Dispositions Other Than By Published Opinion | Dec. 14, 2022
Oklahoma Court of Civil Appeals
Division I
120,083 – In Re The Marriage Of: Sandy J. Breeden, Petitioner/Appellant/Counter Appellee, V. Steve R. Breeden, Respondent/Appellee/Counter Appellant. Appeal from the District Court of Lincoln County, Oklahoma. Honorable Sheila Kirk, Trial Judge. Following trial on the division of marital property and debts, both parties appealed. This court is unable to determine if the trial court’s division of the marital estate is equitable, as the division includes unappraised and unaccounted for assets, as well as, Husband’s separate property. Husband was also awarded all of the debt. Further, without a proper division of property, Wife’s specific need for support alimony is unknown. Accordingly we REVERSE AND REMAND the case to determine and identify Husband’s separate property, to equitably divide the marital estate, including assets and debts, based on evidence of the assets’ value and to adjust the award of support alimony to Wife, if appropriate. Opinion by MITCHELL, V.C.J.; PRINCE, P.J., and SWINTON, J., concur. Dec. 9, 2022
120,098 – Tarren Bennett, Petitioner/Appellant, V. Kylie Werschem, Respondent/Appellee. Petitioner/Appellant. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Rodney Sparkman, Trial Judge. Tarren Bennett appeals from an order dismissing his paternity action for lack of proper venue. Appellant sought to have paternity established as to the minor child in the custody of Respondent/Appellee Kylie Werschem, who was residing in Georgia at the time the petition was filed. The trial court determined, sua sponte, that Tulsa County was not the property venue for the paternity proceeding pursuant to 10 O.S. § 7700‑605. Appellant argues that venue was proper in Tulsa County, that Appellee waived her objection to venue, and that the Uniform Child Custody Jurisdiction and Enforcement Act confers exclusive jurisdiction upon the Tulsa County district court. Appellee argues the trial court reached the correct result, but for the wrong reasons, asserting that Oklahoma does not have jurisdiction over the minor child. We REVERSE AND REMAND the matter for further proceedings consistent with this opinion. Opinion by SWINTON, J.; MITCHELL, V.C.J., and PRINCE, P.J., concur. Dec. 9, 2022
120,727 – Mid-Continent Casualty Company, an Oklahoma Corporation, Plaintiffs/Appellees, V. Wilson Paving & Excavating, Inc., an Oklahoma Corporation; Wilson Excavating, LLC, an Oklahoma Corporation, Defendants/Appellants. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Daman H. Cantrell, Trial Judge. The facts that gave birth to this consolidated appeal stem from a commercial insurance policy coverage dispute and the claims by the insured for breach of contract and for bad faith that were spawned by the dispute. Although the procedural history of this case is long and complicated, the issues here only concern whether the insured has standing to prosecute the bad faith claim and, if so, whether the trial court properly granted summary judgment in favor of the insurance carrier on the bad faith claim. Separate appeals were timely filed by the Parties from the applicable rulings by the trial court. On October 25, 2022, the Supreme Court entered an Order that consolidated the separate appeals and designated Case No. 120,727 as the surviving Case, and also directed that the consolidated appeal would continue as a summary disposition case under Oklahoma Supreme Court Rule 1.36. After de novo review of the record and applicable law, we hold that the trial court properly ruled in favor of the insured and against the insurance carrier with respect to the various standing challenges, but that, on the other hand, the trial court erred in granting summary judgment in favor of the insurance carrier and against the insured on the bad faith claim. Thus, we AFFIRM IN PART, REVERSE IN PART AND REMAND the case for further proceedings consistent with this Opinion. Opinion by PRINCE, P.J.; MITCHELL, V.C.J., and SWINTON, J., concur. Dec. 9, 2022
