Dispositions Other Than By Published Opinion | Aug. 2, 2023
Oklahoma Court of Civil Appeals
Division I
Division II
120,988 – The Bank of New York Mellon, as Successor Trustee of JPMorgan Chase Bank, as Trustee for Novastar Mortgage Funding Trust, Series 2003-2, Novastar Home Equity Loan Asset-Backed Certificates, Series 2003-2, Plaintiff/ Appellee, v. Richard A. Macomb, a/k/a Richard A. Macomb, IV, Defendant/ Appellant, and Spouse if any of Richard A. Macomb, John Doe, Occupant; Vera Aktansel; Andrea J. Farley, Capital One Bank (USA), N.A. Barclays Bank Delaware, Delia F. Macomb a/k/a Delia F. Faura and Wende Leigh Macombe, Defendants. Appeal from the District Court of Cleveland County, Hon. Thad Balkman, Trial Judge. Richard Macomb (Macomb) appeals summary judgment in favor of The Bank of New York Mellon, as Successor Trustee to JPMorgan Chase Bank, as Trustee for Novastar Mortgage Funding Trust, Series 2003-2, Novastar Home Equity Loan Asset-Backed Certificates Series 2003-2 (BONY) and third-party defendant, loan servicer PHH Mortgage Corporation as successor by merger to Ocwen Loan Servicing, LLC (“Ocwen”) in this mortgage foreclosure action. BONY brought this action to foreclose upon a Note and Mortgage granted by Macomb. Macomb asserted counterclaims against BONY and third-party claims against Ocwen for breach of fiduciary duty, intentional infliction of emotional distress, tortious interference with a business relationship and breach of contract, asserting that BONY and/or Ocwen misapplied or failed to accept payments on the Note. On summary judgment, BONY failed to establish prima facie evidence that it was a holder entitled to enforce the Note secured by the mortgage at the time the proceeding was filed. We reverse the trial court’s Journal Entry of Judgment of foreclosure of the lien on the property and granting BONY judgment against Macomb. We affirm the trial court’s grant of summary judgment in favor of BONY and Ocwen on Macomb’s claims for breach of fiduciary duty, tortious interference, and intentional infliction of emotional distress. We reverse summary judgment in favor of BONY and Ocwen on Macomb’s claim for breach of contract and remand this action for further proceedings consistent with our opinion. AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division II, by HIXON, J.; WISEMAN, P.J., and BARNES, V.C.J., concur. August 1, 2023
Division III
120,692 – Clara Chill and Roy Chill, Plaintiffs/Appellees, v. George Wagner and Bottom Line Investments, LLC, Defendants/Appellants. Appeal from the District Court of Marshall County, Oklahoma. Honorable Gregory L. Johnson, Trial Judge. This appeal was initiated by Defendants/Appellants, George Wagner (“Wagner”) and Bottom Line Investments, LLC (“BLI”), after the trial court awarded the Plaintiffs/Appellees, Clara Chill and Roy Chill, an implied easement across land owned by BLI. Ms. Chill and her husband, Tom Chill, previously owned approximately eight acres of land, which included the land currently owned by BLI. When Ms. Chill and Tom Chill divorced, the tract was divided and Tom Chill was awarded the land currently owned by BLI and Ms. Chill was awarded an easement in the Decree of Divorce so that she could access her home (which was located on her awarded portion of the tract). She, however, never utilized the easement awarded in the Decree. Instead, she continued to use a gravel road that was located on her ex husband’s land. BLI ultimately obtained the land owned by Tom Chill and took action to prevent Ms. Chill from using the gravel road. Ms. Chill and her son, Roy Chill, filed this action seeking an easement so that they could continue to use the gravel road. The trial court granted an easement and, after reviewing the record and applicable law, we find that the trial court did not commit error. Therefore, the Journal Entry entered by the trial court is AFFIRMED. Opinion by PRINCE, P.J.; MITCHELL, C.J., and BELL, J., CONCUR. July 31, 2023
