The contract also showed with his petition that contractually required licensed medical professionals allegedly caused the wrongful acts for the purpose of his petition. ⁸⁰ Sanders did not raise the extent to which the alleged deficient medical care was the result of any Turn Key employees or contractors who caused the alleged deficient medical care (an alleged wrongful act), and who were also not licensed as medical professionals. In other words, Sanders' petition and the Creek County Contract filed with Sanders' response to Turn Key's motion to dismiss collectively made a short and plain statement of Sanders' claim (or cause of action) consisting of simple, concise, and direct averments showing that statutory GTCA "employees" "of this state" caused the alleged wrongful acts alleged by Sanders. ⁸¹

¶55 The trial court understood, and we agree, that Sanders' argument was based upon Turn Key's status as an independent contractor employing (or contracting with) licensed medical professionals for the jail, and as such the trial court ruled the alleged cause of action was subject to sovereign immunity. The trial court provided Sanders with an opportunity to amend the petition. The trial court's order was not an abuse of discretion or contrary to law.

VII. Conclusion

¶56 We conclude the interlocutory order appealed by Sanders could not be used to invoke appellate jurisdiction, and the appellate opinion by the Court of Civil Appeals must be vacated and withdrawn from publication. We conclude the petition in error may be recast into an application to assume original jurisdiction and petition for a supervisory writ of prohibition. We conclude we need not provide the parties with an opportunity to brief on the jurisdictional and recasting issues, and our recasting is proper for this controversy.

¶57 We conclude The Governmental Tort Claims Act makes licensed medical professionals to be "employees" of this state, regardless of the place in this state where duties as employees are performed, when the licensed medical professionals are under contract, including when under contract as an independent contractor, with city, county, or state entities and providing medical care to inmates or detainees in the custody or control of law enforcement agencies.

¶58 A petition for certiorari to the Court of Civil Appeals was previously granted. The opinion of the Court of Civil Appeals is vacated and withdrawn from publication. We assume original jurisdiction. Sanders' petition for a writ of prohibition is denied.

¶59 CONCUR: ROWE, C.J.; KUEHN, V.C.J.; WINCHESTER, EDMONDSON, COMBS, GURICH, DARBY, and KANE, JJ.

FOOTNOTES

¹ In re S.J.W., 2023 OK 49, ¶7, 535 P.3d 1235, 1240 ("When a case comes before us on appeal, this Court has a duty to inquire into our own jurisdiction as well as the jurisdiction of the lower court."); Johnson v. Snow, 2022 OK 86, n.9, 521 P.3d 1272, 1277 (same); Hall v. The GEO Group, Inc., 2014 OK 22, ¶12, 324 P.3d 399, 404 (same).

² See, e.g., Stites v. DUIT Constr. Co., 1995 OK 69, 903 P.2d 293(Court dismissed an untimely appeal and vacated the opinion of the Court of Civil Appeals).
Our appellate jurisdiction was invoked by a petition for certiorari previously granted herein and we address a jurisdictional issue not previously addressed by the Court of Civil Appeals. Beyrer v. The Mule, LLC, 2021 OK 45, ¶9 & n.9, 496 P.3d 983, 987.

³ See, e.g., A--Plus Janitorial & Carpet Cleaning v. Employers' Workers' Comp. Ass'n, 1997 OK 37, ¶6, 936 P.2d 916, 921 ("When the plaintiffs failed timely to amend, the defendant agents pressed for a 'final order of dismissal.'").

⁴ We noted 51 O.S.1981, §§151 et seq., The Political Subdivision Tort Claims Act, was amended "and renamed The Governmental Tort Claims Act. 51 O.S.Supp.1984, §151." Frazier, 1989 OK 73, n.3, 775 P.2d at 283.

