Dispositions Other Than By Published Opinion | July 31, 2024
Oklahoma Court of Civil Appeals
Division I
119,442 – Rachel Martin, Plaintiff/Appellant, vs. David Dunkel, Justin Swanner, Mason Haley, McCollom Family Partnership, Collegetown RealOState, LLC, Defendants/Appellees, and Jake Stump, Defendant. Appeal from the District Court of Payne County, Oklahoma. Honorable Phillips C. Corley, Trial Judge. Plaintiff/Appellant, Rachel Martin, appeals from the grant of summary judgment in favor of Defendants/Appellees, David Dunkel, Justin Swanner, Mason Haley, McCollom Family Partnership and Collegetown Realostate, LLC, in Martin’s action for negligence and premises liability for injuries Martin sustained in the yard of an off campus house party in Stillwater. The trial court held that Plaintiff’s actions in exiting the house to go into a dark, unlit and secluded portion of the yard to urinate took her outside the scope of any invitation extended to her, and that the pane of glass against which Plaintiff fell was an open and obvious hazard. During the Spring semester of 2016, Plaintiff was a nineteen year old student at Oklahoma State University. Defendants/Appellees, Duncan, Swanner and Haley, along with Defendant Jake Stump, were also OSU students who rented and were living in an off campus house owned by Defendant/Appellee McCollum Family Partnership. On the evening of January 23, 2016, Duncan, Swanner and Stump hosted a social gathering at their rental house. Haley was out of town and had no knowledge of the event. Plaintiff, who claims she had an invitation, and a friend attended the gathering. Despite being under the legal drinking age of twenty one (21), Plaintiff admitted she brought her own vodka to the event and drank to the point of intoxication. After some time, Plaintiff felt the sudden urge to urinate. Although there are three (3) bathrooms located inside the house, Plaintiff chose to go outside to urinate. She admitted it was dark and that she could not see anything because of the darkness. Plaintiff walked down a dark and secluded pathway to the side of the house. It is undisputed Plaintiff did not seek or obtain permission to go into that section of the yard. Plaintiff admitted she chose that area of the yard for the very reason that it was dark and secluded. When she attempted to pull down her leggings and squat against the house to urinate, Plaintiff lost her balance and fell against a glass windowpane that was leaning against the house. The glass broke, cutting Plaintiff’s left buttock and shoulder. We hold the trial court properly granted summary judgment in favor of Defendants. The darkness of the area Plaintiff chose to enter was an obvious condition. The windowpane was also open and obvious. Neither were in the nature of hidden dangers, traps, snares and the like. Defendants owed no duty to warn Plaintiff about either condition. We also hold Plaintiff, by entering into the area of the yard she chose to relieve herself, exceeded the scope of any invitation extended to her. AFFIRMED. Opinion by BELL, V.C.J.; PRINCE, J., and GOREE, J., (sitting by designation) CONCUR. July 24, 2024
121,133 – Witt Properties, Incorporated, a domestic corporation, Plaintiff/Appellant, v. Alisha Hospitality, LLC, a domestic limited liability company; Defendant/Appellee/Counter‑Appellant, and Anish Hospitality, LLC, a domestic limited liability company; Regent Bank, a domestic bank; Zurich American Insurance Compnay, a foreign corporation, and American Zurich Insurance Company, a foreign corporation, Defendants/Appellees. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Douglas E. Drummond, Judge. This is an action for breach of a ground lease agreement, constructive and/or resulting trust, conversion and other claims. Plaintiff/Appellant/Counter‑Appellee, Witt Properties Incorporated (Landowner), appeals from the trial court’s summary judgment in favor of Defendants on Landowner’s action to recover and/or impose a constructive and/or resulting trust on insurance proceeds paid by Defendants/Appellees, Zurich American Insurance Company and American Zurich Insurance Company (Zurich), to Defendant/Appellee Regent Bank (Bank), Defendant/Appellee/Counter‑Appellant Alisha Hospitality, LLC (Tenant), and Defendant/Appellee Anish Hospitality, LLC (Anish). Landowner