Dispositions Other Than By Published Opinion | Oct. 5, 2022
Oklahoma Court of Civil Appeals
Division I
120,210 – Jimmy Wayne Spencer as Special Administrator and Representative of the Estate of Mark Glen Spencer, and as Representative of the Beneficiaries of the Estate of Mark Glen Spencer, Plaintiff/Appellant, v. Lana Nelson, D.O. and Norman Regional Hospital Authority, a Public Trust d/b/a Norman Regional Health System, Defendants/Appellees. Appeal from the District Court of Cleveland County, Oklahoma. Honorable Thad Balkman, Trial Judge. In this wrongful death action, Plaintiff/Appellant, Jimmy Wayne Spencer, as Special Administrator of the Estate of Mark Glen Spencer, deceased, and Representative of the Beneficiaries of the Estate of Mark Glen Spencer, appeals from the trial court’s journal entry granting the motion to dismiss filed by Defendants/Appellees, Lana Nelson, D.O., and Norman Regional Hospital Authority, a Public Trust, dba Norman Regional Health System (Hospital). The parties agree Hospital is a political subdivision under the Governmental Tort Claims Act, 51 O.S. 2011 §151 et seq. (GTCA). The parties also agree that Dr. Nelson is an employee of Hospital. The trial court granted the dismissal on the basis that Plaintiff was aware of the existence of the wrongful death claim prior to the expiration of the deadline to give notice of tort claim under §156(B) and Plaintiff did not submit a timely notice of tort claim as required by the GTCA. The court also found Nelson was an employee of Hospital acting within the scope of her employment with regard to Plaintiff’s claims; therefore Nelson has immunity under the GTCA from Plaintiff’s claims. For the reasons set forth below, we affirm the court’s dismissal order. Opinion by BELL, P.J.; GOREE, J., and DOWNING, J., concur. Sept. 28, 2022
120,556 – Julie Wyrick, an individual, Plaintiff/Appellant, Erin Donovan, Successor Trustee of the Toni Wyrick House Trust dated September 18, 1997; and Toni Wyrick, an individual, Defendants/Appellees. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Kurt G. Glassco, Trial Judge. Plaintiff/Appellant, Julie Wyrick, seeks review of the summary judgment orders of the Tulsa County District Court in favor of Toni Wyrick (March 18, 2022) and Erin Donovan (June 15, 2022), putative trustees of the Toni Wyrick House Trust. The district court found Julie Wyrick signed a binding release negating all her claims to the trust, resulting in Julie Wyrick having no valid claims in this lawsuit. The court also found Julie Wyrick had no standing to bring her claims. For the reasons provided, we find there are material questions of fact that preclude the summary judgments issued by the district court. This cause is reversed and remanded for further proceedings. Opinion by GOREE, J.; BELL, P.J., and DOWNING, J., concur. Sept. 28, 2022
Division II
119,166 – Thurman Buck, Plaintiff/Appellee, vs. Russell Goodwin, Jeremy Thomas and Oklahoma Predator Prevention, Defendants/Appellants. Appeal from an Order of the District Court of Canadian County, Hon. Jack. D. McCurdy II, Trial Judge. The defendants appeal the district court’s denial of their motion to dismiss the plaintiff’s petition pursuant to the Oklahoma Citizens Participation Act (OCPA). On review, we find that the defendants met their first-stage OCPA burden to show that the OCPA applied. This shifted the burden to the plaintiff to show a prima facie case for at least one of his claims, which were defamation per se, libel, slander, and intentional infliction of emotional distress. We find the plaintiff failed to meet this burden. Accordingly, the trial court erred in denying the defendants’ motion to dismiss. We reverse and remand with instructions to enter dismissal in favor of all defendants. REVERSED AND REMANDED. Opinion from the Court of Civil Appeals, Division II by BLACKWELL, J.; WISEMAN, P.J., and HIXON, J. (sitting by designation), concur. Sept. 28, 2022
119,398 – Mitch Palmer, an individual, Plaintiff/Appellant, vs. Steve Bertram, an individual, Defendant/Appellee. Appeal from the District Court of Lincoln County, Hon. Cynthia Ferrell Ashwood, Trial Judge. Plaintiff, Mitch Palmer, appeals the trial court’s order awarding defendant, Steve Bertram, attorney fees and costs after a jury rendered a verdict in favor of Bertram and against Palmer. The trial court’s order awarding fees and costs is affirmed. AFFIRMED. Opinion from Court of Civil Appeals, Division II, by BLACKWELL, J.; WISEMAN, P.J., and BARNES, J. (sitting by designation), concur. Sept. 29, 2022
