Dispositions Other Than By Published Opinion | May 18, 2022

Oklahoma Court of Civil Appeals

Division I


Division II

119,507 — Sarah Tamar Stuckey, Petitioner/Appellee, vs. Heidi Michelle Lewis, Defendant/Appellant.  Appeal from an order of the District Court of Oklahoma County, Hon. Cindy H. Truong, Trial Judge.  Heidi Michelle Lewis appeals a final order of protection entered against her for domestic abuse and/or stalking.  After review, we conclude the trial court erred in entering the order because, from the face of the order, the Petitioner failed to show a familial relationship with Lewis that would support such a protective order.  The decision is reversed.  REVERSED.  Opinion from the Court of Civil Appeals, Division II, by WISEMAN, P.J.; RAPP, J., and BLACKWELL, J., concur. May 16, 2022


119,264 — Trinity Restoration and Construction, Inc., Plaintiff/Appellee, vs. Larry Albert James, Defendant/Appellant.  Appeal from an order of the District Court of Oklahoma County, Hon. Susan Stallings, Trial Judge.  Defendant Larry Albert James appeals the trial court’s order granting a default judgment against him and its order denying his motion to vacate that judgment.  After review, we find Defendant had no opportunity to appear and be heard on why the court in its broad discretion should grant Defendant leave to file his answer out-of-time and let the parties proceed to be heard on the merits of their dispute.  Aside from the delay inherent in the COVID-19-related SCAD orders, this case had not advanced far when Defendant quickly sought relief from the default judgment against him, and we conclude that the trial court could have vacated the judgment without causing substantial delay, hardship, or expense, and in doing so, would have allowed the case to be considered on its merits.  We see no prejudice to Plaintiff, nor has Plaintiff demonstrated any, in vacating the default judgment.  We conclude it was an abuse of discretion to deny Defendant’s motion to vacate the default judgment at issue here.  We reverse both the trial court’s order denying the motion to vacate and its default judgment and remand for further proceedings.  REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.  Opinion from the Court of Civil Appeals, Division II, by WISEMAN, P.J.; RAPP, J., and BLACKWELL, J., concur. May 16, 2022


119,814 — In the Matter of the Adoption of A.M.H., A Minor Child, Austin Heller, Appellant, vs. Susanna Marie Ballinger and David Adam Ballinger, Appellees.  Appeal from an order of the District Court of Oklahoma County, Hon. K. Nikki Kirkpatrick, Trial Judge.  Austin Richard Heller (Father) appeals a trial court order finding that his minor child AMH is eligible for adoption without his consent.  Given Father’s well-established, constitutionally protected rights regarding his child, Petitioners confronted a high threshold to surmount, and after review of the record, we conclude they failed to cross that threshold.  Because Petitioners’ evidence to support their petition that Father failed to maintain a substantial and positive relationship with the child was not clear and convincing, we reverse the trial court’s decision.  REVERSED.  Opinion from the Court of Civil Appeals, Division II, by WISEMAN, P.J.; RAPP, J., and BLACKWELL, J., concur. May 17, 2022

Division III

119,605 — In The Matter of the Marriage of McNeill: Vanessa Cecelia McNeill, Petitioner/Appellee, v. Michael Brett McNeill, Respondent/Appellant. Appellant/Respondent Michael Brett McNeill appeals from the trial court’s divorce decree awarding custody and support alimony to Appellee/Petitioner Vanessa Cecelia McNeill.  Both parties sought custody and Appellant, alternatively requested joint custody.  On appeal, Appellant claims the court erred by failing to interview the minor children then awarding custody to Appellee, and by awarding support alimony to Appellee.  As allowed by 43 O.S. 2011 §113, the trial court made a finding that an in camera interview would not serve the children’s best interests.  No error is shown there.  Appellant also contends it was error for the trial court not to grant him a continuance when support alimony was raised for the first time at the pretrial conference.  Father’s request for a continuance, however, did not come until the end of the trial and no abuse of discretion is shown in the denial of that relief.  The award of custody and support alimony are not against the clear weight of the evidence or an abuse of discretion.  Opinion by MITCHELL, V.C.J.; PRINCE, P.J., and SWINTON, J., CONCUR. May 6, 2022