also appeals from the trial court’s judgment entered after a bench trial. The trial court entered findings of fact and conclusions of law and entered judgment in favor of Tenant on Landowner’s claim for breach of the lease requirement to repair the storm damaged property (hotel) located on the leased premises. Tenant counter appeals from the trial court’s judgment in favor of Landowner on Landowner’s claim for unpaid rentals under the lease agreement. After de novo review of the record, we find undisputed facts support the trial court’s summary judgment in favor of Defendants on the claims relating to the Zurich insurance proceeds and affirm. We further find the judgment awarding Landowner rental arrearages and denying Landowner’s claim against Tenant to repair leased property contains findings of fact that are supported by sufficient competent evidence, and that such findings of fact and conclusions of law, which are attached hereto as Exhibit A and made a part hereof, adequately explain the trial court’s judgment. Accordingly, we affirm that judgment under Supreme Court Rule 1.202(b) and (d), 12 O.S. 2021, Ch. 15, App. Opinion by BELL, V.C. J.; SWINTON, P.J., concurs and PRINCE, J., concurring in result. July 25, 2024
121,637 – Rikki J. Volner, Petitioner/Appellee, v. Kaitlyn Johnson, Respondent/Appellant. Appeal from the District Court of Creek County, Oklahoma. Honorable Pamela B. Hammers, Judge. Respondent/Appellant, Kaitlyn Johnson, appealed the trial court’s September 7, 2023 denial of Johnson’s Motion to Vacate a Final Protective Order, Motion to Dismiss Petitioner/Appellee, Rikki Volner’s, Petition for Protective Order, and Motion for Attorney’s fees. Johnson filed these three motions following the trial court’s grant of Volner’s Final Protective Order, which Johnson contended was granted contrary to the procedural requirements of 22 O.S. § 60.2(A)(1). Based upon our review of the record and applicable authority, we find no error in the trial court’s denial of Johnson’s Motion to Vacate a Final Protective Order, Motion to Dismiss Plaintiff’s Petition for Protective Order, and Motion for Attorney’s fees. Accordingly, the trial court’s September 7, 2023 Order is AFFIRMED. Opinion by PRINCE, J. BELL, V.C.J., and SWINTON, P.J., concur. July 25, 2024
121,638 – Jacob Powell, Petitioner/Appellee, v. Kaitlyn Johnson, Respondent/Appellant. Appeal from the District Court of Creek County, Oklahoma. Honorable Pamela B. Hammers, Judge. Respondent/Appellant, Kaitlyn Johnson, appealed the trial court’s September 7, 2023 denial of Johnson’s Motion to Vacate a Final Protective Order, Motion to Dismiss Petitioner/Appellee, Jacob Powell’s, Petition for Protective Order, and Motion for Attorney’s fees. Johnson filed these three motions following the trial court’s grant of Powell’s Final Protective Order, which Johnson contended was granted contrary to the procedural requirements of 22 O.S. § 60.2(A)(1). Based upon our review of the record and applicable authority, we find the trial court erred in its denial of Johnson’s Motion to Vacate a Final Protective Order, Motion to Dismiss Plaintiff’s Petition for Protective Order, and Motion for Attorney’s fees due to Powell’s noncompliance with § 60.2(A)(1) in filing his Petition. Accordingly, the trial court’s September 7, 2023 Order is REVERSED. Opinion by PRINCE, J. BELL, V.C.J., and SWINTON, P.J., concur. July 25, 2024
121,639 – Colton Volner, Petitioner/Appellee, v. Kaitlyn Johnson, Respondent/Appellant. Appeal from the District Court of Creek County, Oklahoma. Honorable Pamela B. Hammers, Judge. Respondent/Appellant, Kaitlyn Johnson, appealed the trial court’s September 7, 2023 denial of Johnson’s Motion to Vacate a Final Protective Order, Motion to Dismiss Petitioner/Appellee, Colton Volner’s, Petition for Protective Order, and Motion for Attorney’s fees. Johnson filed these three motions following the trial court’s grant of Volner’s Final Protective Order, which Johnson contended was granted contrary to the procedural requirements of 22 O.S. § 60.2(A)(1). Based upon our review of the record and applicable authority, we find no error in the trial court’s denial of Johnson’s Motion to Vacate a Final Protective Order, Motion to Dismiss Plaintiff’s Petition for Protective Order, and Motion for Attorney’s fees. Accordingly, the trial court’s September 7, 2023 Order is AFFIRMED. Opinion by PRINCE, J. BELL, V.C.J., and SWINTON, P.J., concur. July 25, 2024
