Dispositions Other Than By Published Opinion | June 8, 2022
Oklahoma Court of Civil Appeals
Division I
119,892 — In the Matter of the Estate of: John Horton Dayan, deceased, Dava Dayan, Appellant, v. Mary Ellen Dayan-Varnum, Appellee. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Kurt G. Glassco, Trial Judge. In proceedings to administer an estate, an interested party, Dava Dayan, (Appellant) claims she is an heir because she is the equitably adopted child of Decedent. She also argues Decedent’s domicile was in California, not Tulsa County, Oklahoma. Appellant appeals the order in favor of Mary Ellen Dayan-Vernum, (Appellee) granting letters of administration and determining heirs. We affirm the court’s order concluding it has jurisdiction based on Decedent’s domicile. But we reverse the order determining heirs because Appellant’s counsel reasonably relied on some of the judge’s statements suggesting the hearing would be limited to jurisdiction. We affirm in part and reverse in part. Opinion by GOREE, J.; BELL, P.J., and SWINTON, J., (sitting by designation) concur. June 2, 2022
120,120 — Donald Allen Cory, Plaintiff/Petitioner v. Carlos Andres Garcia, M.D.: Cagr Medical, P.L.L.C., d/b/a Southwestern Dermatology, Defendants, and Norman Regional Health System, d/b/a Norman Regional Hospital, via Norman Regional Hospital Authority, Defendant/Respondent. Appeal from the District Court of Cleveland County, Oklahoma. Honorable Thad Balkman, Trial Judge. Plaintiff, Donald Cory, seeks review of the December 1, 2021 Order Approving Application for an Order to Certify Interlocutory Appeal, after having granted a Motion to Dismiss in favor of Norman Regional Health System, d/b/a Norman Regional Hospital, via Norman Regional Hospital Authority (Norman Regional Hospital), Defendant. We affirm the district court’s decision. Opinion by GOREE, J.: BELL, P.J., and SWINTON, J. (sitting by designation) concur. June 2, 2022
120,042 — In the Matter of the Estate of Velda Mae Rivenburg, Deceased, Earl Austin Rivenburg, Plaintiff/Appellant, v. Bridget Ciliberti, Personal Representative of the Estate of Velda Mae Rivenburg, Appellee. Appeal from the District Court of Garfield County, Oklahoma. Honorable Tom Newby, Trial Judge. Appellant, Earl Austin Rivenburg, seeks review of the Garfield County District Court’s appealed order of November 5, 2021 denying Appellant’s Petition to Contest the Will and Order Admitting Will to Probate and Determination of Heirs. Appellant’s mother, Velda Rivenburg, passed away on February 25, 2020. Her last will, drafted September 7, 2018, was submitted to probate on May 7, 2020. The will differed considerably from the last will of which Appellant was aware; in the 2018 will his mother gave virtually all her property to Appellant’s sister, Bridget Ciliberti, Appellee. For the reasons provided, we affirm the appealed order of the district court. Opinion by GOREE, J.; BELL, P.J., and MITCHELL, V.C.J., (sitting by designation) concur. June 3, 2022
Division II
118,668 — Tonya L. Curell, Plaintiff/Appellee, vs. The Bank of New York Mellon Trust Company, National Association, fka The Bank of New York Trust Company, NA as Successor to J.P. Morgan Chase Bank, NA as Trustee, Defendant/Appellant. Appeal from an Order of the District Court of Pushmataha County, Hon. Michael D. DeBerry, Trial Judge. The Bank of New York Mellon Trust Company, National Association (BNYM) appeals a judgment against it for fraud and breach of contract in a land sale. The jury awarded damages substantially greater than the original amount paid for the property. Nonetheless, BNYM does not challenge the amount of damages on appeal. Nor does it challenge whether its conduct was egregious enough to meet the standard required to award punitive damages. Instead, it argued that Ms. Curell’s claims were all barred as a matter of law, and no jury case existed for any recovery on any theory. However, we reject each of BNYM’s arguments. We find that BNYM waived its defense under the generally-applicable statute of limitations for fraud, that the relevant actors that sold the property to Ms. Curell were BNYM’s agents, and that no provision of the Oklahoma Real Estate License Code barred the claim. As such, we affirm the judgment entered on the jury’s verdict. AFFIRMED. Opinion from the Court of Civil Appeals, Division II by BLACKWELL, J.; WISEMAN, P.J., and RAPP, J., concur. June 3, 2022