120,268 — City of Tulsa, an Oklahoma Municipal Corporation, Plaintiff/Appellee, v. International Association of Firefighters, Local 176, Defendant/Appellant. Appeal from the District Court of Tulsa County, Oklahoma.  Honorable Caroline Wall, Trial Judge. This is an accelerated review of a dispute between the City of Tulsa and the International Association of Firefighters, Local 176.  The IAFF filed a grievance on behalf of an individual firefighter and sought resolution through arbitration.  The City filed this action to obtain a temporary restraining order and injunctive relief to bar the IAFF from prosecuting the grievance through arbitration. The trial court granted summary judgment in favor of the City and permanently enjoined the IAFF from arbitrating this grievance.  We AFFIRM. Opinion by PRINCE, P.J.; MITCHELL, V.C.J., and SWINTON, J., CONCUR. May 6, 2022

Division IV

119,421 — Pamela K. Kuhn and Cheryl A. Kottwitz, as Co-Executors of The Estate of Rodger L. Rowland, Plaintiffs/Appellees, vs. Newfield Exploration Mid-Continent Inc.; Cimarex Energy Co.; Chisholm Oil and Gas Operating, LLC; and Devon Energy Production Company, L.P., as successor-by-merger to Felix Energy, LLC, Defendants/Appellants, and Brown & Borelli, Inc.; Alanmar Enterprises; Valhalla Energy Corporation; Heritage Resources-Nonop, LLC, GOHO Properties, a Texas Partnership; Leeco Energy & Investments, Inc.; William Braun Resources; Clipe, Inc., the foregoing if in existence and if not in existence then the unknown officers, successors and assigns of such entity; Robert B. Waller and Bradley L. Waller, Co-Personal Representatives of The Estate of Robert L. Waller, Deceased; C. Alan Braun 1957 Trust, the foregoing if in existence and if not in existence then the unknown beneficiaries, successors and assigns of such Trust; James W. Hatcher; David Guest; Daril Wayne Reese; Barbara J. Reese; Lowell Schneberger; Linda Schneberger; David Holt, the foregoing if living, but if deceased, then the unknown heirs, executors, administrators, devisees, trustees, grantees, successors and assigns of such deceased person or persons; Ivy Creek Investments, Ltd.; Consul Properties, LLC; Dominion Oklahoma Texas Exploration & Production, Inc., as successor to Future Resources Ltd.; Courtney Vaughn-Roberson; James T. Boggs; Gerald A. Whitlaw; Dorthy Whitlaw; Little Chief Royalty Company, Inc.; TEP Anadarko Basin North III LLC; TEP Anadarko Basin North IV LLC; Sooner Trend Minerals, LLC, Defendants.  Appeal from an Order of the District Court of Kingfisher County, Hon. Lance Schneiter, Trial Judge.  Newfield Exploration Mid-Continent Inc. (Newfield), now known as Ovintiv Mid-Continent Inc. (Ovintiv); Chisholm Oil and Gas Operating, LLC (Chisholm); Cimarex Energy Co. (Cimarex); and Devon Energy Production Company, L.P. (Devon), as successor-by-merger to Felix Energy LLC, appeal an order granting summary judgment in favor of Pamela K. Kuhn and Cheryl A. Kottwitz, as co-executors of the Estate of Rodger L. Rowland (Plaintiffs).  The seminal issue is whether Plaintiffs met their burden of establishing that the undisputed material facts show the overriding royalty interest granted to Rodger L. Rowland burdens 100% of the leaseholds of the land at issue as a matter of law.  Based on our review the record and applicable law, we find Plaintiffs’ motion was insufficient to prove their entitlement to judgment as a matter of law.  Therefore, we reverse the district court’s order granting Plaintiffs’ motion for summary judgment and remand for further proceedings.  REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.  Opinion from Court of Civil Appeals, Division IV, by HIXON, J.; FISCHER, C.J., and RAPP, J. (sitting by designation), concur. May 12, 2022