119,430 – In re the Marriage of: Geoffrey Goble, Petitioner/Appellant, vs. Lynn Bich Thuy Nguyen, Respondent/Appellee. Appeal from an Order of the District Court of Cleveland County, Hon. Thad Balkman, Trial Judge. Geoffrey Goble appeals a decision dividing the equity of the parties’ marital home in a divorce action. The couple purchased the home during their marriage. At the time of purchase, title was taken as joint tenants and the property was made subject to a jointly held note and mortgage. By the time of the divorce, the note had been paid in full, the mortgage was released, and the property had an agreed value. The parties further agreed to all aspects of the property division except the proper division of the equity in the marital home. Geoffrey argued that the value of the home should be shared equally. Lynn argued that she should be awarded approximately 74% of the value of the home as separate property, as she had contributed that amount to the down payment and pay-off amounts with money that could be traced to gifts from her parents to her. The trial court agreed with Lynn and awarded her all payments she had made as her separate property and split only the remaining equity. On review, we hold that the trial court erred in failing to split the equity of the home equally. VACATED AND REMANDED. Opinion from the Court of Civil Appeals, Division II by BLACKWELL, J.; WISEMAN, P.J., and BARNES, J. (sitting by designation), concur. Sept. 30, 2022
120,297 – Mortgage Clearing Corporation, Plaintiff/Appellee, vs. Derek M. Prentice; spouse of Derek M. Prentice, if married; United States of America ex rel. Internal Revenue Service; The Coves Master Association, Inc.; Occupant l (real name unknown) and Occupant 2 (real name unknown), Defendants, American Nation Bank, Defendant/Appellee, MBROS Real Estate, LLC, Intervenor/Appellant. Appeal from the District Court of Delaware County, Hon. Barry V. Denney, Trial Judge. MBROS Real Estate, LLC, appeals the trial court’s grant of summary judgment in favor of American Nation Bank’s motion for summary judgment on its foreclosure claim, and the trial court’s denial of MBROS’s cross-motion for summary judgment on a theory of equitable subrogation. The trial court determined that equitable subrogation was unavailable because the original lender, Mortgage Clearing Corporation (MCC) did not violate any legal duty to MBROS. After review, we affirm the trial court. AFFIRMED. Opinion from Court of Civil Appeals, Division II, by BLACKWELL, J.; WISEMAN, P.J., and BARNES, J. (sitting by designation), concur. Sept. 30, 2022
Division III
119,373 – P&K Properties, LLC, and Brushy Mountain Health and WellNess, LLC, Plaintiffs/Appellees, v. Burl Berry, individually, and Right on Time Grow Co. LLC, Defendants/Appellants. Appeal from the District Court of Muskogee County, Oklahoma. Honorable Timothy King, Trial Judge. Defendants/Appellants, Burl Berry and Right on Time Grow Co., LLC (“ROTG”), seek review of an interlocutory Order appealable by right that was filed on January 24, 2021 . ROTG is licensed to grow medical marijuana and entered into two agreements with Plaintiffs/Appellees, P&K Properties, LLC, and Brushy Mountain Health and Wellness, LLC (“P&K”, “Brushy Mountain” or “Plaintiffs”). The first agreement was a lease agreement between ROTG and P&K. P&K provided a commercial building which would allow ROTG to grow medical marijuana. The second agreement was a marketing agreement between ROTG and Brushy Mountain. That agreement required ROTG to allow Brushy Mountain to market and sell all medical marijuana produced by ROTG in the State of Oklahoma. Plaintiffs subsequently sued ROTG for failure to pay rent in accordance with the lease agreement and failure to comply with the second agreement that required ROTG to allow Brushy Mountain to market and sell all medical marijuana it produced. Plaintiffs obtained a Temporary Restraining Order (“TRO”), which had the effect of allowing Plaintiffs to seize control of the leased premises. The TRO essentially precluded ROTG from taking any action at the leased premises without authorization by Plaintiffs or the trial court. A hearing was held during January, 2021, and at that time the primary issue was whether the TRO would be converted into a temporary injunction. The trial court entered an Order which included injunctive relief, but which did not require a bond. ROTG has appealed that Order. We find that the Order entered by the trial court violated 12 O.S. § 1392, since no bond was ordered. In addition, we find that Plaintiffs did not demonstrate to the trial court that they would be irreparably harmed in the absence of injunctive relief. Accordingly, the Order of January 24, 2021, is vacated. Opinion by PRINCE, P.J.; MITCHELL, V.C.J., and SWINTON, J., concur. Sept. 29, 2022