⁵ Characterizing a dismissal order granting leave to amend as a nonappealable interlocutory order in Frazier and Brown is consistent with Kelly v. Abbott, 1989 OK 124, 781 P.2d 1188. In Kelly we noted "in Merchants Delivery Service v. Joe Esco Tire Co., [1972 OK 82] 497 P.2d 766. . . that such an order [a demurrer to a petition] was not a final order because the plaintiffs in that action were still free to move to amend their petition." Kelly, ¶9, 781 P.2d at 1190-91 (partial citation deleted and explanation added).

⁶ Dutton v. City of Midwest City, 2015 OK 51, n. 48, 353 P.3d 532, 545 (In Oklahoma, a right to appeal from an exercise of judicial discretion in cases of law and equity, excluding criminal matters, is a constitutional right subject to legislative requirements for the manner invoking that appellate jurisdiction.) (citing Okla. Const. Art. 7 § 4; Wells v. Shriver, 1921 OK 122, 197 P. 460, 478--79).

⁷ Meadows v. Pittsburg County Bd. of County Comr's, 1995 OK 65, ¶ 4, 898 P.2d 741, 743--44 (Court discussed timeliness of an appeal and the form of a judgment in a proceeding involving The Governmental Tort Claims Act: "[we] conclude that the appeal must commence from an order conforming to 12 O.S.Supp.1993 §696.3."); Rodgers v. Higgins, 1993 OK 45, ¶¶10-12, 871 P.2d 398, 404-06 (principle of legislative control over the form and substance of a judgment for the purpose of an appeal in a common-law action and applying a former version of 12 O.S. §696.1).

⁸ See, e.g., Long v. McMahan, 1952 OK 35, 241 P.2d 185, 186 (The absence of an appealable order or judgment in the appellate record and in which it is not made to appear by a party that such order or judgment is of record in the trial court; then the appeal presents no question for the Court for its determination and the appeal will be dismissed.).

⁹ Appellant's record on accelerated appeal has a Court Clerk's Certification dated August 21, 2023, and the record is truncated with respect to any docket events that may have occurred after the date of the clerk's certification as well as any docketed events prior to certification that are not included as part of the appellate record.

¹⁰ Sanders' petition in error identifies the dismissal order granting leave to amend as the "Order from which appeal is taken." Petition in Error, No. 121,589, Sept. 11, 2023, at pg. 3, & Exhibit A.

¹¹ State ex rel. Okla. Bd. of Med. Licensure & Supervision v. Pinaroc, 2002 OK 20, n.13, 46 P.3d 114(citing 12 O.S.Supp.2000, §990A (A) & (F)).

¹² Willitt v. ASG Industries, 1978 OK 1, 572 P.2d 1296, 1297.

¹³ Johnson v. Johnson, 1983 OK 117, 674 P.2d 539, 542.

¹⁴ Laws 1993, c. 351, § 9, eff. Oct. 1, 1993 (enacted 12 O.S. §696.2(C) which stated in part: "The filing with the court clerk of a written judgment, decree or appealable order, prepared in conformance with Section 10 of this act [12 O.S. §696.3] and signed by the court, shall be a jurisdictional prerequisite to the commencement of an appeal." (citation added).

Sanders' reliance upon the dismissal order for appellate jurisdiction presents an issue whether the "jurisdictional prerequisite" language in 12 O.S. §696.2 references (1) solely the requirements of §696.3 and the form of the order, or (2) includes additional language in the §696.2 concerning a "written judgment, decree or appealable order." Due to the disposition of the appellate cause we need not analyze this issue.

¹⁵ See, e.g., McMillian v. Holcomb, 1995 OK 117, ¶12, 907 P.2d 1034(supplemental petition cured a premature appeal); State ex rel. Okla. Bd. of Med. Licensure and Supervision v. Pinaroc, 2002 OK 20, ¶¶16-18, 46 P.3d 114(supplemental petition in error and Court's rules discussed).

¹⁶ Assessments for Tax Year 2012 of Certain Properties Owned by Throneberry v. Wright, 2021 OK 7, ¶61, 481 P.3d 883, 907.

