Dispositions Other Than By Published Opinion | July 3, 2024
Oklahoma Court of Civil Appeals
Division I
121,401 – Woodland Manor’s Best Living, and Woodland Manor T1C LLC, Plaintiffs/Appellees, vs. Gina Gotcher, Defendant/Appellant. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Tammy Bruce, Trial Judge. Defendant/Appellant, Gina Gotcher, appeals an Order granting the Plaintiffs/Appellees, Woodland Manor’s Best Living and Woodland Manor T1C LLC (collectively “Woodland”), and which directed her to vacate an apartment and an additional order granting a money judgment in the amount of $890.00. Woodland commenced a Forcible Entry and Detainer (“FED”) action when Ms. Gotcher did not pay the full amount of rent after receiving a demand from Woodland and after Woodland gave Ms. Gotcher notice of an immediate termination of her lease. Ms. Gotcher argues on appeal that she should have only been liable for rent in the amount of $207.00 per month instead of the full amount of rent included in her Lease Agreement, which was $627.00 per month, because she claims that her loss of government benefits in the amount of $420.00 per month was due to Woodlands’ failure to recertify her so that she could continue to receive the benefits. In the alterative, she argues that Woodland acquiesced in receipt of $207.00 per month in rent so the current owners of the apartment complex should be barred by promissory estoppel or by 41 O.S. § 126B, from raising her obligation from $207.00 per month to $627.00 per month. She additionally argues that it was error for the trial court to find that the eviction was proper under 41 O.S. § 132D, because Woodland did not act immediately as required by the statute. Her final argument is that the trial court committed error when it refused to abate or stay the FED action until her federal lawsuit against Woodland was resolved. We find that the trial court did not commit error when it found that Ms. Gotcher failed to pay the full amount of rent due, when it found that Ms. Gotcher should pay a money judgment in the amount of $890.00, and when it did not stay the proceedings until the federal action filed by Ms. Gotcher against Woodland was resolved. We find, however, that the eviction was not technically justified for lease violations because no ten‑day notice was given to Ms. Gotcher to allow her to cure her behavior and, in addition, that eviction was not supported by sufficient findings under 41 O.S. § 132D. Notwithstanding the improper findings (as argued under Ms. Gotcher’s third proposition of error), the Judgment of the trial court is AFFIRMED. Opinion by PRINCE, J.; SWINTON, P.J., and BELL, V.C.J., CONCUR. June 28, 2024
121,683 – Joshua A. Smith and Heather Lee Smith, husband and wife, and Matthew B. Smith, Plaintiffs/Appellants, v. David D. Duncan; David D. Duncan, PC; Mark Walraven; Anthony C. Moore; and Graft & Walraven, P.L.L.C., Defendants/Appellees. Appeal from the District Court of Custer County. Honorable Justin P. Eilers, Judge. Plaintiffs/Appellants, Joshua A. Smith, Heather Lee Smith and Matthew B. Smith, appeal from the trial court’s two orders dismissing their negligence action against Defendants/Appellees, David D. Duncan, David D. Duncan, P.C., Mark Walraven, Anthony C. Moore and Graft & Walraven, PLLC. In 2016, the mother of Joshua and Matthew Smith died, leaving the two brothers as her only heirs. At her death, their mother owned an unknown number of undivided mineral acres. The brothers hired attorney David D. Duncan and his law firm (collectively Duncan) to administer the mother’s estate. In December 2016, Duncan advised the brothers that they owned 45 mineral acres. The same month, the probate court entered its final order of distribution, but it did not specify the amount of mineral acres the brothers inherited. The following year, the brothers decided to sell their mineral interests and again retained Duncan to help them. El Gato Holdings, LLC, agreed to purchase the brother’s mineral interests for $5,000.00 per mineral acre. El Gato retained attorney Anthony Moore and his then law firm Graft & Walraven, PLLC, (collectively, along with Mark Walraven, “G&W”). According to Plaintiffs, Duncan advised G&W that the Smith brothers owned 45 undivided mineral acres. For reasons unrelated to this case, the 45 undivided mineral acre amount was changed to 42.5 acres before the sale. G&W prepared the sales contract, a mineral deed and the closing settlement statement. In early August 2017, the Smith brothers closed on the sale of their mineral acres to El Gato for the agreed price (42.5 acres x $5,000.00 = $212,500.00). El Gato later learned the brothers only owned slightly more than 21 mineral acres and it sought a refund of the overpayment. The brothers refused and El Gato filed suit. The brothers settled the case in January 