120,574 – Kathryn Vanderpool, Plaintiff/Appellant, v. Cynthia Vanderpool, et. al., Defendants/Appellees. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Daman H. Cantrell, Judge. In 2021, Plaintiff/Appellant, Kathryn Vanderpool, the surviving spouse of J.P. Vanderpool, deceased (Decedent), filed the instant breach of trust action against Defendant/Appellee, Cynthia Vanderpool. Cynthia was appointed to serve as Decedent’s guardian in 2009, and she served as the trustee of the J.P. Vanderpool Irrevocable Trust (Trust) from 2009 until she was replaced on September 30, 2014. The Trust assets were fully distributed and the Trust was closed in 2018. The district court dismissed Kathryn’s breach of trust action against Cynthia on the basis that the statute of limitations barred Kathryn’s action. Thereafter, the district court denied Kathryn’s motion to reconsider the dismissal order. After de novo review of the record, we cannot find the district court erred in dismissing the action. Consequently, we hold the district court did not abuse its discretion in denying the motion to reconsider. The district court’s order denying the motion to reconsider is affirmed. Opinion by BELL, P.J.; GOREE, J., and DOWNING, J., concur. Dec. 12, 2022
Division II
120,317 – In the Matter of M.W., Alleged Deprived Child, Tynisha Renee Brown, Appellant, vs. The Honorable Tom Riesen, Appellee. Appeal from an order of the District Court of Oklahoma County, Hon. Tom C. Riesen, Trial Judge. Tynisha Renee Brown appeals trial court orders finalizing the adoption of her niece MW by her foster custodian and denying Brown’s motion to reconsider that order. The sole issue Brown raises on appeal is whether the trial court abused its discretion in not providing her attorney with notice of the hearing date for her motion to suspend the adoption. After review, we conclude Brown has not shown the trial court abused its discretion or otherwise erred, and we affirm its orders. AFFIRMED. Opinion from the Court of Civil Appeals, Division II, by WISEMAN, P.J.; BLACKWELL, J., and FISCHER, C.J. (sitting by designation), concur. Dec. 7, 2022
Division III
119,941 – Aurora Loan Services, LLC, Plaintiff/Appellee, V. Barbara J. Shephard, Defendant/Appellant, and John Doe, Jane Doe, Spouse, if any, of Barbara J. Shephard, and McClain Bank, Defendants. Appeal from the District Court of McClain County, Oklahoma. Honorable Charles Gray, Trial Judge. Defendant/Appellant Barbara J. Shephard (Borrower) seeks review of a summary judgment granted to DLJ Mortgage Capital, Inc. (DLJ), alleged successor in interest to Green Tree Services, L.L.C. (Green Tree), alleged successor in interest to Plaintiff/Appellee Aurora Loan Services, LLC (Aurora). After de novo review, we find Aurora failed to provide evidentiary material showing it had standing to enforce Borrower’s note at the time it brought this action. DLJ’s status as the present holder of the note is irrelevant if its predecessor, the party who filed the lawsuit, failed to establish standing. And, because standing may be raised at any stage of the judicial process or by a court sua sponte, Borrower’s argument is not barred by either res judicata nor estoppel. We REVERSE AND REMAND. Opinion by MITCHELL, V.C.J.; PRINCE, P.J., concurs, and SWINTON, J., dissents. Dec. 9, 2022
Division IV
119,934 – Deutsche Bank National Trust Company, Plaintiff/Appellant, v. Richard Lathrop and Camela Lathrop, Defendants/Appellees, and Bobbie S. Andrews, et al., Defendants. Appeal from the District Court of Cleveland County, Hon. Thad Balkman, Trial Judge. During the pendency of this appeal, Appellees filed a motion to dismiss appeal. They assert the issue raised on appeal by Appellant is barred. We agree. The issue raised on this appeal by Appellant was settled by a previous appellate decision in this case; therefore, it is barred by the settled-law-of-the-case doctrine. Consequently, we grant Appellees’ motion to dismiss appeal. APPEAL DISMISSED. Opinion from Court of Civil Appeals, Division IV, by BARNES, P.J.; FISCHER, C.J., and HIXON, J., concur. Dec. 7, 2022