¹⁷ Oglesby, 1992 OK 61, ¶13, 832 P.2d at 842.

¹⁸ Stockbridge Energy, LLC v. Taylor, 2015 OK 61, 359 P.3d 181.

¹⁹ Evers v. FSF Overlake Assocs., 2003 OK 53, ¶18, 77 P.3d 581, 587 (appellate court will not make first instance determinations of disputed law or fact issues).

²⁰ Indep. Sch. Dist. No. 52 of Okla. Cty. v. Hofmeister, 2020 OK 56, ¶54, 473 P.3d 475, 498.

²¹ FDIC v. Tidwell, 1991 OK 119, ¶11, 820 P.2d 1338, 1342 (citing In re B.C., 1988 OK 4, 749 P.2d 542, 544; Prock v. Dist. Crt. of Pittsburg Cty, 1981 OK 41, 630 P.2d 772, 775); cf. Smith v. Moore, 2002 OK 49, ¶3, 50 P.3d 215, 217 ("Even though this case is not appealable . . . This Court looks to the content and substance of an instrument filed in this Court rather than its title.") (material omitted).

²² See, e.g., Miami Business Services, LLC. v. Davis, 2013 OK 20, ¶7, 299 P.3d 477, 480-82 (recast cause as an application to assume original jurisdiction, petition for writ of mandamus, and ordered a party to file an application, brief, and appendix in accordance with Rule 1.191 of the Oklahoma Supreme Court Rules).

²³ See, e.g., Christian v. Gray, 2003 OK 10, ¶¶3, 40, n.3, 65 P.3d 591, 596, 608 (Court recast appellate certiorari of an interlocutory order to a request for a supervisory writ and explained (1) propriety of a procedure applying Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), in trial courts, (2) the parties presented an issue of law reviewed de novo and on an issue of first impression, and (3) recast was procedurally proper.).

²⁴ Shawareb v. SSM Health Care of Okla., Inc., 2020 OK 92, ¶¶29-30, 480 P.3d 894, 905-06 (one of the elements considered when determining if prejudice is suffered by a party from a lack of notice and an opportunity to submit legal and factual material prior to a judicially altering event includes analysis of potential prejudicial effect of procedures upon outcomes).

²⁵ In re Guardianship of Berry, 2014 OK 56, n.22, 335 P.3d 779, 793 (explaining Liberty Bank and Trust Co. v. Rogalin, 1996 OK 10, 912 P.2d 836, 839, and stating "a party's right to seek appellate review of a judgment yet to be made, and those interlocutory adjudications preceding it, are not prejudiced by the Court's dismissal of a premature appeal for lack of an appealable judgment").

²⁶ Knox v. O. G. & E. Co., 2024 OK 37, ¶¶20-21, 549 P.3d 1260, 1268 (alleged error whether petition failed to state a claim is reviewed de novo in an appellate proceeding).

²⁷ State ex rel. Dept. of Public Welfare v. Martin, 1977 OK 186, 570 P.2d 623(demurrer based upon governmental immunity overruled by trial court was reviewed by an extraordinary supervisory writ) (overruled on other grounds in Hershel v. Univ. Hosp. Found., 1980 OK 60, 610 P.2d 237); White v. Wint, 1981 OK 154, n.6 & ¶5, 638 P.2d 1109, 1112 (The former "general" demurrer to a petition was a form of pleading used to challenge the legal sufficiency of a petition while admitting facts as stated in the petition for the purpose of the demurrer.).

²⁸ See, e.g., Powers, v. Dist. Crt. of Tulsa Cty., 2009 OK 91, ¶10, 227 P.3d 1060, 1069-70 (an appellant as well as a petitioner in an independent writ proceeding must produce a record showing alleged error).