2021 and refunded El Gato a little more than $100,000.00 of the contract price. The brothers contend they spent approximately $30,000.00 in attorney fees and expenses to investigate, defend and settle the lawsuit. On October 18, 2021, the Smith brothers, along with Joshua Smith’s wife, Heather (Plaintiffs), sued Defendants for negligence. Specifically, Plaintiffs claim Defendants negligently failed to perform standard title examinations on their mineral interests before the brothers sold the same to El Gato. All Defendants moved to dismiss: G&W because they, as counsel for El Gato, owed no duty to Plaintiffs; Duncan on the ground it had no duty to perform a title examination on the subject interests. Several Defendants also added a defense claim that the two-year statute of limitations for negligence expired before Plaintiffs filed their petition. Following oral arguments, the trial court granted the three dismissal motions of the G&W Defendants on the ground none of them owed Plaintiffs a duty. Following additional briefing, the trial court dismissed Plaintiffs’ claim against Duncan. Plaintiffs appeal. Upon de novo review, we conclude no relief is possible against G&W under any set of facts that could be established consistent with the allegations of Plaintiffs’ petition. G&W neither owed nor breached a duty to Plaintiffs. With respect to Plaintiffs’ claims against Duncan, we hold any damages Plaintiffs incurred were sustained in either December 2016, when the brothers inherited approximately one-half of the mineral acres they were told their mother owned, or August 2017, when they were overpaid for the interests they actually sold to El Gato. Their lawsuit against Duncan, filed in October 2021, is barred by the statute of limitations. AFFIRMED. Opinion by BELL, V.C.J.; SWINTON, P.J., CONCURS, and PRINCE, J., CONCURS SPECIALLY. June 28, 2024
121,783 – In the Matter of J.J.C., N.B.C., and R.C., Jr., Deprived Children. State of Oklahoma, Petitioner/Appellee, v. Christabel Cota, Respondent/Appellant. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Julie Doss, Trial Judge. Respondent/Appellant Christabel Cota appeals from an order terminating her parental rights to J.J.C., N.B.C., and R.C. (Children) following a jury trial. Petitioner/Appellee the State of Oklahoma sought termination on the grounds of failure to correct the conditions leading to the deprived adjudication and length of time in foster care. The jury returned verdicts finding termination was warranted on both grounds. Our review of the record shows the State presented clear and convincing evidence that Cota failed to correct the conditions leading to the deprived adjudication and that termination was in Children’s best interests. Cota argues the trial court committed fundamental error by instructing the jury on the issue of length of time in foster care because Children had not been in foster care for 15 of the 22 months preceding the motion to terminate. Cota failed to object to this instruction and has failed to show that it was fundamental error. Furthermore, clear and convincing evidence supports the jury’s verdict on failure to correct conditions and best interests. We affirm. Opinion by SWINTON, P.J.; BELL, V.C.J., and PRINCE, J., CONCUR. June 28, 2024
121,909 – Lamone M. Johnson, Petitioner/Appellant, v. Christie Quick, Defendant/Appellee. Appeal from the District Court of Pittsburg County, Oklahoma. Honorable Tim Mills, Trial Judge. Petitioner/Appellant Lamone Johnson appeals from an order denying Appellant’s motion for peremptory writ of mandamus and determining that jurisdiction is in Oklahoma County, not Pittsburg County where the motion was filed. We affirm. Opinion by SWINTON, P.J.; BELL, V.C.J., and PRINCE, J., CONCUR. June 28, 2024
Division II
121,823 – Beverly G. Stevens, Sole Trustee of the Stevens Family Trust Dated September 23, 2019, Plaintiff/Appellee, vs. 2-B Ranch, LLC, Defendant/Appellant. Appeal from the District Court of Love County, Hon. Wallace Coppedge, Trial Judge. Defendant 2-B Ranch, LLC, appeals a trial court order granting partial summary judgment in favor of Plaintiff Beverly G. Stevens, Sole Trustee of the Stevens Family Trust dated September 23, 2019, and quieting title to the property at the center of the dispute between the parties. The judgment also denies Defendant’s motion for summary judgment. The trial court determined pursuant to 12 O.S.2021 § 994(A) that there is no just reason for delay and directed that its order be filed as a final judgment. The central issue is whether there are any disputed material facts that would defeat Plaintiff’s entitlement to judgment as a matter of law. After review of the summary judgment record and applicable law, we affirm. AFFIRMED. Opinion from Court of Civil Appeals, Division II, by WISEMAN, P.J.; BARNES, C.J., and FISCHER, J., concur. July 2, 2024
