Dispositions Other Than By Published Opinion | Oct. 12, 2022
Oklahoma Court of Civil Appeals
Division I
Division II
119,698 – In the Marriage of: Audrey Brown, Petitioner/Appellee/Counter-Appellant, vs. Steven Brown, Respondent/Appellant/Counter-Appellee. Appeal from an Order of the District Court of Cleveland County, Hon. Jeff Virgin, Trial Judge. Steven J. Brown appeals the trial court’s denial of his motion to modify support alimony owed to his former wife, Audrey Brown, after the court found that there had been no material change of circumstances permitting a modification. Audrey appeals the award of support alimony as inadequate under the circumstances. Upon review, we affirm both decisions of the trial court. AFFIRMED. Opinion from the Court of Civil Appeals, Division II by BLACKWELL, J.; WISEMAN, P.J., and BARNES, J. (sitting by designation), concur. Oct. 7, 2022
119,578 – In the Matter of the Guardianship of B.D.B.: Stephen Todd Franz and Tisha Franz. Appeal from an Order of the District Court of Oklahoma County, Hon. Allen J. Welch, Trial Judge. Stephen Todd Franz and Tisha Franz appeal a decision of the district court refusing to grant them a general or special guardianship over the minor child BDB. The primary basis of the Franzes’ appeal concerns the trial court’s refusal to consider an unanswered request for admission as conclusive. On review, we find this decision to be within the trial court’s discretion and affirm. AFFIRMED. Opinion from the Court of Civil Appeals, Division II by BLACKWELL, J.; WISEMAN, P.J., and HIXON, J. (sitting by designation), concur. Oct. 7,2022
Division III
120,454 – Julie Huff and Terry Wade Huff, Plaintiffs/Appellants, v. Creek County Board of Commissioners, et. al., Defendants/Appellees. Appeal from the District Court of Creek County, Oklahoma. Honorable Douglas W. Golden, Trial Judge. In 2005, Cedric Norris was an inmate in the Texas Department of Criminal Justice, serving a sentence for certain burglaries. Following an extradition to Oklahoma to face trial on multiple charges of robbery by force in Tulsa and Creek counties, Norris was convicted in 2006 in separate trials in Creek and Tulsa counties and sentenced to sixty years and an additional ten years, respectively, to run concurrently. Norris was returned to the Texas Department of Corrections’ custody in January 2007. In March 2012, Norris was released from the Texas Department of Corrections’ custody on parole, but was not transferred to Oklahoma to serve his sixty‑year sentence in Oklahoma. Thereafter, in 2016, Norris robbed the Bank of Eufaula. He killed the bank manager and Norris took Appellant, Julie Huff, hostage, forcing her to drive a getaway vehicle. After driving a short distance, police disabled the vehicle, and both Huff and Norris were shot by police. Huff survived the events and filed a Governmental Tort Claim and, thereafter, this negligence action against the Board of Commissioners of Creek County and other governmental officials. The Board filed a motion to dismiss, which the trial court granted. The Huffs then moved the trial court to reconsider, which the trial court declined. The Huffs now appeal, claiming that the trial court’s dismissal was improper, that the trial court erred when it denied the Huffs motion to reconsider, and that the trial court was biased against them such as to make a fair ruling impossible. After de novo review of the record, we find that the trial court did not err in dismissing the Huffs claims and denying their motion to reconsider because the Board owed no duty to protect and that the Board is immune from liability for the Huffs’ claims under the GTCA. We also find no bias on behalf of the trial court. Therefore, we AFFIRM. Opinion by PRINCE, P.J.; MITCHELL, V.C.J., and SWINTON, J., concur. Oct. 7, 2022
