Dispositions Other Than By Published Opinion | Sept. 21, 2022

Oklahoma Court of Civil Appeals

Division II

120,107 – American Advisors Group, Plaintiff/Appellee, vs. Lisa Michelle Jackson-Rouse, Defendant/Appellant. Appeal from an Order of the District Court of Oklahoma County, Hon. Cindy Truong, Trial Judge. The defendant, Lisa Michelle Jackson-Rouse, appeals the trial court’s grant of summary judgment in favor of the plaintiff, American Advisor’s Group (American), in a foreclosure suit, on both the plaintiff’s claim for foreclosure and Jackson-Rouse’s counterclaims. Jackson-Rouse also appeals the denial of her motion to reconsider both judgments. On appeal, we find that Jackson-Rouse had raised genuine disputes of material fact that should have precluded summary judgment on any claims. Accordingly, we vacate the trial court’s judgment and remand for further proceedings. VACATED AND REMANDED. Opinion from the Court of Civil Appeals, Division II, by BLACKWELL, J.; WISEMAN, P.J., concurs, and HIXON, J. (sitting by designation), concurs specially. Sept. 16, 2022

119,649 – Fleske Holding Company, LLC, an Oklahoma limited liability company, Plaintiff/Appellee, vs. City of Norman, Oklahoma, a municipal corporation, Defendant/Appellant.  Appeal from an order of the District Court of Cleveland County, Hon. Michael Tupper, Trial Judge.  The City of Norman appeals a trial court order enjoining it from enforcing its land use plan, zoning regulations, or development regulations as to a certain parcel of land.  The trial court found that the Norman City Council’s decision to deny Fleske Holding Company, LLC’s applications to amend the parcel’s land use and zoning classifications was not “fairly debatable.”  We are asked to review whether this conclusion is against the clear weight of the evidence.  Although City asserts multiple issues on appeal, we find one is dispositive:  whether it was error to determine the “look-back period” required a “look back” to 1984-85 when the subject property was originally zoned and replatted in determining if there had been a change in circumstances as required by Norman 2025.  After review, we conclude City’s argument is convincing and reverse the trial court’s decision because using the 1984-85 “look-back period,” a time well before Norman 2025 was adopted in 2004, was error.  We further reject Fleske’s quest to invalidate Norman 2025 as a whole.  Based on these conclusions, the trial court’s decision must be reversed.  REVERSED.  Opinion from the Court of Civil Appeals, Division II, by WISEMAN, P.J.; FISCHER, C.J. (sitting by designation), and BARNES, J. (sitting by designation), concur. Sept. 14, 2022

Division III

119,863 – Gwen Hummingbird and Don Hummingbird, Plaintiffs/Counter-Defendants/Appellants, vs. Wesley J. Factor and Bobbie DeBrosse, Defendants/Counter-Claimants/Appellees. Appeal from the District Court of Rogers County, Oklahoma.  Honorable Sheila A. Condren, Trial Judge. Plaintiffs/Counter‑Defendants/Appellants Gwen Hummingbird and Don Hummingbird (collectively, Sellers) appeal from judgment in favor of Defendants/Counter‑Claimants/Appellees Wesley J. Factor and Bobbie DeBrosse (collectively, Buyers). Sellers alleged Buyers owed unpaid rent on a lease, while Buyers asserted they had fully performed under a lease to own agreement and were entitled to a deed conveying the property from Sellers to them.  Following a bench trial, the court entered judgment granting Buyers specific performance of the contract for the sale of real property. The judgment is not clearly against the weight of the evidence or contrary to law.  The trial court’s findings of fact and conclusions of law adequately explain the decision and we therefore affirm by summary opinion under Oklahoma Supreme Court Rule 1.202(d). Opinion by  SWINTON, J.; MITCHELL, V.C.J., and PRINCE, P.J., concur. Sept. 19, 2022

