Dispositions Other Than By Published Opinion | Oct. 2, 2024
Oklahoma Court of Civil Appeals
Division I
121,882 – In the Matter of D.J. and J.J., Jr., Deprived Children. State of Oklahoma, Petitioner/Appellee, v. Shawntae Mayfield, Respondent/Appellant. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Kevin C. Morrison, Trial Judge. Respondent/Appellant Shawntae Mayfield appeals from a judgment terminating her parental rights to D.J. and J.J., Jr. (Children). Following a bench trial, the court found that Petitioner/Appellee the State of Oklahoma had made active efforts to prevent the breakup of the Indian family; that the State presented expert testimony proving beyond a reasonable doubt that continued custody by Mayfield was likely to result in serious harm to Children; and that termination was in Children’s best interests on the grounds of failure to correct the conditions of substance abuse, failure to maintain a safe home, and threat of harm. Mayfield argues the trial court erred in finding she waived her right to a jury trial and in finding the State met its burden of proving continued custody was likely to result in serious harm. Mayfield failed to appear for the second day of trial, even after being given extra time and being warned of the consequence of not appearing. On these facts and pursuant to statute, the trial court had discretion to find she had waived her right to a jury trial. At trial, the State presented an expert whose testimony proved beyond a reasonable doubt that serious harm was likely to result if Mayfield retained custody. The record shows termination was in Children’s best interests and we affirm. Opinion by SWINTON, P.J.; BELL, V.C.J., and PRINCE, J., CONCUR. Sept. 26, 2024
121,917 – In the Matter of E.P. and Z.P., Deprived Children, State of Oklahoma, Petitioner/Appellee, v. Shawntae Mayfield, Respondent/Appellant, Appeal from the District Court of Tulsa County, Oklahoma. Honorable Kevin C. Morrison, Trial Judge. Respondent/Appellant Shawntae Mayfield appeals from a judgment terminating her parental rights to two minor children, E.P. and Z.P. (Children). Following a bench trial, the court found Petitioner/Appellee the State of Oklahoma had made active efforts to prevent the breakup of the Indian family; that the State presented expert testimony proving beyond a reasonable doubt that continued custody by Mayfield was likely to result in serious harm to Children; and that termination was in Children’s best interests on the grounds of failure to correct the conditions of substance abuse, failure to maintain a safe home, and threat of harm. Mayfield argues the trial court erred in finding Mayfield waived her right to a jury trial and in finding the State met its burden of proving continued custody was likely to result in serious harm. The record supports the trial court’s finding that Mayfield waived her right to a jury trial. The record also shows the State proved beyond a reasonable doubt that serious harm was likely to result if Mayfield retained custody. The record shows termination was in Children’s best interests and we affirm. Opinion by SWINTON, P.J.; BELL, V.C.J., and PRINCE, J., CONCUR. Sept. 26, 2024
122,212 – Sherry Burke, as trustee of the Patrick Residence Revocable Trust, as Personal Representative of the Estate of Ueal E. Patrick, and as Trustee of the Ue Patrick Irrevocable Grandchildren Trusts FBO Sean Patrick and Ryan Patrick, Plaintiff/Appellant, v. Beverly A. Atteberry, and Beverly Atteberry, P.C., Defendants/Appellees. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Rebecca B. Nightingale, Trial Judge. In this action for legal malpractice, negligence, and breach of fiduciary duty, Plaintiff/Appellant, Sherry Burke, as trustee of the Patrick Residence Revocable Trust, as personal representative of the Estate of Ueal E. Patrick (Decedent), and as Trustee of the UE Patrick Irrevocable Grandchildren’s Trust FBO Sean Patrick and Ryan Patrick (Creditor), appeals from the trial court’s summary judgment in favor of Defendants/Appellees, Beverly A. Atteberry, an individual and Beverly A. Atteberry, P.C., an Oklahoma Professional Corporation (Counsel). Creditor brought this action against Counsel for allegedly allowing the nonclaim period at 58 O.S. 2021 §337(F)(2) and §339 to expire in a probate proceeding; thereby forever barring Creditor from bringing an ancillary proceeding