Dispositions Other Than By Published Opinion | Aug. 17, 2022

Oklahoma Court of Civil Appeals

Division II

119,856 — Enviro-Tec America, Inc., Appellant, vs. The Corporation Commission of the State of Oklahoma, Appellee.  Appeal from The Oklahoma Corporation Commission.  Appellant Enviro-Tec America, Inc., appeals from the Oklahoma Corporation Commission’s order denying its application for injunction and dismissing the application with prejudice.  After review, we conclude that Enviro-Tec’s lack of standing is dispositive in this appeal, and we decline to consider any other issues.  The Commission’s order is affirmed based on its conclusion that Enviro-Tec lacked standing to seek injunctive relief against the subsequent environmental consultant, Oklahoma Environmental Services.  AFFIRMED.  Opinion from the Court of Civil Appeals, Division II, by WISEMAN, P.J.; BLACKWELL, J., and HIXON, J. (sitting by designation), concur. Aug. 12, 2022

Division III

120,381 — Brad James Elliott, Personal Representative of the Estate of Jordan F. Tabler, Plaintiff/Appellant, v. Alasha Fox-Thompson, Pamela Capps and Peggy Tabler, Defendants/Appellees. Appeal from the District Court of Carter County, Oklahoma.  Honorable Leah Edwards, Trial Judge. Plaintiff/Appellant, Brad James Elliott, as Personal Representative of the Estate of Jordan F. Tabler (“Elliott”), seeks review of an order granting Defendants/Appellees, Alashia Fox‑Thompson, Pamela Capps, and Peggy Tabler (collectively “Defendants”), summary judgment on the basis that the claims at issue here were barred by applicable statutes of limitations:  i.e., tort claims for breach of fiduciary duty, fraud and deceit, and civil conspiracy, together with the equitable claim of unjust enrichment/disgorgement.  Jordan F. Tabler executed a Durable Power of Attorney to Ms. Fox‑Thompson during September, 2013.  Ms. Fox‑Thompson subsequently sold four parcels of real property owned by Mr. Tabler and transferred the proceeds from the sales into a joint tenancy account owned by the Defendants.  Mr. Tabler passed away during November, 2015.  After Mr. Tabler passed away, Ms. Fox‑Thompson distributed the remaining sales proceeds and other funds which belonged to Mr. Tabler to herself and the other two Defendants.  Each Defendant received $121,201.94.  Elliott was appointed Personal Representative of the Estate of Jordan F. Tabler on September 23, 2016, and filed the Petition in this case on January 26, 2018, more than two years after Mr. Tabler passed away, alleging, in addition to various tort claims, that the Defendants had been unjustly enriched and sought disgorgement of the funds in question.  We find that there are disputed questions of material fact regarding whether the statute of limitations bars the various claims, as follows:  (a) whether the limitations period was tolled during Mr. Tabler’s lifetime due to his alleged mental incapacity and, if so, (b) whether, following Tabler’s death, the Estate exercised reasonable diligence in discovering the Defendants’ alleged wrongful acts, and whether, if so established, the period of time during which the Estate was reasonably unaware that any injury had been sustained should be excluded for purposes of calculating the two‑year statute of limitations. The essential issue in this case is whether Elliott, as the PR of Mr. Tabler’s estate, will be barred by the statute of limitations from pursuing certain tort claims that arguably accrued prior to Mr. Tabler’s death and an equitable claim for unjust/enrichment that, arguably, accrued only after his passing.  Based on the record here, we find that it was error for the trial court to grant summary judgment and the matter should be REVERSED AND REMANDED for further proceedings consistent with this Opinion. Opinion by PRINCE, P.J.; MITCHELL, V.C.J., and SWINTON, J., concur. Aug. 11, 2022

119,508 — Garey Webb, Plaintiff/Appellant, v. U.S. Bank National Association as Trustee for CRMSI REMIC Series 2006-03 REMIC Pass-Through Certificates, Series 2006-03, Defendant/Appellee. Appeal from the District Court of Wagoner County, Oklahoma.  Honorable Dennis N. Shook, Trial Judge. Appellant Garey Webb challenges the trial court’s denial of his Petition to Vacate a foreclosure judgment.  In April, 2018, Appellee, U.S. Bank National Association as Trustee for CRMSI REMIC Series 2006‑03 Pass‑Through Certificates Series 2006‑03, secured a judgment of foreclose on certain residential property owned by Webb.  Webb, alleging that the judgment had been obtained through fraud, filed a verified Petition seeking to have the foreclosure vacated.  Following an evidentiary hearing, the trial court denied Webb’s Petition.  The issues center around re‑litigation of issues previously litigated in the underlying foreclosure action.  Thus, the record compels that this Court affirm the decision of the trial court. Opinion by PRINCE, P.J.; MITCHELL, V.C.J., and SWINTON, J., concur. Aug. 11, 2022

