Dispositions Other Than By Published Opinion | Aug. 31, 2022
Oklahoma Court of Civil Appeals
Division I
119,838 — Robert O. Kerns, derivatively on behalf of Kerns Construction, Inc. And Kerns Asphalt Company, both Oklahoma Corporations, Plaintiff/Appellee/Counter-Appellant, v. Jeffery O. Kerns, Defendant/Appellant/Counter-Appellee, and Kerns Construction, Inc., an Oklahoma Corporation and Kerns Asphalt Company, an Oklahoma Corporation, Defendants/Appellants. Appeal from the District Court of Payne County, Oklahoma. Honorable Phillip C. Corley, Trial Judge. This appeal addresses the denial of Jeffrey Kerns, Defendant/Appellant/Counter-Appellee, Motion to Modify or Correct the trial court’s order granting attorney fees or alternatively Jeffrey Kerns’ Motion for New Trial. Jeffrey Kerns sought attorney fees based on the underlying derivative lawsuit brought by his father, Robert Kerns, Plaintiff/Appellee/Counter-Appellant, a minority shareholder in a closely held family corporation. The decision of the district court in the August 10, 2021 order denying the Motion to Modify or Correct the district court’s earlier order is affirmed. Opinion by GOREE, J.; BELL, P.J., and DOWNING, J., concur. Aug. 25, 2022
119,969 — Tracie Lewis, Plaintiff/Appellant, v. City of Tulsa, ex rel. Tulsa Police Department, Defendant/Appellee, and Chuck Jordan Jonathan Brooks, Rod Hummel, Tina Gustafson, and Ladonna Scott, Defendants. Appeal from the District Court of Tulsa County, Oklahoma. Honorable William Musseman, Trial Judge. Plaintiff/Appellant, Tracie Lewis, did not appear at the final pretrial conference and the trial court sanctioned the failure by dismissing the action without prejudice. We hold the order was not an abuse of discretion and affirm. Opinion by GOREE, J.; BELL, P.J., and DOWNING, J., concur. Aug. 25, 2022
120,068 — Tyler Scott Paulsen, Plaintiff/Appellant, v. Wagoner County Sheriff’s Office; Wagoner County E911; Chris Elliott; and Judy Elliott, Defendants/Appellees. Appeal from the District Court of Rogers County, Oklahoma. Honorable Douglas Kirkley, Trial Judge. Plaintiff/Appellant, Tyler Scott Paulsen, appeals from the trial court’s order dismissing his open records action against Defendants/Appellees, the Wagoner County Sheriff’s Office, Wagoner County E911, Chris Elliott and Judy Elliott. Plaintiff filed this action in 2019 and filed an amended petition in 2020. Defendants moved to dismiss. Neither Plaintiff nor his counsel appeared at the May 17, 2021, status conference or at the August 23, 2021, hearing on the motion to dismiss. Although the trial court’s order recites that it “granted” Defendants’ motion to dismiss, we discern the court dismissed the case because of Plaintiff’s failure to appear. The order does not specify whether the dismissal was with or without prejudice. Plaintiff asserts the trial court erred in dismissing his case, but does not challenge the sufficiency of the notice of the hearings he failed to attend or attempt to explain his and/or his counsel’s failure to attend those hearings. We cannot say the trial court abused its discretion in dismissing Plaintiff’s amended petition. AFFIRMED. Opinion by BELL, P.J.; GOREE, J., and DOWNING, J., concur. Aug. 25, 2022
Division II
119,993 — 4 Star General Contracting, Inc., Plaintiff/Appellant, vs. Carl Cramton, Defendant/Appellee. Appeal from an order of the District Court of Grady County, Hon. Kory Kirkland, Trial Judge. Plaintiff 4 Star General Contracting, Inc., appeals the trial court’s order denying its motion to refer this dispute to arbitration. As in Signature Leasing v. Buyer’s Group, LLC, 2020 OK 50, ¶ 1, 466 P.3d 544, “The underlying question before us is whether the district court or the arbitrator determines challenges of fraudulent inducement to the entirety of a contract which contains an arbitration clause . . . .” 4 Star’s principal argument at the appellate stage is that the trial court erred in refusing to send Cramton’s fraudulent inducement issue to the arbitrator as required by the contract and Oklahoma law. The facts as urged by Cramton show he is attacking the validity and enforceability of the contract as a whole, not just the arbitration provision. Under Oklahoma law, this issue is clearly reserved for the arbitrator to decide. The decision to deny 4 Star’s motion to refer this dispute to arbitration was error and must be reversed and the case remanded to the trial court with directions to grant 4 Star’s motion and refer this matter to arbitration in accordance with Oklahoma law. REVERSED AND REMANDED WITH DIRECTIONS. Opinion from the Court of Civil Appeals, Division II, by WISEMAN, P.J.; BLACKWELL, J., and HIXON, J. (sitting by designation), concur. Aug. 29, 2022