Division III
Division IV
121,141 – Shelan Whitehead, an individual; and Providence Realty, LLC, an Oklahoma limited liability company, Plaintiffs/Appellees, vs. Green Meadow Realty Co., an Oklahoma corporation; Kobi Abbott; Judy Bruno; Brent Cook; Casey Cook; Vicki Davis; Chequita Hawkins; Christy Hawkins; Grant Hawkins; Jenea Heilaman; Vanessa Johnson; Betty Qualls; Kim Smith; Deborah Villanueva; and Dan Weber, Defendants/Appellants, and Kim Martin; A.B.W., Inc. d/b/a Keller Williams Realty Elite; Jennifer Arsenault; Matt Holder; Mulinix, Inc. d/b/a Keller Williams Mulinix; Bradley Warner; Keller Williams Realty; Mo Anderson; Sherry Lewis; Whittington Realty LLC; Otis Himes; McGraw Realtors; Tonua Hulette; Teje Hopson; Jyl Thomas; Midwest City-Del City-Moore Association of Realtors, Inc.; Peggy Missell; Beth Atkinson; Sharon Moore; and Penny Stancil, Defendants. Appeal from the District Court of Oklahoma County, Hon. Anthony L. Bonner, Trial Judge. Defendants/appellants, (collectively, the Green Meadow Defendant), appeal from the district court’s order denying their motion to dismiss plaintiffs/appellees Shelan Whitehead and Providence Realty, LLC’s (collectively, the Plaintiffs) Second Amended Petition pursuant to the Oklahoma Citizens Participation Act, 12 O.S.2021 §§ 1430 through 1440 (OCPA). On review, we find that the Plaintiffs established by clear and specific evidence a prima facie case for each essential element of their claims for defamation and civil conspiracy. However, we do not find that the Green Meadow Defendants have established, by a preponderance of the evidence, each element of the statute of limitations defense the Green Meadow Defendants raised in their Motion to Dismiss and Reply Brief as to the defamation claim. As to Plaintiffs’ other claims for tortious interference with prospective economic advantage, tortious interference with contract, negligence, and intentional infliction of emotional distress, we find Plaintiffs have failed to establish, by clear and specific evidence, a prima facie case for each essential element of these claims. We therefore reverse that portion of the district court’s Order denying the Green Meadow Defendants’ Motion to Dismiss pursuant to the OCPA and remand this matter for further proceedings regarding Plaintiffs’ claims for defamation and civil conspiracy. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division IV, by HUBER, P.J.; HIXON, J., concurs, and BLACKWELL, J., concurs in result. June 28, 2024
120,591 (comp. with No. 119,650) – Valley Pointe, LLC, Plaintiff/Appellant, vs. Taylor Ranch, LLC, Defendant/Appellee. Appeal from Order of District Court of Cleveland County, Hon. Wallace Coppedge, Trial Judge. Appellant Valley Pointe appeals the judgment of the district court granting Appellee Taylor Ranch’s motion for attorney fees and costs as well as the order denying Valley Pointe’s motion for new trial. The parties’ contract provides that the prevailing party in a specific performance action shall be entitled to a reasonable attorney fee. The district court ruled in favor of Taylor Ranch and we affirmed that judgment in a companion appeal No. 119,650. On review, we find that Valley Pointe has not preserved for appellate review any issue challenging Taylor Ranch’s entitlement to an award of attorney fees in this case or the amount of costs awarded. Further, we are not persuaded by Valley Pointe’s arguments that the amount of fees awarded was unreasonable. The district court’s judgment awarding attorney fees and costs to Taylor Ranch is affirmed. AFFIRMED. Opinion from Court of Civil Appeals, Division II, by FISCHER, J., BARNES, C.J., and WISEMAN, P.J., concur. July 1, 2024
120,998 – In the Marriage of William Wittmer, Petitioner/Appellant, vs. Rikki Wittmer, Respondent/Appellee, and State of Oklahoma ex rel. Child Support Enforcement, Intervenor. Appeal from the District Court of Garfield County, Hon. Dennis W. Hladik, District Judge. William Wittmer appeals a decision of the district court setting child support payment levels for 2021 and 2022, requiring him to pay Rikki Wittmer (now Peck) $800 on account of an unpaid debt, and awarding fees to Rikki. On review, we dismiss the award of attorney fees, as the agreed order awarding fees was not appealed and was entered with the consent of both parties. The remaining decisions were within the discretion of the district court, with the exception of the retroactive modification of child support for 2021 and the first portion of 2022. We reverse this part of the award and affirm all other challenged decisions of the district court. AFFIRMED IN PART, DISMISSED IN PART, REVERSED IN PART, AND REMANDED. Opinion from the Court of Civil Appeals, Division IV by BLACKWELL, J.; HUBER, P.J., and HIXON, J., concur. July 2, 2024