119,787 — Daniel Villanella, Individually and Julie Mullinax, Individually, Plaintiffs/Appellants, v. Shelby Walker, Defendant/Appellee. Appeal from the District Court of Tulsa County, Oklahoma.  Honorable Douglas E. Drummond, Trial Judge. This case stems from a jury verdict in an automobile negligence action.  Plaintiffs/Appellants, Daniel Villanella (“Villanella”) and Julie Mullinax, now Villanella (“Mullinax”) (collectively, the “Villanellas”) appeal a jury verdict rendered in their favor (after a two day trial), in which they were awarded a combined total of $13,500.00, in damages. Defendant/Appellee, Shelby Walker (“Walker”), hit the Villanellas’ vehicle while it was stopped at a red light.  Walker conceded that the accident was her fault but disputed the amount of damages sought by the Villanellas.  The Villanellas produced evidence indicating that they incurred medical bills in the total amount of approximately $52,500.00, which they alleged were reasonable and necessary as a result of the accident.  At trial, the Villanellas sought damages for the medical bills plus pain and suffering in the total amount of $518,000.00.  On appeal, the Villanellas argue several errors regarding the admission of evidence, including that the trial court erred in the admission of photographs of the vehicles involved in the accident, the admission of evidence of the Villanellas’ physical condition prior to the date of the accident, and that the trial court erred when it granted partial summary judgment on the issue of punitive damages and should have submitted the issue to the jury.  Prior to trial, Walker filed a Motion for Partial Summary Judgment seeking to remove the issue of punitive damages from the trial.  The trial court granted Walker’s Motion.  Walker argues that the Villanellas waived their objection to the partial summary judgment issue by not re‑urging it at trial.  We agree with Walker and hold that an issue on which partial summary judgment has been granted must be re‑urged at trial in order to preserve the right of appeal.  Thus, we find that Walker has failed to preserve for review the issue of whether there existed a genuine issue of material fact with respect to whether Walker was texting at the time of the accident, allegedly in violation of 47 O.S. § 11‑901c(A)(1), and whether such conduct, if proven at trial, would constitute reckless disregard of the rights of others and require a trial court to instruct on punitive damages.  Thus, we find no error in this case.  The Journal Entry of Judgment is, therefore, AFFIRMED. Opinion by PRINCE, P.J.; MITCHELL, V.C.J., and SWINTON, J., concur. Aug. 11, 2022

119,913 — James and Patricia Collins, Plaintiffs/Appellants v. W. Paul Phillips and Earlene Phillips, Defendants/Appellees. Appeal from the District Court of Osage County, Oklahoma.  Honorable Stuart Tate, Trial Judge. Plaintiffs/Appellants James and Patricia Collins (Tenants) appeal from an order regarding an oral real estate contract in an action for specific performance against Defendants/Appellees Paul and Earlene Phillips (Landlords).  In a detailed order, the trial court found that there was no contract between the parties, and dismissed the breach of contract claims filed by both parties.  The trial court also dismissed the causes of action for specific performance, money had and received, unjust enrichment, and constructive trust.  The trial court granted Landlords’ claim for ejectment, entitling them to possession of the subject property.  We summarily AFFIRM the order under Oklahoma Supreme Court Rule 1.202.Opinion by SWINTON, J.; MITCHELL, V.C.J., and PRINCE, P.J., concur. Aug. 11, 2022

120,037 — In the Matter of J.B., Alleged Deprived Child, Matthew Baker, Natural Father, Appellant, v. State of Oklahoma, Appellee. Appeal from the District Court of Tulsa County, Oklahoma.  Honorable Martha Rupp Carter, Trial Judge. Appellant, Matthew Wayne Baker, appeals the jury decision terminating his parental rights as to the minor child, J.B. under 10A O.S. § 1‑4‑904.  In response to Father’s challenges, we find the State did not violate Father’s due process rights, that the State clearly and convincingly made active efforts, and that the State met its burden of proof regarding the threat of potential damage to the children.  We further find that termination of Father’s parental rights was in the best interest of the child.  Consequently, we AFFIRM the decision of the trial court. Opinion by PRINCE, P.J.; MITCHELL, V.C.J., and SWINTON, J., concur. Aug. 11, 2022