121,142 – In the Matter of J.P., Alleged Deprived Child, Rose Bailey, Appellant, v. State of Oklahoma, Appellee. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Kevin Gray, Trial Judge. In this action to terminate parental rights, Appellant, Rose Bailey a/k/a Rose Clintsman, the biological Mother, appeals from the trial court’s order terminating her parental rights to J.P., born November 5, 2021, an adjudicated deprived child. The court appointed a Guardian ad Litem (GAL) to represent Mother during the proceeding. The GAL waived Mother’s right to a jury trial when Mother was not present in the courtroom. The court found the child was an Indian Child under the Oklahoma Indian Child Welfare Act (ICWA), 10 O.S. 2011 §40.1 et seq. The Cherokee Nation entered its appearance and agreed to the termination of Mother’s parental rights. The trial court found State demonstrated beyond a reasonable doubt by the testimony of a qualified witness that Mother’s continued custody of the child is likely to result in serious emotional or physical damage/harm to the child. The court found active efforts to provide remedial services and rehabilitative programs to prevent the breakup of the Indian family have been made and have proven unsuccessful. The court determined the clear and convincing evidence demonstrated that Mother’s parental rights should be terminated pursuant to 10A O.S. 2021 §1‑4‑904(B)(5) for Mother’s failure to correct the conditions of possessing/using illegal drugs/addiction and failure to maintain safe and/or sanitary home. The court also concluded it would be in the child’s best interest to terminate Mother’s parental rights. We hold the court erred when it accepted the GAL’s waiver of Mother’s substantial right to a jury trial. For this reason, we REVERSE AND REMAND this proceeding for a new trial. Opinion by BELL, J.; MITCHELL, C.J., CONCURS, and PRINCE, P.J., CONCURS IN RESULT. July 31, 2023
120,880 – Michael Walker, Plaintiff/Appellant, v. The State of Oklahoma, ex., rel., Service Oklahoma, f.k.a. The Department of Public Safety, Defendant/Appellee. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Anthony J. Miller, Trial Judge. Michael Walker is appealing the district court’s order sustaining the revocation of his driver’s license. He contends the court erred in finding the arresting officer had probable cause to arrest him for driving under the influence of alcohol, and the court erred in restricting the times and purposes for which he may drive while the revocation of his driver’s license is modified. We hold the court properly found the police officer had probable cause to arrest him, but the court did not have statutory authority to limit the times and purposes for which Walker may drive while his driver’s license is modified. The district court’s order as to the revocation of Walker’s driver’s license is AFFIRMED, and the limitations on the modification of Walker’s driver’s license beyond those provided in 47 O.S. Supp. 2019 §754.2 are REVERSED. Opinion by MITCHELL, C.J.; PRINCE, P.J., and BELL, J., concur. July 28, 2023
120,987 – Elite Properties, Inc., Petitioner, Wesco Insurance Company, Insurance Carrier, v. Bill E. Todd, Respondent. Appeal from the Workers’ Compensation Commission of Oklahoma. Panel En banc. Respondents/Appellants, Elite Properties, Inc. (Employer), and Wesco Insurance Company, seek review of the Workers’ Compensation Commission’s (Commission) order affirming an Administrative Law Judge’s (ALJ) decision finding that Claimant/Appellee, Bill E. Todd, sustained a compensable on the job injury and requiring Respondents to provide Claimant with reasonable and necessary medical treatment. Respondents admit Claimant was injured in the Employer owned and controlled parking lot, but maintain the accident occurred outside the course and scope of employment because Claimant arrived at the workplace unreasonably early. Claimant was a maintenance and pool technician for Employer at five (5) large apartment complexes. Although his winter workdays began at 8:00 a.m., Claimant always arrived early to work. The undisputed evidence shows Claimant arrived at Employer’s premises by 7:00 a.m. for the entirety of his employment and Employer knew of Claimant’s usual arrival time. Other maintenance employees also typically arrive early at Employer’s premises. The record contains no evidence from Employer regarding an appropriate arrival time, nor did Employer present any written policy or procedure against early arrival. On January 15, 2021, Claimant arrived at his place of employment at 6:45 a.m. and exited his