or independent action against the personal representative of the estate to recover a substantial debt owed by Decedent. The trial court announced Creditor’s claims against the estate were time-barred at the time she engaged Counsel; and therefore, Creditor’s claims against Counsel for legal malpractice, breach of fiduciary duty and negligence fail. The court also held the legal malpractice claim failed because Creditor cannot establish that Counsel breached its duty to Creditor or that Creditor would have succeeded in the probate proceeding but for Counsel’s inaction. After de novo review of the record, we find the last sentence of §337(F)(2) is susceptible to more than one interpretation; and is therefore, ambiguous. Consequently, we hold Counsel cannot be held negligent or in breach of her fiduciary duty for wrongfully interpreting the ambiguous statute. The trial court’s summary judgment is AFFIRMED. Opinion by BELL, V.C.J.; SWINTON, P.J., CONCURS, and PRINCE, J., CONCURS IN RESULT. Sept. 26, 2024
Division II
121,126 – In re the Marriage of Melody Gay Darakhshan, Petitioner/Appellee, v. Behrooz Darakhshan, Respondent/Appellant. Appeal from the District Court of Oklahoma County, Hon. Gregory J. Ryan, Trial Judge. Behrooz Darakhshan (Husband) seeks review of district court orders entered following the issuance of a Decree of Dissolution of Marriage. Although we conclude the court disposed of Melody Gay Darakhshan’s (Wife) post-trial motions in a manner that was procedurally without error and, furthermore, that the court was not deprived of its jurisdiction by Husband’s attempt to transfer certain property prior to the court addressing Wife’s post-trial motions, it is nevertheless necessary that we vacate that portion of the court’s order awarding Wife $197,486. Wife requested, in lieu of this award, that the court award her certain additional items of marital property – i.e., a certain truck and two parcels of real property. It was clearly the intent of the court, consistent with Wife’s request, that the money judgment be, in effect, vacated and replaced by the court’s order sustaining Wife’s motion and awarding her the truck and two parcels of real property in lieu of the money judgment. For this reason, we affirm the decree and the court’s orders in all respects except we vacate the court’s award to Wife of $197,486. AFFIRMED IN PART AND VACATED IN PART. Opinion from Court of Civil Appeals, Division II, by BARNES, C.J.; WISEMAN, P.J., and FISCHER, J., concur. Sept. 27, 2024
Division III
121,304 – RST Construction, LLC, Plaintiff/Appellee, v. AWS Roofing Services Inc., and State Automobile Mutual Insurance Company, Defendants/Appellants, and AWS Roofing Midwest, and Drytech Roofing and Restoration LLC, Defendants. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Daman H. Cantrell, Trial Judge. Defendants/Appellants, AWS Roofing Services Inc. and State Automobile Mutual Insurance Company, appeal a denial of their motions for attorney fees against RST Construction LLC, Plaintiff / Appellee. Appellants were not entitled to fees because they did not purchase or sell goods, wares, or merchandise pursuant to such a contract within the meaning of 12 O.S. §936(A). Affirmed. Opinion by GOREE, J.; MITCHELL, P.J., and DOWNING, J., concur. Sept. 26, 2024
121,318 – Jeff and Victoria Henderson, Plaintiffs/Appellees, v. Amber Jacobs and Laura Buchanan, Defendants/Appellants. . Appeal from the District Court of Muskogee County, Oklahoma. Honorable Roy D. Tucker, Trial Judge. Appellants, Amber Jacobs and Laura Buchanan appeal the Journal Entry of Judgment entered on April 26, 2023, awarding Jeff and Victoria Henderson possession of property located in Ft. Gibson, Oklahoma. Based on our review of the record and applicable law, we AFFIRM. Opinion by DOWNING, J.; MITCHELL, P.J., and GOREE, J., concur. Sept. 26, 2024
Division IV
121,563 – William J. Nedbalek, Jr., Plaintiff/Appellee, and Patricia A. Nedbalek, William J. Nedbalek, III, and Carolyn A. Nedbalek, Plaintiffs, vs. BDR Ranch, LLC, a domestic limited liability company, Defendant/Appellant, and Bryan D. Raymer and Covel 100, LLC, Defendants. Appeal from the District Court of Canadian County, Hon. Paul Hesse, Trial Judge. BDR Ranch, LLC appeals the trial court’s order awarding it nominal damages of $1.00 against William J. Nedbalek, Jr. for trespass. Based on our review of the record and applicable law, we affirm the order. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by HIXON, J.; HUBER, P.J., and BLACKWELL, J., concur. Sept. 25, 2024
