Dispositions Other Than By Published Opinion | June 19, 2024
Oklahoma Court of Civil Appeals
Division I
121,746 – David A. Gourd and Susan E. Gourd, Plaintiffs/Appellants, v. Tommy Wilson Walkingstick, Defendant/Appellee, and Brenda Sullivan, individually and in her capacity as associate realtor with Crye-Leike of Arkansas, Inc., an Arkansas Corporation d/b/a Crye-Leike Realtors, Defendant, Appeal from the District Court of Adair County, Oklahoma. Honorable J. Jeffrey Payton, Trial Judge. Plaintiffs/Appellants David A. and Susan E. Gourd (Buyers) appeal from summary judgment granted in favor of Defendant/Appellee Tommy Wilson Walkingstick (Seller) in Buyers’ suit alleging violation of the Oklahoma Residential Property Condition Disclosure Act (the Act) and misrepresentation for failure to disclose the presence of mold in the real estate disclosure form. The trial court also entered summary judgment in favor of Seller’s real estate agent, Defendant Brenda Sullivan (Agent), but Buyers do not appeal the judgment in favor of Agent. Buyers failed to present any evidence creating a question of fact on whether Seller had actual knowledge of mold in the house. The material facts are undisputed and show Seller was entitled to judgment as a matter of law. We affirm. Opinion by SWINTON, P.J.; BELL, V.C.J., and PRINCE, J., concur. June 14, 2024
121,512 – Peoria Tribe of Indians of Oklahoma, Plaintiff/Appellant, v. David J. Qualls and Tony D. Holden, Defendants/Appellees. Appeal from the District Court of Pottawatomie County. Honorable John G. Canavan, Jr. Plaintiff/Appellant, Peoria Tribe of Indians of Oklahoma (Tribe), appeals from the grant of summary judgment in favor of Defendants/Appellees, David J. Qualls and Tony D. Holden, in Tribe’s action against Defendants arising from the management of Tribe’s casino by Defendants’ limited liability company, Direct Enterprise Development, LLC (DED). In 2007, Tribe contracted with DED, to develop and manage Tribe’s casino. Tribe and DED operated under the agreement and an extension thereof until 2017. Pursuant to the contract, the casino’s net revenues were used to calculated Tribe’s monthly distributions and DED’s monthly management fee. According to Defendants, after the economic downturn in 2008, Tribe sought ways to increase tribal distributions. The record shows that in response, Tribe’s independent CPA, with input from Tribe’s attorney, implemented a “depreciation add-back” to its accounting method in determining monthly net revenue. The add-back method increased Tribe’s monthly distributions and, to a lesser extent, DED’s monthly management fee. For years thereafter, the depreciation add-back and amounts associated therewith were provided in written monthly reports to Tribe’s chief, the casino general manager, Tribe’s Business Committee, the Peoria Tribe Gaming Commission (PTGC), and Tribe’s external independent auditor, as well as to the National Indian Gaming Commission (NIGC). Defendants stress they had no contract with Tribe and did not implement the add-back, calculate DED’s management fee or issue themselves checks from Tribe’s accounts. According to Tribe, Defendants concocted the depreciation add-back scheme without Tribe’s knowledge solely to inflate DED’s management fee. In 2019, the NIGC issued a Notice of Violation to Tribe threatening Tribe with millions of dollars in fines related to the use of the depreciation add-back method. Among other things, the NIGC’s letter opined DED received $2,067,561.00 in excess management fees during the subject period. Defendants point out that, during the same time period, Tribe received $5,279,923.00 in excess distributions as a result of the depreciation add-back. In response, Tribe negotiated with the NIGC to substantially lower its fine to $26,762.00 in exchange for filing suit against Defendants. Tribe stipulated that it had notice of the NIGC’s view on depreciation before the add-back was implemented. Tribe also admitted awareness of its non-compliance with NIGC regulations and acknowledged that compliance with such regulations was Tribe’s sole responsibility. The PTGC thereafter initiated proceedings against Defendants under the auspices of its authority to regulate gaming licenses and imposed civil fines of $2,067,561.00 against Defendants. Tribe then instituted the present action against Defendants in state district court to recover what it describes as “misappropriated” management fees paid to DED. Tribe’s suit asserted nine (9) claims, the first of which it later dismissed. The remaining claims were: fraud, embezzlement, unjust enrichment, money had and received, breach of fiduciary duty, constructive trust, chose in action, and enforcement of tribal judgment. The trial court granted summary judgment to Defendants on all counts. With respect to the last count, the trial court ruled the fines assessed against Defendants by the PTGC “were not authorized by the Peoria Tribal Gaming Ordinance since neither the Ordinance or the [PTGC]’s Bylaws identified any amount of potential fine or method of calculation as required by the applicable federal, state, or tribal constitutions.” We agree with the trial court that the imposition of the fine violated Defendants’ due process rights. We also hold the trial court properly granted judgment to Defendants on Tribe’s other causes of action. Tribe’s motion to supplement the record with material not presented to or considered by the trial court at the time of its decision is denied. AFFIRMED. Opinion by BELL, V.C.J., SWINTON, P.J., and PRINCE, J., concur. June 18, 2024
Division II