Another example of similar standards of review occurs when reviewing discovery orders. See, e.g., Farmers Ins. Co., Inc. v. Peterson, 2003 OK 99, ¶ 8, 81 P.3d 659, 661 (abuse of discretion standard applied in original writ proceeding reviewing discovery order) Royal Hot Shot Investments, Inc., v. Keeton, 2024 OK 70, ¶13, 561 P.3d 59, 63 (trial court's discovery order will not be disturbed on appeal absent a finding of abuse of discretion).

²⁹ See, e.g., James v. Rogers, 1987 OK 20, ¶5, 734 P.2d 1298, 1299 (petitioner for prohibition must show elements of the writ); Chandler U.S.A., Inc. v. Tyree, 2004 OK 16, ¶¶24-25, 87 P.3d 598, 604-05 (petition for mandamus must show the elements of the writ with the facts necessary to support its issue).

³⁰ Progressive Direct Ins. Co. v. Pope, 2022 OK 4, ¶19, 507 P.3d 688, 694-95 ("[T]he meaning, construction, or interpretation of statutory language presents an issue of law. A trial court's judgment based upon application of statutory language is reviewed de novo in an appeal from the judgment."); Heffron v. Dist. Crt. Okla. Cty, 2003 OK 75, ¶15, 77 P.3d 1069, 1076 (In an extraordinary supervisory writ proceeding the Court explained "a legal question concerning statutory interpretation, our review is de novo. A legal question involving statutory interpretation is subject to de novo review... i.e., a non-deferential, plenary and independent review of the trial court's legal ruling) (citation omitted).

³¹ 51 O.S.2021, §151, states "This act shall be known and may be cited as 'The Governmental Tort Claims Act.'"

³² State ex rel. Okla. Depart. of Public Safety v. Gurich, 2010 OK 56, ¶6, 238 P.3d 1, 3 (in a supervisory writ proceeding the Court stated "the applicability of a GTCA immunity provision presents an issue of law").

³³ An appellate adjudication of a trial court petition's sufficiency is enforced in the trial court by means of an appellate mandate, one of several types of a writ of mandamus, Daniel v. Daniel, 2001 OK 117, n.8, 42 P.3d 863, 868; Cathey v. Bd. of Cty. Com'rs for McCurtain Cty., 2023 OK 108, ¶22, 553 P.3d 22, 26.

³⁴ Galbraith v. Galbraith, 2024 OK 43, ¶7, 550 P.3d 942, 945; Farley v. City of Claremore, 2020 OK 30, ¶10, 465 P.3d 1213, 1221.

³⁵ See, e.g., State ex rel. Bd. of Regents of Univ. of Okla. v. Lucas, 2013 OK 14, ¶¶ 6--13, 297 P.3d 378, 382-385 (petition for interlocutory certiorari review recast to a request for supervisory review of an interlocutory order); Gaylord Entertainment Co. v. Thompson, 1998 OK 30, ¶16, 958 P.2d 128; (a claimed erroneous interlocutory denial of a motion to dismiss addressing whether plaintiff possessed a cause of action may be addressed by an extraordinary supervisory writ proceeding); Stewart v. Judge of the Fifteenth Jud. Dist., 1975 OK 156, ¶8, 542 P.2d 945, 947-48 (addressed "the question of vacation of appealable orders and judgments of courts of record" in proper circumstances by an extraordinary writ issued pursuant to Okla. Const. Art. 7 § 4, and stated "we see no reason to decline such an action;" and also addressed Court's authority to vacate orders of an administrative agency as well as an administrative order of a court).

³⁶ Russell v. Henderson, 1979 OK 164, ¶2, 603 P.2d 1132, 1134.

³⁷ Commissioners of the Land Office of Oklahoma v. Brunson, 1935 OK 737, ¶13, 51 P.2d 500, 502 (motion to dismiss appeal for lack of appellate jurisdiction possessed "merit" since party's motion for new trial did not extend the time to appeal, but the trial court was without jurisdiction in a publici juris matter and Court granted relief with the "same result" that could issue by prohibition).

