Dispositions Other Than By Published Opinion | Feb. 2, 2022

Oklahoma Court of Civil Appeals

Division I

119,198        –    Carol Insley and Craig Thomassen, Plaintiff/Appellees, v. Kerri Walker and James Walker, Defendants/Appellants.  Appeal from the District Court of Osage County, Oklahoma.  Honorable Charles G. Tate, Trial Judge. Defendants/Appellants, Kerri and James Walker, seek review of the decisions of the Osage County District Court in favor of Plaintiffs/Appellees, Carol Insley and Craig Thomassen, finding the Walkers’ asserted sales contract for the property at issue in Burbank, Oklahoma was not valid for the sale of the property. The trial court issued its primary decision on October 15, 2020, Rulings on Proposed Findings of Fact and Conclusions of Law. We affirm the district court’s orders in this matter. Opinion by GOREE, J.; BELL, P.J., PRINCE, J., (sitting by designation) concr. Jan. 25, 2022.

120,009        –    Jake Chilcoat, Plaintiff/Appellant, v. Zurich American Insurance Company, Defendant/Appellee, and Ricky Lee Evans, Defendant.  Appeal from the District Court of Cleveland County, Oklahoma.  Honorable Lori Walkley, District Court Judge.  Jake Chilcoat, Plaintiff/Appellant, appeals the district court’s grant of a motion to dismiss his claim for uninsured motorist benefits against Zurich American Insurance Company, Defendant/Appellee.  Zurich attached policy documents to its motion to dismiss, but the motion was not converted to a motion for summary judgment because the policy was integral to Plaintiff’s claim.  Plaintiff alleged a bodily injury caused by an underinsured motorist and that he is entitled to uninsured motorist benefits under the policy issued by Zurich to his employer.  This is sufficient as a short, plain statement that he is entitled to relief under 12 O.S. §2008(A).  The trial court’s order granting Zurich’s motion to dismiss is reversed.  Opinion by GOREE, J.; BELL, P.J., and PRINCE, J., (sitting by designation) add votes. Jan. 25, 2022

119,402        –    In the Matter of K.V., Deprived Child, Jennifer Crosier, Natural Mother, Appellant, v. State of Oklahoma, Appellee.  Appeal from the District Court of Tulsa County, Oklahoma.  Honorable Martha Rupp Carter, Trial Judge. Jennifer Crosier, Appellant, appeals the district court’s order terminating her parental rights to her daughter, K.V.  The trial court did not abuse its discretion in permitting witnesses to testify about the conditions existing prior to entry of the Individualized Service Plan.  Mother did not show that a DHS worker’s bias was a direct cause of her failure to correct the conditions that led to the deprived child adjudication.  Affirmed.  Opinion by GOREE, J.; BELL, P.J., and PRINCE, J., (sitting by designation) concur. – Feb. 1, 2022

119,866        –    Atlas Pipeline Mid-Continent Westok, LLC, Plaintiff, v. Billy Jack Sharber Operating, LLC, Defendant/Appellant, and Ashlee S. Kock, Personal Representative of the Estate of Mary Louise Kersey, Deceased, Wallace Austin, James Kelley Gann Jr., Personal Representative of the Estate of Cleo Jenkins, Deceased, Lynora Kell, Beatrice Harriman, Charles Tressler, Barbara Tressler, Susan Radley Victoria Proctor, Edward Root, III, Racine Root, Sharon Shope, Defendants/Appellees, and First Financial Energy LTE 1981-2, Bamco Oil & Gas, Inc, Allied Petroleum, Inc., Amadeus, Inc., Bradley Energy Corporation, Inc., The Annex Group, PGGB Oil & Gas, Mary Kersey Hood, Knotts Motor Co., G. Darrell Olson, Concor, Inc., Centurion Oil, Inc., Adella Patocka, Betty L. Dawson, Connie L. Britle, Clara Wurth, Don L. Pospisil, Glenda M. Babb, Laird J. Barnard, Mary J. Bray Estate, Myrtie Jo Johnson Revocable Trust, Lynda McKnight Pickens, Trustee, Martin L. Lavicky, M.S. Simpson, Richard D. Hendrickson, Richard L. Dawson, Sharon L. Nall, Thomas J. Lavicky, William J. Pospisil, Defendants.  Appeal from the District Court of Garfield County, Oklahoma.  Honorable Tom L. Newby, Trial Judge.  Appellant, Billy Jack Sharber Operating, LLC, appeals a summary judgment granted to Appellees, The Kersey Group, who are owners of working interests in two oil and gas wells in Garfield County.  The Kersey Group requested judgment for the unpaid proceeds of production plus 12% interest based on 52 O.S. §570.10(D)(1) of the Production Revenue Standards Act.  The court granted interest for unpaid proceeds beyond the 5-year statute of limitations based on application of the discovery rule.  We reverse in part because fraudulent concealment, not the discovery rule, applies to breach of contract and the Kersey Group was not entitled to judgment as a matter of law on the question of tolling.  Opinion by GOREE, J.; BELL, J., and SWINTON, J., (sitting by designation) concur. – Feb. 1, 2022