121,923 – William Miskel and Joi Miskel (McClendon), Plaintiffs/Appellees, vs. David Stanley Chevrolet, Inc., Defendant/Appellant. Appeal from the District Court of Oklahoma County, Hon. Richard Ogden, Trial Judge. David Stanley Chevrolet, Inc. (David Stanley) appeals the trial court’s order denying its motion to compel arbitration. The issue on appeal is whether the trial court correctly determined that William Miskel (Miskel) was constructively fraudulently induced into signing the arbitration clause. The trial court’s order denying David Stanley’s motion to compel arbitration is reversed. The matter is remanded to the trial court with directions to enter an order compelling Miskel to arbitration and staying the litigation proceeding as to Miskel. Whether McClendon is subject to any arbitration agreement, or whether the court should stay her claim(s) pending Miskel’s arbitration must first be addressed by the trial court. See 12 O.S.2021, § 1858(G). REVERSED AND REMANDED WITH DIRECTIONS. Opinion from Court of Civil Appeals, Division IV, by HIXON, J.; HUBER, P.J., and BLACKWELL, J., concur. Sept. 25, 2024
121,243 – Justin Carson, Petitioner/Appellant, vs. Jade Carson, Respondent/Appellee. Appeal from the District Court of Pittsburg County, Hon. Tim Mills, Trial Judge. Justin Carson (Father) appeals the Pittsburg County District Court’s Journal Entry of Modification awarding Jade Carson (Mother) and Father joint legal custody of the parties’ minor child, S.C., and ordering the parties to alternate physical custody of the minor child on a year-to-year basis. The Journal Entry of Modification is reversed. On remand, the district court shall appoint one parent as the primary physical custodian of S.C., and comply with the guidance provided by this Opinion, Boatman v. Boatman, 2017 OK 27, 404 P.3d 822, and Williamson v. Williamson, 2022 OK CIV APP 14, 517 P.3d 1000. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division IV, by HUBER P.J.; HIXON, J., concurs, and BLACKWELL, J., concurs in result. Sept. 25, 2024
122,124 – Jennifer Richey, Plaintiff/Appellant, vs. Wal-Mart Stores East, L.P.,Defendant/Appellee. Appeal from the District Court of Oklahoma County, Hon. C. Brent Dishman, Trial Judge. Plaintiff Jennifer Richey appeals the district court’s Order Granting Defendant’s Motion to Dismiss Plaintiff’s Petition. We conclude Richey has failed to show any district court error, and we affirm the district court’s Order Granting Defendant’s Motion to Dismiss Plaintiff’s Petition. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by HUBER, P.J.; HIXON, J., and BLACKWELL, J., concur. Sept. 25, 2024
122,018 – Allan D. Hare, Petitioner, vs. Multiple Injury Trust Fund, and The Workers’ Compensation Commission, Respondents. Appeal from the Workers’ Compensation Commission. Petitioner Allan D. Hare appeals an Order of the Workers’ Compensation Commission affirming the Administrative Law Judge’s denial of Permanent Total Disability (PTD) benefits sought from the Multiple Injury Trust Fund. Petitioner contends the Commission impermissibly deviated from the opinion of the Commission Independent Medical Examiner (CIME) appointed to review his claim, which found him permanently and totally disabled. On review of the record on appeal, we find the Commission’s decision to deviate from the opinion of the CIME was supported by clear and convincing evidence and its denial of PTD benefits should be sustained. SUSTAINED. Opinion from Court of Civil Appeals, Division IV, by HIXON, J.; BLACKWELL, J., and BARNES, C.J. (sitting by designation), concur. Sept. 26, 2024
121,207 – Terry L. Phillips, as Personal Representative of the Estate of Oliver Elmo Phillips, Deceased, Plaintiff/Appellant, vs. Etta McLemore and Deborah S. Davis, Defendants/Appellees. Terry Phillips appeals the results of a summary judgment and bench trial finding no actual or constructive fraud, undue influence, conversion, or forgery by defendant Etta McLemore regarding the property of Terry’s father, Oliver Phillips. On review, we affirm the decisions of the trial court. AFFIRMED. Opinion from the Court of Civil Appeals, Division IV by BLACKWELL, J.; HUBER, P.J., and HIXON, J., concur. Sept. 26, 2024