121,791 – Avree Scott, Petitioner/Appellee, v. Kaitlyn Johnson, Respondent/Appellant. Appeal from the District Court of Creek County, Oklahoma. Honorable Pamela B. Hammers, Judge. Respondent/Appellant, Kaitlyn Johnson, appealed the trial court’s Final Protective Order which granted Petitioner/Appellee, Avree Scott, an Order of Protection against Johnson for two years. The trial court entered the Final Protective Order via a default judgment due to Johnson’s repeated absences at the scheduled hearings. Johnson moved to vacate the Final Protective Order which the trial court denied, and Johnson has now argued on appeal the trial court’s denial of her Motion to Vacate constituted an abuse of discretion. AFFIRMED. Opinion by PRINCE, J. BELL, V.C.J., and SWINTON, P.J., concur. July 25, 2024
Division II
121,106 – Independent School District No. 71, Kay County, Oklahoma, (Ponca City Public Schools); Independent School District No. 20, Muskogee County, Oklahoma (Muskogee Public Schools); Independent School District No. 14, Ottawa County, Oklahoma, (Quapaw Public Schools); and Independent School District No. 2, Kiowa County, Oklahoma, (Lone Wolf Public Schools), Plaintiffs/Appellants, vs. Oklahoma State Department of Education and Oklahoma State Board of Education, Defendants/Appellees. Appeal from Order of the District Court of Oklahoma County, Hon. Sheila D. Stinson, Trial Judge. Independent School District Nos. 71, 20, 14 and 2 appeal the judgment entered in favor of the Oklahoma State Department of Education and the Oklahoma State Board of Education. We hold that the district court’s order is appropriate for summary disposition pursuant to Oklahoma Supreme Court Rule 1.202(d), 12 O.S.2021, ch. 15, app. 1. In previous litigation, the School Districts joined with other school districts and successfully challenged the manner in which the Oklahoma Tax Commission had allocated Motor Vehicle Collections to the School Districts for certain years. See Independent Sch. Dist. No. 2 Tulsa Cnty. v. Oklahoma Tax Comm’r, 2018 OK CIV APP 49, 419 P.3d 1281. Pursuant to this Court’s Opinion and the district court’s order after remand, the Tax Commission made the proper allocations. AFFIRMED UNDER RULE 1.202(d). Opinion from Court of Civil Appeals, Division II by FISCHER, J.; BARNES, C.J., and WISEMAN, P.J., concur. July 24, 2024
121,178 – Shawn Anderson, M.D., an individual, and Rapid Remedy Urgent Care PLLC, and Oklahoma professional limited liability company, Petitioners/Appellants, vs. Oklahoma Health Care Authority Board and Kevin Corbett, Administrator of the Oklahoma Health Care Authority, Respondents/Appellees. Appeal from Order of the District Court of Oklahoma County, Hon. Anthony L. Bonner, Trial Judge. Shawn Anderson, M.D., and Rapid Remedy Urgent Care Center, PLLC, appeal the Journal Entry of Judgment in favor of the Oklahoma Health Care Authority, the Oklahoma Health Care Authority Board and its Administrator, Kevin Corbett (collectively, the Authority). We hold that the district court’s Judgment is appropriate for summary disposition pursuant to Oklahoma Supreme Court Rule 1.202(d), 12 O.S.2021, ch. 15, app. 1, and affirm. AFFIRMED UNDER RULE 1.202(d). Opinion from Court of Civil Appeals, Division II by FISCHER, J.; BARNES, C.J., and WISEMAN, P.J., concur. July 24, 2024
Regional Health Center Auxiliary, Inc.; Sean McCready, D.O.; Chet D. Wilson, D.O.; Mindy McBrien APRN-CNP; Integris Ambulatory Core Corp.; James Lunsford, D.O.; Aleta Fox, P.A.; Shantra Neuhring, D.O.; Daniel Traum, D.O.; Freeman Health System; Gulshan Uppal, M.D., and Elaine Mader, M.D., Defendants/Appellees. Appeal from the District Court of Ottawa County, Oklahoma. Honorable Jennifer McAffrey, Trial Judge. Whitney Barfell appeals from the trial court’s Judgment granting the Motion to Dismiss filed by Freeman Health System (FHS) and Gulshan Uppal, M.D. (Uppal). The trial court determined it lacked both general and specific jurisdiction over FHS and Uppal. Based on our review of the record and applicable law, we find the trial court’s Judgment was not error. Accordingly, we AFFIRM. Opinion by DOWNING, J.; MITCHELL, P.J., and GOREE, J., concur.