Division II

Division III

118,177                 –        State of Oklahoma, Plaintiff/Appellant, v. Alicia Ann Koehn, Defendant/Appellee, and District Court of Kay County, State of Oklahoma, The Honorable David Bandy, Associate District Judge, Respondent, and Oklahoma State Bureau of Investigation, Respondent. Appeal from the District Court of Kay County, Oklahoma.  Honorable David R. Bandy, Trial Judge.Plaintiff/Appellant State of Oklahoma appeals from an order dismissing a 2000 criminal case filed against Defendant/Appellee Alicia Ann Koehn and ordering an expungement of the records related to the same.  State argues that the trial court misapplied 22 O.S. § 18 (A) (7) and 22 O.S. § 991c, and that because Defendant did not complete the conditions of the deferred sentence at the end of the deferral period, she was not entitled to dismissal and expungement.  We affirm, finding that the trial court correctly applied 22 O.S. § 18 (A) (7). Opinion by SWINTON, J.; MITCHELL, V.C.J., concurs and Prince, P.J., specially concurs. – Jan. 28, 2022.

119,497                 –        Burl Peveto, Plaintiff/Appellee, v. Lorie Ann Peveto, Defendant/Appellant. Appeal from the District Court of McCurtain County, Oklahoma.  Honorable Jana Kay Wallace, Trial Judge. Plaintiff/Appellee Burl Peveto (Husband) sued his former wife Defendant/Appellant Lori Peveto (Wife) seeking partition of the house they once owned in joint tenancy with rights of survivorship.  While married, the ownership of the house alternated between joint tenancy and Wife as the sole owner.   In the divorce, the decree of dissolution failed to specifically address the house.  The issue is whether Wife owns the house in her individual capacity or whether the house is owned by Wife and Husband as joint tenants.  In the partition proceeding below, the court in its final order found that the original deed from Husband to Husband and Wife as joint tenants was the only operable deed as the others were either prepared to defraud creditors and therefore void or they were never delivered.  The trial court remanded the matter to the divorce court to dispose of the marital asset.  We find that the court’s order is contrary to the clear weight of the evidence and is not in harmony with the law.  The judgment of the court below is REVERSED. Opinion by MITCHELL, V.C.J.; PRINCE, P.J., and SWINTON, J., concur. – Jan. 28, 2022

119,724                 –        In the Matter of the Estate of: Dorothy Maxine Miller, Deceased, Keith A. Miller, Appellant, v. Lisa M. Miller, Appellee.  Appeal from the District Court of Creek County, Oklahoma.  Honorable Douglas W. Golden, Trial Judge. Dorothy Maxine Miller’s (Decedent) was predeceased by two of her three sons.  One son died without issue; the other son left a daughter, Defendant/Appellee Lisa M. Miller (Granddaughter).  Following Decedent’s death, her Conjoint Last Will & Testament with her late husband (Will) was submitted to probate by her surviving son, Plaintiff/Appellant Keith A. Miller (Son).   The petition to probate the Will identified Son as Decedent’s only devisee under the Will.  Granddaughter objected.  The specific language in the Will at issue is found in the residuary distribution: “We give, devise, and bequeath all the rest and residue of our estate to our beloved sons, Archie Dale Miller, Keith A. Miller, and Jeff Eugene Miller, share and share alike.”  Son contends that the gift was made to the brothers as a class, therefore, Granddaughter cannot take under the Will.  Granddaughter argues that the Will failed to include the requisite language to show intent to disinherit issue of a predeceased child.  In its order, the trial court found that Decedent’s Will failed to contain the strong and convincing language required by Oklahoma law to evince an intent to disinherit Granddaughter and that the provisions of 84 O.S. 2011 §142 control over 84 O.S. 2011 §177.  We agree. Opinion by MITCHELL, V.C.J.; PRINCE, P.J., and SWINTON, J., concur. – Jan. 28, 2022

119,972                 –        Larry Mabry, an individual and Rodney Mabry, an individual, Plaintiffs/Appellants, v. Thomas S. Ivester, an individual; and Ivester, Ivester & Ivester, PLLC, an Oklahoma Professional Limited Liability Company, Defendants/Appellees.  Appeal from the District Court of Beckham County, Oklahoma.  Honorable Paul K. Woodward, Trial Judge. Plaintiffs/Appellants Larry Mabry and Rodney Mabry (Brothers), sued their former attorney, Thomas S. Ivester, and his firm, Ivester, Ivester, & Ivester, PLLC (Ivester), for legal malpractice following a settlement conference in which Brothers entered into an agreement with their sister to resolve a dispute over their late mother’s estate.  Ivester filed a motion to dismiss for failure to state a claim upon which relief may be granted.  The trial court granted the motion, and Brothers appeal.  We find that Brothers satisfied the notice pleading requirements for a legal malpractice action.  The order of the trial court is REVERSED.  Opinion by MITCHELL, V.C.J.; PRINCE, P.J., concurs, and SWINTON, J., dissents. – Jan. 28, 2022

Division IV