³⁸ Federal Deposit Ins. Corp. v. Tidwell, 1991 OK 119, ¶ 11, 820 P.2d 1338(Court may exercise its discretion to recast a non-appealable order as an original action when issues of first impression are presented).

³⁹ BS&B Safety Systems, LLC v. Edgerton, 2023 OK 89, ¶1, 535 P.3d 1283(appellate cause recast as an application to assume original jurisdiction and Court adjudicated a trial court procedural issue within a context of statutory legislative intent for that issue); Moncrieff--Yeates v. Kane, 2013 OK 86, ¶12, 323 P.3d 215, 218 (discussed recasting and noted factors including first impression issues, historically recognized legal claims or issues in original jurisdiction proceedings, and the remedial scope of relief in the Court when issuing extraordinary writs); Scruggs v. Edwards, 2007 OK 6, ¶5, 154 P.3d 1257, 1260 (certiorari of an interlocutory order recast to an application for extraordinary relief and assumption of original jurisdiction because the matter was one of first impression, to serve the interests of judicial economy, and clarify new procedure).

⁴⁰ Hines v. Clendenning, 1970 OK 28, 465 P.2d 460, 461 (assumed jurisdiction due to the public nature of the controversy and new statutes); Orthopedic Clinic v. Jennings, 1971 OK 16, 481 P.2d 139, 140 (jurisdiction assumed because new procedural questions were presented involving vacating judgments and appeals).

⁴¹ Sanders v. Followell, 1977 OK 143, 567 P.2d 84, 86 (a publici juris issue with a potential for repeated recurrence); Scruggs v. Edwards, 2007 OK 6, ¶5, 154 P.3d 1257, 1260 ("assuming original jurisdiction serves the interests of judicial economy").

⁴² Rocket Properties, LLC v. LaFortune, 2022 OK 5, ¶1, 502 P.3d 1112, 1113 ("the Court may assume jurisdiction in a publici juris controversy where there is an urgency and need for a judicial determination").

⁴³ See, e.g., Jackson Cnty. Emergency Med. Serv. Dist. v. Kirkland, 2024 OK 4, ¶11, 543 P.3d 1219, 1222 ("We assumed original jurisdiction to address the first impression issues by opinion."); Rocket Properties, LLC v. LaFortune, 2022 OK 5, ¶1, 502 P.3d 1112, 1113 ("the Court may assume jurisdiction in a publici juris controversy where there is an urgency and need for a judicial determination"); State ex rel. Okla. Depart. of Public Safety v. Gurich, supra, at note 32 construing 51 O.S. §155; State ex rel., Okla. Depart. of Corrections v. Burris, 1995 OK 42, 894 P.2d 1122(construing 51 O.S. §155); State ex rel. Dept. of Public Welfare v. Martin, supra note 27; Hampton v. Clendinning, 1966 OK 51, 416 P.2d 617(plaintiff's cause of action at the time it was filed did not exist in Oklahoma due to doctrine of intrafamily immunity and prohibition issued to prevent further exercise of jurisdiction against the defendant).

⁴⁴ See, e.g., Okla. Pub. Emps, Ass'n v. Okla. Military Dep't, 2014 OK 48, ¶35, 330 P.3d 497, 510 (parties showed "competing public interests" and these interests were "well within the trial court's ability to weigh"); cf. Assessments for Tax Year 2012 of Certain Properties Owned by Throneberry v. Wright, 2021 OK 7, ¶48, 481 P.3d 883, 904 (the Legislature may statutorily determine the prominence between two necessarily conflicting public policies).

⁴⁵ Watchorn Basin Ass'n v. Oklahoma Gas & Elec. Co., 1974 OK 27, 525 P.2d 1357, 1359 ("prohibition being an extraordinary writ, resort to it cannot be had when the ordinary and usual remedies are available, and the writ cannot take the place of, or be substituted for, appeal"); Maree v. Neuwirth, 2016 OK 62, ¶6, 374 P.3d 750, 752 (mandamus will not issue when a party has a plain and adequate remedy in the ordinary course of the law).

