Dispositions Other Than By Published Opinion | April 13, 2022
Oklahoma Court of Civil Appeals
Division I
119,039 – In the Matter of: A.C. and A.C.: Rhiannon Conklin and Justin Conklin, Appellants, v. State of Oklahoma, Appellee. Appeal from the District Court of Sequoyah County, Oklahoma. Honorable Matt Orendorff, Trial Judge. Appellants, Rhiannon Conklin and Justin Conklin(jointly Parents), appeal from the trial court’s order denying their petitions to vacate an order terminating their parental rights to their two minor children. The order terminating parental rights was entered after a non-jury trial attended by both Parents and their legal counsel. The order filed August 15, 2018, terminated Parents’ parental rights pursuant to 10A O.S. Supp. 2015 §1-4-904(A) and §1-904(B)(9), on the basis that the clear and convincing evidence showed termination was in the children’s best interests and Parents’ rights should be terminated due to shocking and heinous abuse and neglect of the children and failure to protect the children from shocking and heinous abuse and neglect. Parents allege the trial court abused its discretion in denying their petitions to vacate the order. Based on our review of the pleadings, the trial transcript, the parties’ briefs, and applicable law, we hold the trial court did not abuse its discretion and AFFIRM the order denying the petitions to vacate the order terminating Mother’s and Father’s parental rights. Opinion by BELL, P.J.; GOREE, J., and MITCHELL, V.C.J. (sitting by designation), concur. – April 12, 2022
119,656 – comp. w/ Case No. 119,912 Bart A. Boeckman, LLC, Plaintiff/Appellant, v. Brandon Cox d/b/a BC Construction and Bollenbach Concrete, Inc., Defendants and Ed Strate, Defendant/Appellee. Appeal from the District Court of Kingfisher County, Oklahoma. Honorable Paul K. Woodward, Trial Judge. Plaintiff/Appellant, Bart A. Boeckman, LLC, appeals from the trial court’s summary judgment in favor of Defendant/Appellee, Ed Strate, in Plaintiff’s action for breach of contract. Boeckman Ford Inc. (BFI) hired Strate to oversee the construction of a new automobile dealership in Kingfisher. Bart A. Boeckman was the majority owner of BFI. In 2018, Mr. Boeckman formed Plaintiff Bart A. Boeckman, LLC. BFI then sold the subject property to Plaintiff and assigned “any claims associated with the property” to Plaintiff. In January 2019, Plaintiff filed the instant breach of contract action against Strate and others, alleging Strate breached his contract with BFI by failing to properly supervise the construction project. Strate moved for summary judgment, asserting Plaintiff could not maintain any action against him because Strate’s contract was with BFI. The trial court agreed with Strate, specifically finding there is no privity of contract between Plaintiff and Strate. Under Oklahoma law, rights under a contract are presumed to be assignable, unless the parties expressly provide otherwise. REVERSED AND REMANDED. Opinion by BELL, P.J.; GOREE, J., and MITCHELL, V.C.J., (sitting by designation) concur. – April 12, 2022
Division II
Division III
118,887 – In re the Marriage of: Jayen Harshad Patel, Petitioner/Appellant, v. Nicole Marie Patel, Respondent/Appellee. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Tammy Bruce, Trial Judge. This appeal stems from a non‑jury trial where the trial court heard evidence concerning the modification of the divorce decree where the main issues involved property division, including the valuation and division of certain business assets. Petitoner/Appellant, Jayed Harshad Patel (“Husband”), appeals the Order from the trial court that modified the parties’ Decree of Dissolution of Marriage. The Decree was presented to the trial court by Husband and approved during May, 2016. Respondent/Appellee, Nicole Marie Patel, now Castellese (“Wife”), filed a Motion to Vacate the Decree, pursuant to 12 O.S. § 1031.1, that was subsequently sustained, in part, by agreement. After a protracted trial, Husband asserts three propositions of error in this appeal: i.e., (a) that the trial court erred in its order to divide a portion of certain income received by Husband after the valuation date that was chosen by the parties for the division of marital assets, up to the post‑trial date of May, 2020 ‑ the date on which the trial court entered its Findings of Facts and Conclusions of Law; (b) that the trial court erred in finding Husband guilty of contempt for contributing funds to a charity in violation of a court order; and (c) that the trial court erred in failing to reduce the value of the marital estate in light of expected expenses and potential recoveries stemming from various lawsuits. We find that the award of a portion of income to Wife up to the time of trial did not constitute error. On the other hand, we find that the award of a portion of income to Wife after trial until May, 2020, did constitute error. We also find that the contempt arguments are moot and, therefore, express no opinion regarding the trial court’s orders concerning the contempt action. We further find that the trial court’s orders regarding any prospective proceeds from any judgments or liabilities stemming from various lawsuits did not constitute an abuse of discretion. An Opinion was issued by this Court on February 17, 2022.