120,127 – William and Sandra Geiser, husband and wife, Kenneth N. Phillips, Trustee of the Kenneth N. Phillips Trust, and Carrie J. Good, individually and on behalf of property owners of Eastridge Estates in Lincoln County, Oklahoma , Plaintiffs/Appellees, v. Calvin Wesley Arwood and Debra Irene Arwood, husband and wife, Defendants/Appellants. Appeal from the District Court of Lincoln County, Oklahoma. Honorable Cindy Ferrell Ashwood, Trial Judge. Defendants/Appellants Calvin Wesley Arwood and Debra Irene Arwood appeal from an order granting an injunction in favor of Plaintiffs/Appellees William and Sandra Geiser, husband and wife, Kenneth N. Phillips, Trustee of the Kenneth H. Phillips Trust, and Carrie J. Good, individually, regarding the enforcement of restrictive covenants in Eastridge Estates, a subdivision in Lincoln County. Defendants argue that the trial court improperly enforced restrictive covenants where the plat had been previously vacated. Finding no reversible error, we affirm. Opinion by SWINTON, J.; MITCHELL, V.C.J., and Prince, P.J., concur. Sept. 29, 2022
120,224 – Multiple Trust Injury Fund, Petitioner, v. James Farley and The Workers’ Compensation Court of Existing Claims, Respondent. Proceeding to review an order of a three-judge panel of the Workers’ Compensation Court of Existing Claims. Petitioner Multiple Injury Trust Fund (MITF) seeks review of an order from a three‑judge panel of the Workers’ Compensation Court of Existing Claims which affirmed the trial court’s order finding that Respondent James Farley is permanently and totally disabled (PTD) and awarding compensation. The panel’s order is not against the clear weight of the evidence or contrary to law and we sustain. Opinion by SWINTON, J.; MITCHELL, V.C.J., and Prince, P.J., concur. Sept. 29, 2022
120,445 – Ray G. McGlocklin, Petitioner, vs. Jernigan’s Sporting Goods Inc., Coverage No Verified and The Workers’ Compensation Commission, Respondents. Proceeding to review an order of a three-judge panel of the Workers’ Compensation Court of Existing Claims. Ray G. McGlocklin seeks review of an Order Affirming Decision of Administrative Law Judge entered by the Oklahoma Workers’ Compensation Commission En Banc that was sitting en banc, onfiled on May 20, 2022. McGlockin has raised several challenges to Commission’s decision, each revolving around whether McGlocklin was properly excluded from the definition of an “employee” under Title 85A, under the agricultural exemption found at 85A O.S. § 2(18)(b)(2). The legal issue presented here involves how to interpret and apply § 2(18)(b)(2), and the exclusion of employees in agricultural, ranching or horticultural. We hold that the Commission properly applied the agricultural exemption and AFFIRM its decision in this case. Opinion by PRINCE, P.J.; MITCHELL, V.C.J., and SWINTON, J., concur. Sept. 29, 2022
Division IV
119,914 – In the Matter of: L.S., D.S., and P.S., Alleged Deprived Children. Barbara Shaw, Appellant, v. State of Oklahoma, Appellee. Appeal from the District Court of Oklahoma County, Hon. Thomas C. Riesen, Trial Judge. In this termination of parental rights proceeding, Barbara Shaw (Mother) appeals from an order of the district court terminating her parental rights to her minor children. We conclude the order terminating Mother’s parental rights was based on clear and convincing evidence that she failed to correct the conditions set forth in 10A O.S. 2021 § 1-4-904(B)(14) and that termination of her rights is in the children’s best interest. Further, we conclude the trial court did not abuse its discretion in denying Mother’s motion for a continuance and in admitting certain testimony and evidence at trial. We further conclude Mother’s due process right to a fair trial was not denied. Consequently, we affirm the order of termination of parental rights. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by BARNES, P.J.; FISCHER, C.J., and HIXON, J., concur. Sept. 27, 2022