121,225 – Veronica Peterson, Plaintiff, vs. James Arnold Allen, Defendant/ Appellant, and State of Oklahoma, Department of Human Services, Child Support Services, Necessary Party/Appellee. Appeal from the District Court of Pontotoc County, Hon. C. Steven Kessinger, Trial Judge. In this child support action, the State of Oklahoma Department of Human Services, Child Support Services moved to dismiss enforcement of a registered foreign child support judgment from Texas because the minor child had reached the age of majority. Appellant James Arnold Allen appeals from the trial court’s order granting that motion to dismiss. After review of the record and applicable law, we affirm the decision of the trial court. AFFIRMED. Opinion from Court of Civil Appeals, Division II, by WISEMAN, P.J.; BARNES, C.J., and FISCHER, J., concur. June 12, 2024
121,403 – In the Matter of J.N., and J.N., Deprived Children, Jacob Nelson, Appellant, vs. State of Oklahoma, Appellee. Appeal from the District Court of Oklahoma County, Hon. Angela Singleton, Trial Judge. Jacob Nelson appeals a trial court order on jury verdict terminating his parental rights to his minor children, JLN and JN. The issues on appeal are whether the State of Oklahoma proved (1) at least one statutory ground for termination by clear and convincing evidence and (2) that termination of Father’s parental rights was in the children’s best interests. We find that State met its burden of proving a statutory ground for termination of parental rights and that termination of Father’s parental rights is in the children’s best interests. The trial court’s order is affirmed. AFFIRMED. Opinion from Court of Civil Appeals, Division II, by WISEMAN, P.J.; BARNES, C.J., and FISCHER, J., concur. June 12, 2024
117,545 (Consolidated with Case No. 117,654) – Maria A. Laubach, Petitioner/Appellee, vs. Paul W. Laubach, Respondent/Appellant. Appeal from Order of District Court of Blaine County, Hon. Ryan D. Reddick, Trial Judge. In this consolidated appeal, Appellant Paul Laubach seeks to obtain custody of his children from Appellee Maria Laubach. In appeal No. 117,545, Paul’s motion for new trial was not filed within the required ten days after the interlocutory custody ruling for which Paul sought a new trial. Paul’s appeal of the order denying that motion is dismissed. Paul’s appeal is limited to review of the denial of his petition to vacate the Decree on the basis of fraud. Because Paul failed to show the Decree was obtained by fraudulent testimony, the district court’s denial of Paul’s petition to vacate is affirmed. In appeal No. 117,654, Paul’s appeal of the minute order is dismissed for lack of an appealable order. The district court’s order deciding change in custody and relocation is affirmed. The district court’s order denying Paul’s motion for new trial is also affirmed. AFFIRMED IN PART, APPEAL DISMISSED IN PART. Opinion on remand from the Court of Civil Appeals, Division IV (2021), by FISCHER, J.; HIXON, P.J., and HUBER, J. (sitting by designation), concur. June 13, 2024
Division III
121,654 – Landmark Structures, l,L.P., Plaintiff/Appellant, v. City of Lone Grove and Gerard Tank & Steel, Inc., Defendants/Appellees. Appeal from the District Court of Carter County, Oklahoma. Honorable Ryan G. Hunnicutt, Judge. Plaintiff/Appellant Landmark Structures I, L.P. (Landmark) appeals from the trial court’s order denying its request for a temporary injunction and granting the motions to dismiss filed by Defendants/Appellees City of Lone Grove (Lone Grove) and Gerard Tank & Steel, Inc. (Gerard). Landmark alleged Lone Grove violated the Public Competitive Bidding Act, 61 O.S. 2021 §§101-139 (the Act), when it awarded a contract for the construction of a new water tower to Gerard. Because Landmark failed to seek further injunctive relief after the trial court’s refusal to enter an injunction, the contract has been substantially performed, and this appeal has become moot. Under these circumstances, we are required to dismiss the appeal. Opinion by E. BAY MITCHELL, P.J.; GOREE, J., and DOWNING, J., concur. June 18, 2024
Division IV
121,209 – Connie Holt Ballhorn, Robert Ballhorn and Connie Holt Bail Bonds, LLC, Plaintiffs/Appellants, vs. Oklahoma Environmental Management Authority, Defendant/Appellee. Appeal from the District Court of Canadian County, Hon. Khristan K. Strubhar, Trial Judge. Plaintiffs Connie Holt Ballhorn, Robert Ballhorn and Connie Holt Bail Bonds, LLC, appeal a judgment awarding Defendant Oklahoma Environmental Management Authority (OEMA) $173,436.93 in attorney fees and $10,648.93 in costs as the prevailing party pursuant to 12 O.S.2021, § 940. On review of the record and applicable law, we find the trial court abused its discretion by failing to apply the Burk factors in reaching the amount awarded, by failing to apportion its attorney fee award between fee-bearing and non-fee-bearing claims, and by failing to consider whether the fees bore a reasonable relationship to the $25,000 in controversy on Plaintiffs’ fee-bearing claim. We further find the trial court abused its discretion in awarding certain costs not allowable by law, as more fully set forth in our Opinion. We remand with instructions to the trial court to determine a reasonable attorney fee consistent with this opinion and to recalculate the amount of cost awarded consistent herewith. REVERSED AND REMANDED WITH INSTRUCTIONS. Opinion from Court of Civil Appeals, Division IV, by HIXON, J.; HUBER, P.J., concurs, and BLACKWELL, J., concurs in part and dissents in part. June 12, 2024
121,567 – In the Matter of the Adoption of K.G.G., a Minor Child: Pearl Seabody vs. Shari Jane Rowland. Appeal from an Order of the District Court of Canadian County, Bob H. Hughey, Associate District Judge. Pearl Seabody appeals the court’s finding that her consent was not required for the adoption of her minor child, K.G. Upon review, we affirm the trial court’s decision and hold that Ms. Seabody’s consent to the adoption was not required pursuant to 10 O.S. § 7505-4.2(H). AFFIRMED. Opinion from the Court of Civil Appeals, Division IV by BLACKWELL, J.; HUBER, P.J., and HIXON, J., concur. June 17, 2024