vehicle to use an employee restroom inside the maintenance facility. Thereafter, Claimant fell in the parking lot and sustained serious injuries. He has undergone numerous medical procedures and has been unable to work since that day. In view of the reliable, material, probative and substantial competent evidence in this case, we hold the Commission correctly found Claimant’s injuries arose within the course and scope of his employment. We further find the ALJ’s order, and by extension the Commission’s order, were neither “[a]ffected by other error of law” nor “[m]issing findings of fact on issues essential to the decision.” See §78(C)(4) & (8). AFFIRMED. Opinion by BELL, J.; MITCHELL, C.J., and PRINCE, P.J., concur. July 28, 2023
121,219 – Pflash Stop, LLC, an Oklahoma limited liability company, Plaintiff/Appellant, v. Ernest H. Willis, an individual, and Willis Quick Stop, Inc., f/k/a Doyle’s Quick Stop, Inc., an Oklahoma corporation; and Asap Energy, Inc., an Oklahoma corporation; and First American Title & Trust Company, an Oklahoma corporation, Defendants/Appellees, and Asap Energy, Inc., an Oklahoma corporation, Third-Party Plaintiff, v. Vision Bank, N.A., Third-Party Defendant/Appellant, and Bancfirst, an Oklahoma Banking Corporation, Modern Oil Company, Inc., an Oklahoma corporation; Seminole County Board of Commissioners; Seminole County Treasure, Third-Party Defendants. Appeal from the District Court of Seminole County, Oklahoma. Honorable Steven Kessinger, Trial Judge. Plaintiff/Appellant, Pflash Stop, LLC (“Pflash”), has appealed a Final Order of the trial court that granted summary judgment to Defendant/Appellee, ASAP Energy, Inc. (“ASAP”), on its in rem foreclosure claim for relief based on two mortgages signed by the entity from whom Pflash purchased the property, based substantially on an adjudication of various issues of fact in a prior action (that established an indebtedness of $266,316.00, against the seller, plus interest, attorneys’ fees and costs), at a time when Pflash was not a party to that action, and that further denied Pflash’s motion for summary judgment on its quiet title claim. ASAP held two mortgages on the property. At closing, the title company issued checks to ASAP in order to pay off the mortgages. ASAP, however, claimed it did not receive the correct amount and, consequently, refused to release the mortgages. The instant lawsuit was initiated by Pflash in order to quiet title to the property. Pflash claimed that ASAP already received sufficient funds to satisfy the debts secured by the mortgages and that title should be quieted in favor of Pflash. The trial court found that the amounts tendered to ASAP at the time of closing were insufficient to satisfy the debt secured by the mortgages. The trial court entered summary judgment in favor of ASAP on the Parties’ respective claims and granted an in rem foreclosure judgment. We have reviewed the record and find that the trial court did not commit error with respect to its finding that the mortgages in question secured the obligations of Willis under the separate Supply Agreements. The trial court, however, committed error to the extent it included in its judgment a determination of the amount of damages allegedly due and owing ASAP as a consequence of the breach by Willis, including an amount for lost profits under the Supply Agreements. The damages claimed by ASAP as a result of Willis’ breach of the various agreements, including any lost profits under the Supply Agreements, was an unliquidated debt at the time of Willis’ breach and the amount due, if any, with respect to the various agreements is an issue of fact that was not appropriate for resolution on summary judgment. The trial court also erred in finding that the judgment in the earlier action in Custer County, Oklahoma, is binding on Pflash, thereby precluding Pflash from challenging the amount of the debt. The Final Order of the trial court is, therefore, AFFIRMED IN PART, REVERSED IN PART, AND REMANDED for further proceedings, including a determination of the amount of the debt that was due and owing to Koch as of October 14, 2014, together with applicable interest, costs and attorneys’ fees. Opinion by PRINCE, P.J.; MITCHELL, C.J., and BELL, J., concur. July 28, 2023
Division IV