120,625 – Joseph Lee DeGiusti, individually, Plaintiff/Counter-Defendant/Appellee, v. American Southwest Mortgage Funding Corp., Defendant/Appellant, and John Steber Ridley, individually, Third-Party Defendant/Appellee, and Madison Pritchett, individually, and Regina Bozalis, individually, Plaintiffs in Intervention/Appellees, v. American Southwest Mortgage Funding Corp., Third-Party Plaintiff/Defendant/Appellant. Appeal from the District Court of Oklahoma County, Hon. Natalie Mai, Trial Judge. The appeal is dismissed because claims remain pending for adjudication that arise out of the same transaction or occurrence as the adjudicated claims and are so interrelated and intertwined with the adjudicated claims so as to defeat judicial efficiency of review. APPEAL DISMISSED. Opinion from Court of Civil Appeals, Division IV, by BARNES, P.J.; FISCHER, C.J., and HIXON, J., concur. Dec. 7, 2022
120,444 – Harold W. Brown, Plaintiff/Appellant, vs. The Town of Valley Brook; Michael Stamp, in his official capacity as the Chief of Police for the Town of Valley Brook, Defendants/Appellees; and Ryan Massengale, individually and in his official capacity as a police officer for the Town of Valley Brook; Dallas Kirby, individually, and in his official capacity as a police officer for the Town of Valley Brook; and Richard Ansohn, individually and in his official capacity as a police officer for the Town of Valley Brook, Defendants. Appeal from the District Court of Oklahoma County, Hon. Sheila Stinson, Trial Judge. Harold W. Brown appeals a trial court order dismissing his petition for assault and battery, negligence, false imprisonment, and false arrest against the Town of Valley Brook and Michael Stamp, in his official capacity as the Chief of Police for the Town of Valley Brook. We find Brown’s petition was untimely under the Governmental Tort Claims Act (GTCA), 51 O.S.2011, § 151 et seq., and affirm. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by HIXON, J.; FISCHER, C.J., and BARNES, P.J., concur. Dec. 8, 2022
120,404 – In the Matter of: Z.M.G. and D.B.G., Jr., Alleged Deprived Children, David Griffin, Appellant, vs. State of Oklahoma, Appellee. Appeal from the District Court of Custer County, Hon. Donna L. Dirickson, Trial Judge. David Griffin (Father) appeals from the “Order Sustaining State’s Petition to Terminate Parental Rights of Parents Upon a Jury Verdict.” Father alleges his due process rights were violated due to the timing of the filing of State’s amended petition to terminate his rights. He also alleges he should have been allowed to present evidence of his acquittal of the crime of child abuse against Z.M.G. to the jury. Based on our review of the record and applicable law, we affirm the Order. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by HIXON, J.; FISCHER, C.J., and BARNES, P.J., concur. Dec. 9, 2022
119,780 – In re the Marriage of: Lindsey L. Boyd, Petitioner/Appellee/Counter-Appellant, v. Charles W. Boyd, Respondent/Appellant/Counter-Appellee. Appeal from the District Court of Grady County, Hon. Joseph Z. Young, Trial Judge. Charles W. Boyd appeals from the district court’s Decree of Dissolution of Marriage, and Lindsey L. Boyd counter-appeals. We conclude Ms. Boyd’s Brief-in-chief on her counter-appeal, to which Mr. Boyd has not responded, is reasonably supportive of her allegation of error regarding whether both parties are to be equally responsible for any deficiency balance due on a certain camper following its sale by Mr. Boyd. We vacate that portion of the Decree ordering Ms. Boyd to be responsible for one-half of any deficiency following the sale. We find the remaining arguments raised by the parties warrant no relief because they raise only abstract or hypothetical questions. VACATED IN PART. Opinion from Court of Civil Appeals, Division IV, by BARNES, P.J.; FISCHER, C.J., and HIXON, J., concur. Dec. 13, 2022