Division III
119,750 — Kerry Kilhoffer, Plaintiff/Appellee, v. Misty Fortin, Defendant/Appellant. Appeal from the District Court of Beckham County, Oklahoma. Honorable Michelle Kirby Roper, Trial Judge. This is an automobile negligence action from which Defendant/Appellant, Mary Fortin, has appealed an order denying her Motion for New Trial, or, in the Alternative, Remittitur. Upon close examination of the trial record, the damage award, in the amount of $750,000.00, while large, was rendered following a jury trial and the verdict was reviewed, post‑trial, by the trial court in the context of Fortin’s Motion for New Trial, or, in the Alternative, Remittitur. The trial court’s judgment on the amount of the award is significant to this reviewing court and we are independently informed by our own review of the trial record. The testimony at trial demonstrated a rational basis upon which the jury reached its verdict, primarily based on the compelling testimony of the Plaintiff/Appellee, Kerry Kilhoffer, and his treating physician. The case had little, in anything, to do with Kilhoffer’s medical expenses, but was focused on Kilhoffer’s past and future pain and suffering expected future treatment, together with the mechanism of injury, including that Kilhoffer was rear‑ended by another pickup that admittedly was traveling at 65 mph at the time of the accident. After review of the record, we find that the trial court did not abuse its discretion in denying the Motion for New Trial, or, in the Alternative, Remittitur. We also find that the trial court did not prohibit Fortin from questioning Kilhoffer’s treating physician regarding causation and, even if that occurred, Fortin did not properly preserve her objection on that issue. Lastly, because Fortin did not provide expert testimony on the seat belt causation issue, we find no error with the trial court’s refusal to issue the requested jury instruction concerning whether Kilhoffer’s failure to wear a seat belt was the direct cause of some or all of his personal injuries, if any. Thus, we AFFIRM the trial court’s ruling on the Motion for New Trial, or, in the Alternative, Remittitur. Opinion by PRINCE, P.J.; MITCHELL, V.C.J., and SWINTON, J., CONCUR. Aug. 26, 2022
120,193 — In the Matter of: A.R. and I.R., Deprived Children. State of Oklahoma, Petitioner/Appellee v. Brandi Buechler, Natural Mother, Appellant. Appeal from the District Court of Tulsa Respondent/Appellant Brandi Buechler appeals from the trial court’s order terminating her parental rights to A.R. and I.R. This deprived case began when a third child tested positive for methamphetamine at birth. Buechler relinquished her parental rights to that child during the course of this proceeding. Following a bench trial, the trial court terminated Buechler’s parental rights for failure to correct the conditions leading to the deprived adjudication and for length of time in foster care. We have reviewed the record in its entirety and find clear and convincing evidence shows Buechler failed to correct the conditions and that termination is in Children’s best interests. We AFFIRM. Opinion by SWINTON, J.; MITCHELL, V.C.J., and PRINCE, P.J., CONCUR. Aug. 26, 2022
120,368 — Credit Corp. Solutions, Inc., Plaintiff/Appellee, v. Robert Wafer, Defendant/Appellant. Appeal from the District Court of Canadian County, Oklahoma. Honorable Paul Hesse, Trial Judge. The trial court granted summary judgment in favor of Plaintiff Credit Corp Solutions Inc. on its claim for indebtedness against Robert Wafer in the amount of $14,700.75. Credit Corp asserted that WebBank, a web‑based platform, provided a loan to Robert Wafer, that Credit Corp Solutions Inc. purchased the loan from WebBank, and that Robert Wafer defaulted on the loan. After de novo review, we REVERSE the trial court’s grant of summary judgment finding that Credit Corp failed to provide, in support of its motion for summary judgment, admissible evidence to prove that Robert Wafer had a valid contract with WebBank and that Credit Corp was the proper party in interest to enforce the loan. Opinion by MITCHELL, V.C.J.; PRINCE, P.J., and SWINTON, J., CONCUR. Aug. 26, 2022