⁴⁶ Dutton v. City of Midwest City, 2015 OK 51, n.71, 353 P.3d 532, 548 (writ may not issue to resolve a question publici juris when an alternative adequate remedy exists).

⁴⁷ Cf., Westinghouse Electric Corp. v. Grand River Dam Auth., 1986 OK 20, ¶21, 720 P.2d 713, 720 (Court recognized the public interest exception to the mootness doctrine, but dismissed the appeal noting a decision by a government agency does not necessarily impact upon a vital public interest and the party failed to show a public interest involved).

⁴⁸ See, e.g., Boston v. Buchanan, 2003 OK 114, n.9, 89 P.3d 1034, 1044 (a court's docket control creates "economy of time and effort for itself, for counsel, and for litigants") (citing Landis v. North American Co., 299 U.S. 248, 254-55, 57 S. Ct. 163, 81 L. Ed. 153 (1936) (a court has power to stay proceedings and docket control to create economy of time and effort for the court, for counsel, and for litigants by an exercise of judgment weighing competing interests)).

⁴⁹ Young v. Station 27, Inc., 2017 OK 68, n.48, 404 P.3d 829, 839.

⁵⁰ Hamilton v. Northfield Ins. Co., 2020 OK 28, ¶8, 473 P.3d 22, 26.

⁵¹ In re S.J.W., 2023 OK 49, ¶26, 535 P.3d 1235, 1246.

⁵² Joiner v. Brown, 1996 OK 112, ¶6 & n.4, 925 P.2d 888, 890.

⁵³ We examine the parties' claims preserved before the trial court. Mandamus or prohibition may issue to correct a District Court's order that is contrary to authority or an abuse of discretion, Inhofe v. Wiseman, 1989 OK 41, 772 P.2d 389, 391; and request for a writ is based, in the absence of unusual circumstances, upon preserving the controverted legal issue with the trial court's exercise of discretion in the first instance, In re Guardianship of Berry, 2014 OK 56, ¶85, 335 P.3d 779, 806. See Scruggs v. Edwards, 2007 OK 6, ¶6, 154 P.3d 1257, 1261 (rule requiring trial court preservation prior to review by supervisory writ); Kincannon v. Pugh, 1926 OK 125, ¶¶14-15, 243 P. 945, 947 (recognized exceptions to general rule).

⁵⁴ Laws 2007, c.139, § 1 (eff. Nov. 1, 2007), creating 51 O.S.Supp.2007, §152(6)(b)(6), now codified at 51 O.S.Supp.2024, §152(7)(b)(7).

⁵⁵ Teeter v. City of Edmond, 2004 OK 5, n.2, 85 P.3d 817, 819 (generally, provisions of The Oklahoma Governmental Tort Claims Act applicable are those in effect on the date the alleged injury occurred) (citing Moran v. City of Del City, 2003 OK 57, n.2, 77 P.3d 588, 590).

⁵⁶ See Rocket Properties, LLC v. LaFortune, 2022 OK 5, ¶10, 502 P.3d 1112, 1114 (explaining Barrios and stating the Legislature amended the GTCA in 2014 to specify that the Act applied to tort suits alleging violations of constitutional rights).

⁵⁷ Moran v. City of Del City, 2003 OK 57, ¶6, 77 P.3d 588, 590; 51 O.S.2021, §152.1(B): "B. The state, only to the extent and in the manner provided in this act, waives its immunity and that of its political subdivisions. In so waiving immunity, it is not the intent of the state to waive any rights under the Eleventh Amendment to the United States Constitution.".