Division III
118,946 — Positive Cashflow, Inc., f/k/a Worldwide Restoration, Inc., Butterfield Leasing, Inc., and Nathan Butterfield, Plaintiffs/Appellants, v. Worldwide Restoration, LLC, Response Team 1 Holdings, LLC, f/k/a Response Team Holdings, LLC, Defendants/Appellees, and Response Team 1, LLC, Defendant. Appeal from the District Court of Rogers County, Oklahoma. Honorable Sheila A. Condren, Trial Judge. This appeal and counter‑appeal arise out of a jury trial addressing claims for breach of contract, tortious interference with contractual relations, unpaid wages, and unjust enrichment. The jury returned verdicts in favor of the Plaintiffs/Appellants/Counter‑Appellees Nathan Butterfield, Positive Cashflow, Inc., and Butterfield Leasing, Inc. for breach of contract against Defendant/Appellee Worldwide Restoration, LLC and for tortious interference against Defendant/Appellee/Counter‑Appellant Response Team 1 Holdings, LLC, awarding $50,000 in damages to Butterfield and $500,000 to Positive Cashflow and Butterfield Leasing. The jury returned a defense verdict, however, on Butterfield’s unpaid wages claim, and the trial court denied Positive Cashflow and Butterfield Leasing’s equitable unjust enrichment claim. On appeal, we find the trial court did not err by submitting the tortious interference claims to the jury or by denying Response Team 1 Holdings’ motion for judgment notwithstanding the verdict on those claims. The evidence, viewed in the light most favorable to Plaintiffs, created a question as to whether Response Team 1 Holdings acted in good faith or was justified, privileged, or excused when it prevented its subsidiary from making contractual payments to Plaintiffs. We also find the court did not err by refusing to award additional liquidated damages, by finding in favor of Defendants on unjust enrichment, or by denying Plaintiffs’ request for attorney fees. We agree, however, that 12 O.S. 2011 §928 entitles Plaintiffs to an award of costs. Accordingly, WE AFFIRM IN PART, REVERSE IN PART, AND REMAND for the trial court to enter an award for Plaintiffs’ costs. Opinion by MITCHELL, V.C.J.; PRINCE, P.J., and BELL, P.J.. (sitting by designation), CONCUR. June 6, 2022
119,965 — Dian Peacock, an individual and Craig Jenkins, and individual, Plaintiff’s/Appellants, v. SH Capital, LLC, an Oklahoma Limited Liability Company, Defendant/Appellee. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Douglas E. Drummond, Trial Judge. Plaintiffs/Appellants Dian Peacock and Craig Jenkins (collectively, “Plaintiffs”) successfully sued Defendant/Appellee SH Capital, LLC (Defendant) for a noise nuisance caused by a cooling tower adjacent to their property. The trial court denied Plaintiffs’ post‑trial request for abatement of the nuisance because Defendant had sold the property and the new owner had stopped using the offending tower. In Plaintiffs’ first appeal, they challenged the denial of abatement. This court modified the judgment to include a permanent injunction against the noise nuisance unless it was otherwise abated. Plaintiffs then asked the trial court to reconsider its earlier order that Defendants were entitled to attorney fees, arguing the value of the permanent injunction or cost of abatement must be considered in comparing Plaintiffs’ judgment to Defendant’s offer. Plaintiffs now appeal the denial of their motion to reconsider its finding that Defendant is entitled to an award of fees. Because the amount of fees has not been determined, the order on appeal is not a final, appealable order. We therefore DISMISS this appeal as premature. Opinion by SWINTON, J.; MITCHELL, V.C.J., and PRINCE, P.J., CONCUR. June 6, 2022