Division IV
119,437 — Oklahoma Turnpike Authority, Plaintiff/Appellee, vs. Shady Nook Auto Parts, Inc., Defendant/Appellant, and Oklahoma County Board of Commissioners and the Treasurer of Oklahoma County, Additional Defendants. Appeal from the District Court of Oklahoma County, Hon. Susan C. Stallings, Trial Judge. Shady Nook Auto Parts, Inc. (Shady) appeals the trial court’s Amended Journal Entry of Judgment filed February 24, 2021, granting Oklahoma Turnpike Authority’s (Turnpike) motion to reconsider; denying Shady’s motion to reconsider; and awarding Shady attorneys’ fees and costs. The primary issue in this condemnation action is whether the trial court erred in interpreting the fee agreement entered between Shady and its attorneys, which resulted in a fee award of only $3,000.00, though the attorneys represented Shady throughout the litigation and jury trial. Shady also appeals the trial court’s orders on the award of expert witness fees of Steve Lett, Chris Borders, Wade Drew, and Bob Grace. Based on our review of the record and applicable law, we reverse the attorneys’ fees award of $3,000.00; reverse the trial court’s orders on the expert witness fees of Borders, Lett, and Drew; and affirm the trial court’s order denying Shady an award of fees for Grace. We remand this case to the trial court for further proceedings consistent with our Opinion. AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division IV, by HIXON, J.; FISCHER, C.J., and BARNES, P.J., concur. August 24, 2022
119,327 — Paul Snowden and Brooke Snowden, Plaintiffs/Appellants, vs. Stellar Construction, inc., an Oklahoma corporation, Mark McFarland, and Mark Carmouche, Defendants/Appellees. Appeal from the District Court of Cleveland County, Hon. Lori Walkley, Trial Judge. Paul and Brooke Snowden (Buyers) appeal a journal entry of judgment awarding Stellar Construction, Inc. (Stellar) $251,632.75 pursuant to Quantum Meruit or unjust enrichment. Stellar, Mark Carmouche (Carmouche), and Mark McFarland (McFarland) (collectively, “Builders”) counter-appeal the judgment awarding Buyers damages for constructive fraud, an attorney’s fee as sanctions, denying their breach of contract claim, and dismissing their lien foreclosure claim, inter alia. Based on our review of the record and applicable law, we reverse that portion of the judgment awarding 1) Stellar $251,632.75 pursuant to Quantum Meruit or unjust enrichment, and 2) Buyers $32,140.09 for constructive fraud. The judgment is affirmed in all other respects. Builders further appeal an order awarding Buyers an attorney’s fee and costs. Based on our review of the record and applicable law, we affirm the order awarding Buyers fees and costs. AFFIRMED IN PART, REVERSED IN PART. Opinion from Court of Civil Appeals, Division IV, by HIXON, J.; FISCHER, C.J., and BARNES, P.J., concur. Aug. 26, 2022
120,302 — In the Matter of J.V., Alleged Deprived Child, Jimmy Vanbuskirk, Appellant, vs. State of Oklahoma, Appellee. Appeal from the District Court of Oklahoma County, Hon. Kaitlyn G. Allen, Trial Judge. Jimmy Vanbuskirk (Father) appeals from the trial court’s Order entering the jury’s verdict terminating his rights to the minor child, J.V. Father argues the jury was improperly instructed regarding the statutory ground for termination in this case, 10A O.S.Supp.2021,
§ 1-4-904(B)(12) (incarceration), and that the trial court’s Order was insufficient. He also argues that the differing burdens for termination under the Indian Child Welfare Act (ICWA) and State law violate his constitutional right to equal protection and that J.V.’s attorney rendered the child ineffective assistance of counsel. Based on our review of the facts 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. Aug. 29, 2022