120,006 – Biantrav Contractor, LLC, an Oklahoma Limited Liability Company, a/k/a, Biantrav Corporation, Plaintiff/Appellee, vs. Sofidel America Corp., a Florida for Profit business corporation, Defendant/Appellee, SMI USA LLC, an Oklahoma Limited Liability Company, Defendant, Indexa USA, Inc., a New York for profit corporation, a/k/a Indexa, a New York for profit corporation, Defendant/Appellant, Indexa USA, Inc., a New York for Profit corporation, a/k/a Indexa, a New York for profit corporation, Third Party Plaintiff, vs. Armando Bianchini, an individual, and Vincenzo Travascio, an individual, Third Party Defendants. Appeal from the District Court of Rogers County, Oklahoma.  Honorable Sheila A. Condren, Trial Judge. This is the second appeal arising out of a case initiated by Plaintiff/Appellee, Biantrav Contractor, LLC (“Biantrav”).  Biantrav is a subcontractor involved with the construction of a paper mill.  Biantrav claimed that their invoices were not paid in the correct amounts and, based on that claim, placed a material and mechanic’s lien (“M&M lien”), upon property owned by Defendant/Appellee, Sofidel America Corp. (“Sofidel”).   Biantrav then sued for foreclosure of the M&M lien, unjust enrichment, breach of contract, and intentional interference with contractual relations.  Defendant/Appellant, Indexa USA, Inc. (“Indexa”), was required by contract to keep property owned by Sofidel free of liens so, after the lawsuit was filed by Biantrav, Indexa posted a bond in the amount of $3,047,180.22, to release Biantrav’s lien on Sofidel’s property.  Sofidel and Indexa filed Motions for Summary Judgment that were sustained by the trial court.  Biantrav appealed in Companion Case #119,978.   After the trial court sustained the Motions for Summary Judgment, Indexa filed a motion to have the cash bond released.  Biantrav objected and requested a stay pending appeal.  The trial court granted the stay and denied Indexa’s request to have the cash bond released.  Indexa commenced this appeal and Sofidel filed a Motion to Dismiss, claiming that an order granting a stay is not an independently appealable order.  Indexa responded to the Motion to Dismiss and sought sanctions against Sofidel.  After a review of the record and applicable law, we find that this appeal should not be dismissed, that Indexa’s request for sanctions should be denied, and that the trial court had the authority to issue a stay and not return the cash bond to Indexa as long as the appeal in Companion Case #119,978 is still pending.  The Order of the trial court staying the enforcement of the orders granting summary judgment and denying Indexa’s motion to have the cash bond released is AFFIRMED. Opinion by PRINCE, P.J.; MITCHELL, V.C.J., and  SWINTON, J., concur. Sept. 19, 2022

120,128 – In the Matter of JW1, Child Adjudicated to be Deprived. Markwen Johnson, Natural Father, Respondent/Appellant, vs. The State of Oklahoma, Petitioner/Appellee. Appeal from the District Court of Tulsa County, Oklahoma.  Honorable Theresa Dreiling, Trial Judge. Appellant, Markwen Johnson, appeals the trial court’s order terminating his parental rights as to the minor child who is identified as “JW1”.  Johnson argues that the trial court violated his due process rights, that the State failed to make reasonable efforts, and that the State failed to meet the requisite burdens required to establish termination as in the best interests of the child.  We find the State did not violate Father’s due process rights, that the State clearly and convincingly made reasonable efforts, and that the State met all requisite burdens of proof.  We further find that termination of Father’s parental rights was in the best interests of the child. Thus, we AFFIRM the trial court’s ruling. Opinion by PRINCE, P.J.; MITCHELL, V.C.J., and  SWINTON, J., concur. Sept. 19, 2022

120,138 – John Richard Merhib, Petitioner, vs. BJ Services, LLC, Tri-State Insurance Company of Minnesota, and The Workers’ Compensation Commission, Respondents. Proceeding to review an order of The Workers’ Compensation Commission. Petitioner John Richard Merhib (Claimant) appeals from an order of the Workers’ Compensation Commission (Commission), affirming the decision of its Administrative Law Judge (ALJ).  The ALJ found injuries Claimant sustained in a car accident on his way to lunch were not compensable because Claimant was on a purely personal mission when the accident occurred.  Claimant’s sole proposition of error on appeal is that the ALJ and Commission erred as a matter of law by failing to discern the difference between a mission that is “purely personal” and a mission for an employee’s “personal comfort.”  The Commission’s finding – that Claimant was not in the course and scope of employment when his injuries were sustained – was not affected by error of law or “[c]learly erroneous in view of the reliable, material, probative and substantial competent evidence[.]”  Accordingly, we sustain. Opinion by MITCHELL, V.C.J.; PRINCE, P.J., and SWINTON, J., concur. Sept. 19, 2022