121,177 – Richard Schafer, D.O., an individual, Plaintiff/Appellant, vs. Oklahoma Health Care Authority, Oklahoma Health Care Authority Board and Kevin Corbett, Administrator, Defendant/Appellees. Appeal from Order of the District Court of Oklahoma County, Hon. Natalie Mai, Trial Judge. Richard Schafer, D.O. filed this declaratory action against the Oklahoma Health Care Authority, the Oklahoma Health Care Authority Board and its Administrator. Schafer seeks to prevent the termination of his provider contract with Oklahoma’s Medicaid program. The appeal has been assigned to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36, 12 O.S.2021, ch. 15, app. 1, and the matter stands submitted without additional briefing. The district court found that Schafer had no legally protected interest in his provider contract and, therefore, no standing to challenge the rules that resulted in the termination of his contract. The district court dismissed Schafer’s action on that and other grounds. We hold that Schafer does not have standing to file this action and affirm. AFFIRMED. Opinion from Court of Civil Appeals, Division II by FISCHER, J.; BARNES, C.J., and WISEMAN, P.J., concur. July 26, 2024
Division III
120,935 – Shaun D. Sanders, Plaintiff/Appellee, v. Misty Magnison, Defendant/Appellant. Appeal from the District Court of Woods County, Oklahoma. Honorable Mickey Jay Hadwiger, Trial Judge. Defendant/Appellant, Misty Magnison, appeals orders relating to child custody. After filing the petition in error, Appellant advised the court a new trial motion had been granted and the proceedings in the trial court were pending. Appellant did not advise the court of the status of the case or attach a final order despite the Supreme Court’s order to do so. In his answer brief, Plaintiff/Appellee, Shaun D. Sanders, renewed his motion to dismiss on grounds the appeal is moot. The appeal is DISMISSED for lack of an appealable order. Opinion by GOREE, J.; MITCHELL, P.J., and DOWNING, J., concur. July 26, 2024
121,050 – In re the Marriage of: Kirsten L. Clostio, Petitioner/Appellee, v. Tyler J. Clostio, Respondent/Appellant. Appeal from the District Court of Wagoner County, Oklahoma. Honorable John Luton, Trial Judge. Respondent/Appellant Tyler J. Clostio (Father) appeals from the January 6, 2023 Decree of Divorce and Dissolution of Marriage (the Decree) entered in the divorce proceeding between Father and Petitioner/Appellee Kirsten L. Clostio (Mother). The parties participated in mediation and apparently reached agreements on custody, visitation, and child support. Father’s propositions of error on appeal all stem from the court’s decision to include the Joint Custody Plan in the Decree. On June 25, 2024, we issued an Order (1) noting that the errors Father alleges on appeal appear to have been rendered moot by an Agreed Order Modifying Custody and Visitation filed in Wagoner County on June 11, 2024 and (2) directing Father to file a written response showing cause as to why this appeal should not be dismissed. Because Father failed to respond, we DISMISS the appeal. Opinion by MITCHELL, P.J.; GOREE, J., and DOWNING, J., concur. July 26, 2024