119,983 – Discover Bank, Plaintiff/Appellee, v. Kara Cagle, Defendant/Third-Party Plaintiff/Appellant. V. Stephen L. Bruce P.C. d/b/a Stephen Bruce & Associates, Third-Party Defendant/Appellee. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Kelly M. Greenough, Trial Judge. Plaintiff/Appellee Discover Bank (Discover) filed three lawsuits against Defendant/Appellant Kara Cagle (Cagle) to recover on the same claim for defaulted credit card debt. Discover filed multiple suits under the belief that the first two suits were automatically dismissed by operation of law for failure to gain service on Cagle within the statutorily required 180 days. This case arises from the second lawsuit. In this case, after 180 days, Cagle filed an answer with affirmative defenses, counter-claims, and a third-party claim against Discover’s attorney. Discover moved to compel arbitration which the district court granted. It is from the court’s interlocutory order compelling arbitration that Cagle now appeals. The decisive issues on appeal are whether the lawsuit was automatically dismissed when Discover failed to gain service on Cagle within 180 days; and if the lawsuit was not automatically dismissed, whether the court properly compelled arbitration of Cagle’s counter-claims when Cagle had not elected arbitration. We hold Cagle’s claims survived beyond the 180 days required for service, as the case was not automatically dismissed and there is no order dismissing the case; and Cagle’s claims are subject to arbitration pursuant to Discover’s election to arbitrate and Cagle’s failure to opt out of arbitration. The facts do not establish that Discover waived its right to seek arbitration. Opinion by MITCHELL, V.C.J.; PRINCE, P.J., and SWINTON, J., concur. Oct. 7,2022
120,206 – In the Matter of The Estate of Jerry Duane Martin, Deceased: Bridget Martin, Appellant, v. Jeremy Martin, Appellee. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Kurt G. Glassco, Trial Judge. Appellant Bridget Martin (Wife) appeals from the probate court’s order denying admission of a will Wife proffered as the last will and testament of the decedent, Jerry Duane Martin (Decedent). Wife contends the court’s decision was against the clear weight of the evidence because she showed the will had been executed with all the formalities required by 84 O.S. 2011 §55 and Son failed to prove the grounds of his will contest. The record indicates Wife only produced a photocopy of the will and failed to present the original. A photocopy of a will that does not bear the decedent’s original signature or those of his witnesses fails to comply with §55 and cannot be admitted to probate. In re Estate of Goodwin, 2000 OK CIV APP 147, ¶11, 18 P.3d 373, 375. Accordingly, the court did not err by denying admission of the will. AFFIRMED. Opinion by MITCHELL, V.C.J.; PRINCE, P.J., and SWINTON, J., concur. Oct. 7,2022
120,234 – Angela Michelle Stephens, Petitioner/Appellee, v. Jarrett Michael Stephens, Respondent/Appellant. Appeal from the District Court of Osage County, Oklahoma. Honorable Stuart L. Tate, Trial Judge. Respondent/Appellant, Jarrett Michael Stephens (“Father”), appeals an order denying his Motion to Vacate a default judgment in a child custody proceeding. The trial court granted a default judgment when Father, who was not represented by counsel at the time, failed to appear for a pre‑trial conference. Father filed a Motion to Vacate pursuant to 12 O.S. § 1031.1. The Motion to Vacate was denied by the trial court and Father commenced this appeal. Petitioner/Appellee, Angela Michelle Stephens (“Mother”), filed a Motion to Dismiss this appeal claiming that Father did not seek vacation of the final Journal Entry modifying custody. We find that Mother’s Motion to Dismiss should be denied and that the trial court abused its discretion when it denied Father’s Motion to Vacate. Therefore, the default judgment is vacated and the matter is remanded to the trial court for further proceedings on the merits of the modification of child custody action.. Opinion by PRINCE, P.J.; MITCHELL, V.C.J., and SWINTON, J., concur. Oct. 7,2022
Division IV