⁵⁸ Moran supra at note 57; Tuffy's Inc. v. City of Oklahoma City, 2009 OK 4, ¶7, 212 P.3d 1158, 1163 ("Governmental accountability is extended to torts for which a private person would be liable, unless they are committed outside of the course and scope of employment or unless they are committed in bad faith or in a malicious manner."); Farley v. City of Claremore, supra note 34, at 2020 OK 30, ¶47, 465 P.3d at 1237 (characterizing a party's conduct as negligence or intentional conduct or something between the two is generally understood as an assessment on a continuum of culpability or tort liability).

51 O.S.2021, §153(A) states in part: "The state or a political subdivision shall be liable for loss resulting from its torts or the torts of its employees acting within the scope of their employment subject to the limitations and exceptions specified in The Governmental Tort Claims Act and only where the state or political subdivision, if a private person or entity, would be liable for money damages under the laws of this state."

⁵⁹ 51 O.S.Supp.2022, § 155, begins with: "The state or a political subdivision shall not be liable if a loss or claim results from: 1. Legislative functions; 2. Judicial, quasi-judicial, or prosecutorial functions, other than claims for wrongful criminal felony conviction resulting in imprisonment provided for in Section 154 of this title; 3. Execution or enforcement of the lawful orders of any court;...."

⁶⁰ Barrios, 2018 OK 90, at n.5, 432 P.3d at 236.

⁶¹ Sanders' Petition, pg.2, April 25, 2023 (O.R. Vol. 1, Tab 1).

⁶² Plaintiff's Response to Turn Key Health Clinic, LLC's Motion to Dismiss, pg.5 (June 7, 2023) (relying in part on two lower federal court opinions) (O.R. Vol. II, Tab 3).

⁶³ Compare 51 O.S.2021, §155 (18) with 51 O.S.Supp.1984, §155 (18) (Laws 1984, c. 226, § 6, eff. Oct. 1, 1985).

⁶⁴ See, e.g., Megan E. Mowrey, L. Stephen Cash, & Thomas L. Dickens, An Examination of the Business Form Decision for Professional Service Firms, 28 Seton Hall Legis. J. 355, 356-57 (2004) ("For example, certain professionals, such as accountants, architects, dentists, lawyers, and physicians, are prohibited under state law from doing business as a corporation.") (citing M. Shaun McGaughey, Limited Liability Partnerships: Need Only Professionals Apply?, 30 Creighton L. Rev. 105, 108 (1996)).

⁶⁵ 18 O.S.2021, §802 (enacted by Laws 1961, p. 204, § 2, emerg. eff. July 26, 1961) ("This act shall be so construed as to effectuate its general purpose of making available to professional persons the benefits of the corporate form for the business aspects of their practices while preserving the established professional aspects of the personal relationship between the professional person and those he serves.").

⁶⁶ Section 803 of the Act, with citation references omitted, states in part:

A. As used in the Professional Entity Act, unless the context clearly indicates that a different meaning is intended: 1. "Associated act" means the Oklahoma General Corporation Act, in the case of a corporation; the Uniform Limited Partnership Act of 2010, in the case of a limited partnership; or the Oklahoma Limited Liability Company Act, in the case of a limited liability company; . . .

. . . B. The definitions of the applicable associated act shall apply to the Professional Entity Act, unless the context clearly indicates that a different meaning is intended.

⁶⁷ Section 804 of the Act states in part: "A professional entity may be formed or qualified to render professional services by filing the appropriate instrument required by the associated act with the Secretary of State." 18 O.S.Supp.2024, §804 (as amended Laws 2024, c. 120, § 2, eff. Nov. 1, 2024).

⁶⁸ 18 O.S.2021, §803(6) definition of "professional service" includes, but is not limited to: "a physician, surgeon or doctor of medicine," "an osteopathic physician or surgeon," "a physical therapist," and "a registered nurse."

⁶⁹ See, e.g., Carbajal v. Precision Builders, Inc., 2014 OK 62, ¶3, 333 P.3d 258, 260 (quoting Page v. Hardy, 1958 OK 283, 334 P.2d 782, 784-85) (whether one is an independent contractor is based upon various factors, including, but not limited to, whether or not the work performed involves a distinct occupation or business for others; the kind of occupation with reference to whether, in the locality, the work is usually done under the direction of an employer or by a specialist without supervision as to the nature of work performed; and the skill required in the particular occupation).