122,045 – Whitney Barfell, Plaintiff/Appellant, v. Integris Health Inc.; Baptist Healthcare of Oklahoma, LLC; Baptist Healthcare of Oklahoma Inc.; Integris Rural Health Inc.; Integris Miami Hospital; Integris Baptist Regional Health Center Auxiliary, Inc.; Sean McCready, D.O.; Chet D. Wilson, D.O.; Mindy McBrien APRN-CNP; Integris Ambulatory Core Corp.; James Lunsford, D.O.; Aleta Fox, P.A.; Shantra Neuhring, D.O.; Daniel Traum, D.O.; Freeman Health System; Gulshan Uppal, M.D., and Elaine Mader, M.D., Defendants/Appellees. Appeal from the District Court of Ottawa County, Oklahoma. Honorable Jennifer McAffrey, Trial Judge. Whitney Barfell appeals from the trial court’s Judgment granting the Motion to Dismiss filed by Freeman Health System (FHS) and Gulshan Uppal, M.D. (Uppal). The trial court determined it lacked both general and specific jurisdiction over FHS and Uppal. Based on our review of the record and applicable law, we find the trial court’s Judgment was not error. Accordingly, we AFFIRM. Opinion by DOWNING, J.; MITCHELL, P.J., and GOREE, J., concur. July 26, 2024
Division IV
120,026 – Chris Saxon, Petitioner/Appellee, vs. Nicole Saxon, Respondent/Appellant. Appeal from an Order of the District Court Oklahoma County, Lynne McGuire, Special Judge. Nicole Saxon, mother of the two children at issue in this case, appeals three decisions of the district court. First, she challenges the court’s grant of sole custody to the children’s father, Chris Saxon. Second, she appeals the court’s finding that the father did not perpetrate domestic violence against her. Finally, she claims the trial judge was required to have recused. Upon review, we find that the court did not err in any respect, and thereby affirm judgment appealed. AFFIRMED. Opinion from the Court of Civil Appeals, Division IV by BLACKWELL, J.; HUBER, P.J., and HIXON, J., concur. July 29, 2024
121,183 – Amy Fox, as Court-Appointed Next of Friend for Minor Child WF, Plaintiff/Appellee, vs. UATP Management, LLC; UATP IP, LLC; One More Shot, LLC; Urban Air-Moore, LLC; and Robert Mario Rivera, Defendants/Appellants, and UA Attractions, LLC, Defendant. Appeal from an Order of the District Court of Oklahoma County, Hon. Jeff Virgin, Trial Judge. The defendants, UATP Management LLC, UATP IP, LLC, One Moore Shot, LLC, Urban Air-Moore LLC, and Robert Mario Rivera, appeal a decision of the district court refusing to enforce an arbitration agreement after the court found that the underlying contract was void as against public policy. On review, we hold that although the challenged release and indemnity provisions may constitute a form of moral hazard that renders the underlying contract void pursuant to public policy, this does not render the severable arbitration provision void. We further find that the question of whether the arbitration agreement was in effect at the time the plaintiff’s injuries allegedly occurred was, under this contract, reserved for the arbitrator. Accordingly, we reverse the decision of the district court and remand for the entry of an order compelling arbitration. REVERSED AND REMANDED. Opinion from the Court of Civil Appeals, Division IV by BLACKWELL, J.; HUBER, P.J., and HIXON, J., concur. July 30, 2024
121,595 – LVNV Funding LLC, Plaintiff/Appellee, vs. Gregory W. Gibson, Defendant/Appellee. Appeal from the District Court of Stephens County, Hon. Jerry Herberger, Trial Judge. In this action to recover for breach of a credit card agreement and upon an indebtedness, Gregory W. Gibson (Gibson), pro se, appeals the trial court’s journal entry of judgment granting LVNV Funding LLC (LVNV) summary adjudication. Based on our review of the record and applicable law, we affirm in part, reverse in part and remand for further proceedings. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTER PROCEEDINGS. Opinion from Court of Civil Appeals, Division IV, by HIXON, J.; HUBER, P.J., and BLACKWELL, J., concur. July 30, 2024