119,080 – In the Matter of the Estate of Debra Kay Moore, Deceased: Bob Moore, Appellant, vs. Angela Kay Brooks, Appellee. Appeal from Order of the District Court of Hughes County, Oklahoma, Hon. Trisha Smith, Trial Judge. Appellant Bob Moore appeals the order of the district court admitting his late wife’s will to probate and finding that the couple’s prenuptial agreement was valid. The record on appeal contains sufficient evidence to support the district court’s determination that the prenuptial agreement between Bob and Debra Kay Moore was valid and properly applicable to the probate of Debra’s estate. The order of the district court sustaining Appellee Angela Kay Brooks’ demurrer to the evidence and finding in favor of the prenuptial agreement’s validity is affirmed. AFFIRMED. Opinion from the Court of Civil Appeals, Division IV, by FISCHER, C.J., BARNES, P.J., and HIXON, J., concur. Oct. 5, 2022
120,561 – Oklahoma Landfill Company, an Oklahoma General Partnership; E.W. Keller; Kathryn Jorski; Leslie Johnson; Trey Jorski; Patrick Jorski; Carolyn Land; Angie Barboza; John Jorski; Mike Jorski; Kristi Crawford; Lori Jorski; Karen Reen; Natalie Means; and Zak Jorski, Plaintiffs/Appellants, vs. Waste Connections, Inc. and Oklahoma City Waste Disposal, Inc., Defendants/Appellees. Appeal from the District Court of Oklahoma County, Hon. Don Andrews, Trial Judge. Plaintiffs appeal from the district court’s grant of partial summary judgment in favor of Defendants. In summary process, the ultimate decision turns on a purely legal determination: whether one party is entitled to judgment as a matter of law because there are no material disputed factual questions. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051 (citation omitted). The specific legal determination presented on this appeal concerns contract interpretation. Although a contract may contain language (e.g., a term or a provision) susceptible to two or more interpretations when that language is viewed narrowly or out of context of the wider agreement, the contract itself is not ambiguous and in need of extrinsic evidence to clarify the doubt unless the language cannot be “clarified by reference to other parts of the contract.” Paclawski v. Bristol Labs., Inc., 1967 OK 21, ¶ 0, 425 P.2d 452 (Syllabus by the Court). In the present case, any ambiguity in the contract is localized, and persists only under a forced or strained construction, by taking a provision out of context, and by narrowly focusing on a provision, as Defendants seek to do by overfocusing on one phrase in the more than twenty pages of contract provisions. A reading of the agreements as a whole reveals only an array of provisions supporting the opposite reading. Because the language disputed by the parties is not genuinely uncertain in light of a reading of the contract as a whole, we conclude that extrinsic evidence is unnecessary and that Plaintiffs’ proposed reading is correct as a matter of law. Therefore, we reverse the order granting Defendants’ motion for partial summary judgment, and we remand with instructions that the Plaintiffs’ motion for partial summary judgment be granted. REVERSED WITH INSTRUCTIONS. Opinion from Court of Civil Appeals, Division IV, by BARNES, P.J.; FISCHER, C.J., and HIXON, J., concur. Oct. 5, 2022
119,234 – In the Matter of the Guardianship of C.H., A Minor Child. Derick J. Logan, Appellant, vs. Retta Thomas and William Thomas, Appellees. Appeal from the District Court of Muskogee County, Hon. Weldon Stout, Trial Judge. Derick J. Logan, the biological father of the minor child C.H., appeals the trial court’s Order Terminating Parental Rights. The record reflects C.H. was not represented by independent counsel at any point in the proceeding. The trial court’s failure to appoint separate counsel for C.H. pursuant to 10 O.S. § 7505-1.2 requires this Court to vacate the order granting Appellees’ application to declare C.H. eligible for adoption without Father’s consent. The trial court’s Order Terminating Parental Rights is vacated. This matter is remanded to the trial court for further proceedings consistent with this Opinion. VACATED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. Opinion from Court of Civil Appeals, Division IV, by BARNES, P.J.; FISCHER, C.J., and HIXON, J., concur. Oct. 6, 2022