120,236 – In the Matter of I.H-K.L., Alleged Deprived Child. Kester Jordan Mathenia, Appellant, vs. State of Oklahoma, Appellee. Appeal from the District Court of Oklahoma County, Oklahoma.  Honorable Lydia Y. Green, Trial Judge. Appellant Kester Jordan Mathenia is the biological father (Father) of I. H.-K. L. (Child) born January 21, 2020.  On July 30, 2020, Child was taken into emergency custody after Child’s mother attacked Father in Child’s presence.  On January 22, 2021, following allegations of domestic violence between Child’s parents, Child was adjudicated deprived as to Father who stipulated to the deprived allegations.  The court imposed an individualized service plan by consent, requiring Father to correct the conditions that led to Child’s removal.  On Sept. 20, 2021, a Petition to Terminate Father’s Parental Rights was filed due to his failure to correct the conditions leading to the deprived adjudication.  Jury trial was held, and on January 28, 2022, the jury unanimously found, by clear and convincing evidence, that, despite being given more than three months, none of the conditions had been corrected, and Father’s parental rights should be terminated pursuant to10A O.S. Supp. 2021 §1-4-904(B)(5) and that termination was in the best interests of Child.  We find clear and convincing evidence in the record that Father failed to correct the conditions that he stipulated to.  The judgment terminating Father’s parental right is AFFIRMED. Opinion by MITCHELL, V.C.J.; PRINCE, P.J., and SWINTON, J., concur. Sept. 19, 2022

120,477 – Lazy S. Ranch Properties, LLC, Plaintiff/Appellant, vs. BKEP Pipeline, LLC, Defendant/Third-Party Plaintiff/Appellee, vs. Cedar Falls Ranch, LLC, Defendant.  Appeal from the District Court of Carter County, Oklahoma.  Honorable Dennis Morris, Trial Judge. Third-Party Defendant Cedar Falls, Ranch, LLC (Cedar Falls) granted an oil and natural gas pipeline easement across 6,156 acres of its real property to Defendant/Third-Party Plaintiff/Appellee BKEP Pipeline, LLC (BKEP).  The easement, filed of record in Carter County, required “substantial completion” of the pipeline within one hundred eighty days of commencement of construction.  Pursuant to the easement, “substantial completion” of the project included crushing any unearthed rock to a diameter of three-fourths of an inch or less.  On February 4, 2013, construction commenced.  On August 3, 2013 (the end of the requisite 180-day period), the unearthed rock remained uncrushed.  Cedar Falls and BKEP entered into a settlement agreement whereby Cedar Falls released BKEP from its remaining obligations, including surface remediation and crushing the unearthed rock, in exchange for $187,500.  Plaintiff/Appellant Lazy S Ranch Properties, LLC (Lazy S) purchased the land from Cedar Falls, including the covenants running with it, for $9,401,341.60.  On August 20, 2018, Lazy S filed a lawsuit against BKEP seeking damages related to the uncrushed unearthed rock.  BKEP filed a motion for summary judgment asserting that the settlement was an accord and satisfaction which was binding on Lazy S and its successors and assigns because Lazy S had actual notice of the pipeline easement and constructive notice of the settlement agreement, and that Lazy S failed to file its lawsuit prior to the expiration of the five-year statute of limitations applicable to written contracts.  The trial court granted BKEP’s motion, and Lazy S appealed.  After de novo review, we AFFIRM the trial court’s grant of summary judgment to BKEP on the ground that Lazy S’s claim is time-barred by the statute of limitations. Opinion by MITCHELL, V.C.J.; PRINCE, P.J., and SWINTON, J., concur. Sept. 19, 2022

Division IV

119,448 – Venus Atwell and Howard Atwell, Plaintiffs/Appellants, vs. David Stanley Norman Chevrolet, LLC and Bank of the West, Defendants/Appellees.  Appeal from Order of the District Court of Cleveland County, Hon. Thad Balkman, Trial Judge.  Appellants Venus and Howard Atwell (the Atwells) appeal the district court’s order dismissing their claims against Appellee Bank of the West in the underlying consumer protection action and their attempt to rescind the purchase contract with Appellee David Stanley Norman Chevrolet, LLC.  We find that the order appealed, the April 22, 2019 order denying their motion to vacate the district court’s order dismissing Bank of the West, is not a final, appealable order and this Court is without jurisdiction for review.  Although attached to their amended petition in error, the appellants are not appealing the order compelling arbitration, which is the only appealable order at this stage of their case.  Consequently, their appeal is premature and must be dismissed pursuant to 12 O.S.2011 § 990A(F).  APPEAL DISMISSED.  Opinion from the Court of Civil Appeals, Division IV, by FISCHER, C.J., BARNES, P.J., and HIXON, J., concur. Sept. 14, 2022