Dispositions Other Than By Published Opinion | April 10, 2024
Oklahoma Court of Civil Appeals
Division I
121,260 – Morad Sepahvand, Defendant/Appellant, v. Ting and Ting, LLC, Plaintiff/Appelllee. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Rich Hathcoat, Judge. Defendant/Appellant, Morad Sepahvand, appeals from the trial court’s order awarding Plaintiff/Appellee, Ting and Ting, LLC, $6,525.53 for delinquent rent, fees, interest, and other amounts owed under the lease contract for the months of December 2019 through July 2020. Defendant contends the trial court failed to adequately consider his impossibility defense. Because the record contains evidence that the Defendant continued to operate their restaurant despite their claim of impossibility of performance, the order of the trial court is AFFIRMED. Opinion by BELL, V.C.J.; SWINTON, P.J., and PRINCE, J., concur.
121,206 – Kimberly Ervin, Protestant/Appellant, v. Oklahoma Tax Commission, Respondent/Appellee. Appeal from the Oklahoma Tax Commission. Protestant/Appellant, Kimberly Ervin, appeals from an order of the Oklahoma Tax Commission finding Ervin, as president of an incorporated private school, personally liable for penalty and interest accrued on unpaid withholding taxes for all quarters of tax years 2009 through 2012. Ervin admits she is personally liable for the unpaid withholding taxes, but maintains she cannot be held responsible for paying the penalties and interest on the same because 68 O.S. §253 did not specifically mention penalties and interest. However, other provisions of the Oklahoma Tax Code make clear that the Legislature intended penalties and interest to be encompassed within the meaning of the “tax” identified in §253. As the person responsible for withholding and remitting her corporation’s withholding taxes, Ervin is also liable for the payment of penalties and interest for her failure to timely remit such taxes. Ervin had a fiduciary duty to hold the corporation’s withholding taxes in trust for the state and the Oklahoma Tax Code does not contemplate the interest-free use of government funds. AFFIRMED. Opinion by BELL, V.C.J.; SWINTON, P.J., and PRINCE, J., concur.
121,542 – C.L.L. Fravel, Petitioner/Appellee, v. D.D. Fravel, Respondent/Appellant. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Tammy Bruce, Trial Judge. Respondent/Appellant, D.D. Fravel (“Husband”) appeals a Decision by the trial court that granted a Motion for New Trial filed by The Respondent/Appellee, C.L.L. Fravel (“Wife”). The Parties’ divorce action was commenced during December, 2016, but the matter did not proceed to trial until April, 2022. The Decree of Dissolution of Marriage was filed on April 21, 2023, more than seven years after Wife’s Petition was filed. Wife filed a Motion for New Trial and included fourteen separate propositions as to why a new trial should be granted. The trial court granted the Motion and Husband appeals. We have reviewed the record and applicable law and find that the trial court did not abuse its discretion when it granted Wife’s Motion for New Trial. The Decision of the trial court is AFFIRMED. Opinion by PRINCE, J.; BELL, V.C.J., and SWINTON, P.J. concur.
121,822 – Janice Steidley, Plaintiff/Appellant, v. William “Bill” Higgins. Erin O’Quin, Estate of Carl Williams, Sally Williams, and Edith Singer, Defendants/Appellees. Appeal From the District Court of Rogers County, Oklahoma. Honorable Linda Thomas, Trial Judge. Plaintiff/Appellant, Janice Steidley, appeals the trial court’s Order of July 5, 2022, that determined that Steidley’s abuse of process claim failed, as a matter of law. Steidley also appeals the trial court’s denial of her Motion to Reconsider and/or Motion for New Trial. After review of the record and relevant authority, we Affirm the trial court and hold that the collection of signatures for a grand jury investigation is not, as a matter of law, part of a court’s processes for purposes of an abuse of process claim. Opinion by PRINCE, J.; BELL, V.C.J., and SWINTON, P.J., concur.
Division II
Division III
121,479 – In re the marriage of: Justin Michael Conger, Petitioner/Appellant, v. April Lynn Conger, Defendant/Appellant. Appeal from the District Court of Rogers County, Oklahoma. Honorable Tamera Childers, Trial Judge. This is an appeal from an order of indirect contempt as well as an order adjudicating child support arrearages. The trial court found Justin Michael Conger guilty of contempt for failing to pay child support as ordered in an agreed Divorce Decree. It was determined, however, that the parties had an agreement that, in lieu of paying child support, he would allow wife and their minor children to live in the home he had been awarded in the divorce. He would also pay the mortgage and other living expenses of wife and children. Nonetheless, the first judge in this case found him guilty of indirect contempt, although with no finding of willfulness. Following a hearing to determine the arrearage, a second judge found any arrearages had been purged by the house and other payments Mr. Conger had made for over five years. The order of indirect contempt is REVERSED because it lacks a finding of willfulness as required by 21 O.S. 2021 §565. The order determining that any arrearages had been purged is AFFIRMED. Opinion by MITCHELL, P.J.; GOREE, J., and DOWNING, J., concur.
Division IV
120,418 – Brenda Sasnett Cummings, Petitioner/Appellee, vs. Luther Gregory Cummings, Respondent/Appellant. Appeal from the District Court of Oklahoma County, Hon. Martha Oaks, Trial Judge. Luther Gregory Cummings appeals the trial court’s Journal Entry requiring him to pay Brenda Sasnett Cummings a total of $216,290.45 out of his Oklahoma Firefighters Pension and Retirement System Deferred Option Plan account, which was formed approximately ten years after their divorce and was explicitly not awarded to her in the decree. Based on our review of the record and applicable law, we reverse the journal entry. REVERSED. Opinion from Court of Civil Appeals, Division IV, by HIXON, J.; HUBER, P.J., concurs, and BLACKWELL, J., dissents. April 4, 2024
120,511 – Dale Nash, a single person, Plaintiff/Appellee, vs. DCP Operating Company, LP, an Oklahoma foreign limited partnership, formerly known as DCP Midstream, LP, Defendant/Appellant. Appeal from an Order of the District Court of Stephens County, Hon. Ken Graham, District Judge. DCP Operating Company appeals a decision of the district court refusing to order arbitration of Dale Nash’s claims that DCP damaged his property while apparently operating or maintaining a pipeline. On review, we find that any arbitration agreement was confined to operations within the pipeline easement, that DCP failed to allege that any of the damages were inside the easement, and the record indicates the damages were outside of the easement. Thus, we affirm. AFFIRMED. Opinion from the Court of Civil Appeals, Division IV by BLACKWELL, J.; HUBER, P.J., and HIXON, J., concur. April 8, 2024