120,258 — In Re: The Matter of the 1244 South College Ave. Trust Agreement Square Deal Home Investors, LLC, Appellant, v. Brenden O’Shea, Appellee. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Kurt G. Glassco, Trial Judge. This case involves whether a trust was validly created when the same entity served as both the sole beneficiary and sole trustee. Brendan O’Shea was facing financial difficulties and was behind in his mortgage payments. Knowing of O’Shea’s predicament, Square Deal Home Investments, LLC approached O’Shea and proposed that it would loan O’Shea sufficient funds to bring his past‑due mortgage indebtedness current and to pay the back taxes on the property. As part of the deal, however, Square Deal also required O’Shea to transfer title to O’Shea’s home to Square Deal in its capacity as the trustee of a trust for which Square Deal was both the sole trustee and the sole beneficiary. When the deal turned south and O’Shea was unable to make his rental payments, litigation ensued, including this action by O’Shea in which he sought an order declaring the trust to be revoked. Other litigation is still pending between the parties. The trial court in this case granted summary judgment in favor of O’Shea on the basis that the trust instrument failed under 60 O.S. § 175.6. We AFFIRM the decision of the trial court. Opinion by PRINCE, P.J.; MITCHELL, V.C.J., and SWINTON, J., CONCUR. June 6, 2022
Division IV
119,547 — Bill Stubbs & Co., an Oklahoma Limited Liability Company, Plaintiff, vs. Amanah, LLC, an Oklahoma Limited Liability Company, Ismat Ali, an Individual, Amer Zoubi, an Individual, Defendants, and Saed Araybat, an Individual, Defendant/Cross-Claimant Defendant/Appellant, vs. Ismat Almoutaseb, an Individual, Amer Alzoubi, an Individual, Defendants/Cross-Claimant Plaintiffs/ Third-Party Plaintiffs/Appellees, and Fares Arabeyat, Third-Party Defendant. Appeal from an order of the District Court of Oklahoma County, Hon. Aletia Haynes Timmons, Trial Judge. Saed Arabyat (Appellant) appeals an order denying his petition to vacate a default judgment entered in favor of Ismat Almoutaseb and Amer Alzoubi (collectively, Appellees). Appellant sought vacation pursuant to 12 O.S.2011, §§ 1031 and 1033. Under the facts presented, and given the strong public policy in this state of preferring decisions rendered on their merits rather than by default, we conclude the trial court abused its discretion in refusing to vacate the default judgment as to both damages and liability. Accordingly, we reverse the trial court’s order and remand the matter for further proceedings. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from the Court of Civil Appeals, Division IV, by HIXON, J.; FISCHER, C.J., and BARNES, P.J., concur. June 2, 2022
120,256 — Midpoint Properties, LLC, an Oklahoma Limited Liability Company, Plaintiff/Appellee, vs. Sterling Holdings LLC, an Oklahoma Limited Liability Company, Defendant/Appellant, and The Oklahoma County Treasurer/Board of County Commissioners, Defendants. Appeal from an order of the District Court of Oklahoma County, Hon. Anthony L. Bonner, Trial Judge. Sterling Holdings, LLC (Sterling) appeals summary judgment granted in favor of Midpoint Properties, LLC (Midpoint) on Sterling’s Amended Petition to Vacate a default judgment. The trial court granted summary judgment to Midpoint based on a finding Midpoint properly served Sterling by publication. Sterling had argued it was nevertheless entitled to have the judgment set aside under 12 O.S. §§ 2004(C)(3)(f) and 2004(C)(4)(e) upon showing of lack of actual notice in time to appear in court and make a defense. On review of the law and the applicable record, we reverse the trial court’s grant of summary judgment, and remand for further proceedings consistent with our Opinion. REVERSED AND REMANDED WITH INSTRUCTIONS. Opinion from the Court of Civil Appeals, Division IV, by HIXON, J.; FISCHER, C.J., and BARNES, P.J., concur. June 6, 2022