118,867 (consolidated with Case No. 118,976) – William Daniel d/b/a Summit Wealth Solutions, Plaintiff/Appellant, v. John V. Skurkey, individually, Defendant/Appellee, and Legacy Financial Advisors, LLC, an Oklahoma Limited Liability Company, Defendant, v. The Summit Group, Inc., an Oklahoma Corporation, and Summit Partners, LLC, an Oklahoma Limited Liability Company, d/b/a Capital Wealth Management, LLC, d/b/a Summit Wealth Management, d/b/a Summit Wealth Solutions, LLC, d/b/a Summit Wealth Concepts, Third-Party Defendants.  Appeal from the District Court of Oklahoma County, Hon. Susan Stallings, Trial Judge.  We conclude that, as a result of failing to raise allegations of error concerning the district court’s grant of summary judgment in his new trial motion, William Daniel d/b/a Summit Wealth Solutions (Mr. Daniel) waived any allegations of error concerning the district court’s grant of summary judgment.  We also conclude the district court did not err in denying Mr. Daniel leave to amend to assert a statute of limitations defense.  Furthermore, Mr. Daniel has not identified any new causes of action, theories of liability or defenses that were not timely raised by John V. Skurkey; relatedly, we conclude no fundamental points of dispute between the parties were withheld by Mr. Skurkey.  We also conclude the court did not abuse its discretion in the admission of evidence regarding the extent of damages.  In addition, we conclude the district court did not err in declining to grant a directed verdict in favor of Mr. Daniel and, finally, we find unpersuasive Mr. Daniel’s various arguments attacking aspects of the trial court’s rulings on dissolution and accounting issues.  Accordingly, we affirm.  AFFIRMED.  Opinion from Court of Civil Appeals, Division IV, by BARNES, P.J.; FISCHER, C.J., and BLACKWELL, J. (sitting by designation), concur. May 12, 2022


119,699 – Alpha Concrete Products, LLC, Plaintiff/Appellee, v. CF Alexander & Associates, LLC, and Charles F. Alexander, individually, Defendants/Appellants.  Appeal from the District Court of Oklahoma County, Hon. Don Andrews, Trial Judge.  Defendants appeal from the district court’s Judgment denying their application to vacate an arbitrator’s award and granting Plaintiff’s Motion for Order Confirming Award of Arbitrator.  Defendants assert the arbitrator committed misconduct by basing its award “upon [the arbitrator’s] false assumption that [Defendants] did not fully answer discovery[.]”  We reject Defendants’ argument because it is possible to interpret the arbitrator’s award as not being based on a lack of compliance with a discovery order.  Indeed, the only reasonable interpretation of the arbitrator’s award is that the arbitrator attempted to reach its determination based on an interpretation of the agreement at issue under the applicable facts and law, and we must decline Defendants’ invitation to interpret the arbitrator’s award by isolating one sentence and disregarding all the others in the award.  We also reject Defendants’ argument that certain provisions in the agreement might have the effect of sealing off unlawful provisions from the reach of Oklahoma law and rendering unenforceable provisions enforceable.  Consequently, we affirm the district court’s Judgment denying Defendants’ application to vacate the arbitrator’s award and granting Plaintiff’s Motion for Order Confirming Award.  AFFIRMED.  Opinion from Court of Civil Appeals, Division IV, by BARNES, P.J.; FISCHER, C.J., and HIXON, J., concur. May 13, 2022


119,644 – Accident Care and Treatment Center, Inc.; Southwest Regional Imaging and Radiology, LLC; Injury Recovery Physical Therapy, LLC; and Interventional Radiology Associates, LLC, Plaintiffs/Appellees, v. CSAA General Insurance Company d/b/a AAA Insurance Company, Defendant/Appellant.  Appeal from the District Court of Oklahoma County, Hon. Richard C. Ogden, Trial Judge.  This appeal concerns an action to enforce and foreclose medical service liens.  The trial court granted summary judgment to Appellees against Appellant (CSAA) finding no evidence of an assignment to CSAA in the text of a release of the patient’s right to challenge the lien amounts.  Implicitly finding no patent or latent ambiguity in the subject release, the trial court found parol evidence “may not be considered to vary the substantive terms of the release.”  While the trial court determined the release contract contained no assignment language, the trial court made no determination about whether the summary judgment record raised an inference sufficient to preclude summary judgment that an assignment was made in the light of evidentiary materials submitted by CSAA regarding an oral agreement.  Consequently, even assuming there is no patent or latent ambiguity in the release, the trial court made no findings about whether questions of material fact are present in the summary judgment record regarding any claimed separate, oral agreement between the patient and CSAA assigning her rights to challenge Appellees’ lien amounts.  Given that absent finding, there is no further finding that even if the summary judgment record, taken in the light most favorable to CSAA, raises the inference that such an oral agreement was made, whether that agreement impermissibly varies the terms of the release.  Consequently, the trial court’s grant of summary judgment to Appellees is reversed and the case remanded to the trial court for further proceedings.  REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.  Opinion from Court of Civil Appeals, Division IV, by BARNES, P.J.; FISCHER, C.J., and RAPP, J. (sitting by designation), concur. May 16, 2022