Wife filed a Petition for Rehearing which is granted, in part, and denied, in part, in order to correct the amount of the overall monetary judgment to Wife to $8,159,654.42, as reflected on page 2, paragraph 7, of the Order Nunc Pro Tunc filed in the trial court on July 2, 2020. The Judgment amount has also been corrected at ‘s 17 & 28 of this Opinion. This Court’s February 17, 2022, Opinion is withdrawn and the Orders of the trial court are affirmed in part, reversed in part, and remanded. On remand, the trial court is directed to reduce the amount of the $8,159,654.42 overall judgment by the amount of post‑trial income awarded to Wife that this Court has determined constituted error as a matter of law. In addition, Husband should be granted credit for any payments he has previously made towards the judgment. Opinion by PRINCE, P.J.; MITCHELL, V.C.J., and SWINTON, J., CONCUR. – April 8, 2022
119,335 – 21st Mortgage Corporation, Plaintiff/Appellee, v. Walter Allen and Tammra Allen, Defendants/Appellants. Appeal from the District Court of McIntosh County, Oklahoma. Honorable Brendon Bridges, Trial Judge. This case concerns the purchase, default, and eventual replevin of a manufactured home purchased by Appellants Walter and Tammra Allen. When the Allens did not make payments on the home, Appellee, 21ST Mortgage Corporation (“Lender”) sought to repossess the manufactured home. Following a bench trial, the court found in favor of Lender, and entered an in rem judgment against the home. Both sides have appealed. The Allens appeal the trial court’s findings regarding the status of the loan and denial of their consumer protection claims. Lender counter‑appeals the post‑judgment interest rate, the award of an in rem judgement only under a mitigation of damages theory, and a finding by the trial court regarding application of a federal eviction moratorium in this case. For the Allens’ appeal, we conclude that the manufactured home retailer was not a loan originator and that the loan was not “high‑cost.” We find on Lender’s counter‑appeal that the federal eviction moratorium did not bar Lender from repossessing the home, that the trial court erred in finding in favor of the Allens’ claim of failure to mitigate damage, and that the contractual interest rate is the correct post‑judgment rate. Thus, we AFFIRM IN PART AND REVERSE IN PART, AND REMAND this action for proceedings consistent with this opinion. Opinion by PRINCE, P.J.; MITCHELL, V.C.J., and SWINTON, J., CONCUR.
120,067 – KELLY ANN VINCENT, individually; TERRY JOE VINCENT, individually; and TERRY JOE VINCENT on behalf of the ESTATE OF TYLER JOE VINCENT, Plaintiffs/Appellants, v. RAY FRANCISCO EMBALMING SERVICE, INC. an Oklahoma Corporation; and LEGACY FUNERAL HOLDINGS OF OKLAHOMA, LLC, a foreign limited liability company d/b/a/ WORLEY‑LUGINBUEL FUNERAL HOME, Defendants/Appellees. Appeal from the District Court of Tulsa County, Oklahoma. Honorable William D. LaFortune, Trial Judge. Plaintiffs/Appellants Kelly Ann Vincent, individually, and Terry Joe Vincent, individually and on behalf of the Estate of Tyler Joe Vincent (the Vincents), appeal from a summary judgment entered in favor of Defendants/Appellees Legacy Funeral Holdings of Oklahoma, LLC (Legacy) and Ray Francisco Embalming Service, Inc. (Ray Fransisco). The Vincents sued Legacy and Ray Fransisco for negligence in handling the body of their deceased son Tyler. After de novo review, we find the Vincents’ claim fails as a matter of law because neither Legacy nor Ray Fransisco breached the standard of care fixed by law for the storage of deceased bodies. AFFIRMED. . Opinion by MITCHELL, V.C.J.; PRINCE, P.J., and SWINTON, J., CONCUR. – April 8, 2022
120,150 – GREGORY LEWIS, LLC, an Arizona limited liability company, Petitioner/Appellant, v. CHRISTY BARRETT, SLYVIA BARRETT, LATINA ALLEN, Trustee of the Claude W. Barrett and Iva F. Barrett Trust of 1993, and JEFF WITH, Defendants/Appellees. Appeal from the District Court of Creek County, Oklahoma. Honorable Lawrence W. Parrish, Trial Judge. Petitioner/Appellant, Gregory Lewis, LLC (“Lewis”), seeks review of the trial court orders that denied his Motions for Summary Judgment and granted a Cross Motion for Summary Judgment in favor of Defendants/Appellees, Christy Barrett, Sylvia Barrett, and Latina Allan (collectively referred to as “Barrett”). Barrett signed two Sales Agreements for Vacant Land (“Agreements”), which would allow Lewis to purchase two tracts of land. Barrett subsequently cancelled the Agreements and sold the land to a third party. Lewis sued and filed two Motions for Summary Judgment. Barrett filed a Cross Motion for Summary Judgment and claimed that the Agreements were unenforceable due to lack of mutuality because it allowed Lewis the unilateral right to cancel the Agreements at any time for any reason. The trial court denied the Motions for Summary Judgment filed by Lewis and granted the Cross Motion for Summary Judgment filed by Barrett. We find that there are genuine issues of material fact that preclude summary judgment. Therefore, the matter is REVERSED AND REMANDED to the trial court for resolution of the factual issues. Opinion by PRINCE, P.J.; MITCHELL, V.C.J., and SWINTON, J., CONCUR. – April 8, 2022