⁷⁰ Moran, 2003 OK 57, ¶8, 77 P.3d at 591 (citing In re Baby Girl L., 2002 OK 9, ¶ 21, 51 P.3d 544, 554; Pellegrino v. State ex rel. Cameron Univ. ex rel. Bd. of Regents of State, 2003 OK 2, ¶ 16, 63 P.3d 535, 540).

⁷¹ Barrios, 2018 OK 90, n.5, 432 P.3d at 236.

⁷² Speight v. Presley, 2008 OK 99, ¶13, 203 P.3d 173, 176 (citing DeCorte v. Robinson, 1998 OK 87, ¶12, 969 P.2d 358.)

⁷³ Speight v. Presley, 2008 OK 99, ¶13, 203 P.3d at 176 (citing, Nelson v. Pollay, 1996 OK 142, n.23, 916 P.2d 1369, 1374).

⁷⁴ Tuffy's Inc. v. City of Oklahoma City, supra at note 58, 2009 OK 4, ¶8, 212 P.3d at 1163.

⁷⁵ Cf., Nelson v. Pollay, 1996 OK 142, ¶7, 916 P.2d 1369, 1373-74 (explaining former 51 O.S. §155(5) and its distinction between different duties performed by certain physicians and the "protection of respondeat superior liability" based upon which duties were performed).

⁷⁶ Assessments for Tax Year 2012 of Certain Props. Owned by Throneberry v. Wright, 2021 OK 7, n.21, 481 P.3d 883(citing Smicklas v. Spitz, 1992 OK 145, 846 P.2d 362; Matter of Phillips Petroleum Co., 1982 OK 112, 652 P.2d 283, 285).

⁷⁷ Knox v. O. G. & E. Co., 2024 OK 37, ¶¶26-37, 549 P.3d at 1270-1275.

⁷⁸ Moran v. City of Del City, supra at note 57, quoting 51 O.S.2021, §152.1(B).

⁷⁹ Spencer v. Nelson, 2024 OK 63, ¶9, 557 P.3d 144, 149 (The purpose of a motion to dismiss is to test the law that governs the claim, not to examine and reach conclusions about the underlying facts.).

⁸⁰ A 12 O.S. §2012(B)(6) motion to dismiss should be denied "[i]f relief is possible under any set of facts which can be established and are consistent with the allegations;" and a petition may be dismissed "for lack of a cognizable legal theory or for insufficient facts under a cognizable legal theory," Miller v. Miller, 1998 OK 24, ¶15, 956 P.2d 887, 894. A court considers when a plaintiff's "petition alleges facts upon which relief may be available." A--Plus Janitorial & Carpet Cleaning v. The Employers' Workers' Comp. Ass'n, 1997 OK 37, ¶9, 936 P.2d 916, 922 (emphasis added and in original). A cause of action (or claim for relief) is defined using the transaction, occurrence, or wrongful act. Tulsa Indus. Auth. v. City of Tulsa, 2011 OK 57, n.64, 270 P.3d 113, 130 (citing Chandler U.S.A., Inc. v. Tyree, 2004 OK 16, n. 3, 87 P.3d 598, 601).

⁸¹ While a burden of proof as to any particular fact rests upon the party asserting such fact, Colton v. Huntleigh USA Corp., 2005 OK 46, ¶ 10, 121 P.3d 1070, 1073, for the purpose of a 12 O.S. §2012(B)(6) motion the Oklahoma Pleading Code requires "a short and plain statement of the claim consisting of simple, concise, and direct averments showing that the pleader is entitled to relief," Brown v. Founders Bank and Trust Co., 1994 OK 130, ¶17, 890 P.2d 855, 864.