Oklahoma Court of Civil Appeals | 2023
Decisions
IN RE THE MATTER OF BECK
2023 OK CIV APP 47
Case Number: 120941
Decided: 03/09/2023
Mandate Issued: 12/06/2023
¶1 This case arises from an Order of the trial court that granted summary judgment following the conclusion of a non-jury determination of heirs proceeding. Based on an Acknowledgment of Paternity executed in 1977 by the decedent, Herman Beck, the trial court determined that Respondent/Appellee, Stephanie Sales, is the daughter and sole heir of Beck. Petitioner/Appellant, Tracy L. Gibbs, appeals the Order. As shown herein, we disagree with the trial court on the limited issues of standing and the statute of limitations. Under 84 O.S. § 215, no statute of limitations bars Gibbs’ challenge to the enforceability of the Acknowledgment of Paternity in this determination of heirs contest. These holdings do not, however, require a reversal in this case. We affirm the trial court’s substantive finding on the issue of the validity of the Acknowledgement of Paternity. The only evidence here as to Beck’s testamentary capacity was the jury verdict of October 14, 1979, in the criminal competency proceeding and the verdict in that case was insufficient to defeat the presumption favoring sanity and the capability to contract. Consequently, the trial court’s finding on that issue was not clearly contrary to the weight of the evidence or to some governing principle of law. We also find that no abuse of discretion occurred in relation to the discovery-related complaints made by Gibbs. Thus, the trial court’s Order of November 18, 2022, is affirmed.
IN THE MATTER OF THE ESTATE OF ATKESON
2023 OK CIV APP 46
Case Number: 119971
Decided: 10/27/2023
Mandate Issued: 12/06/2023
¶1 Criswell Funeral Home appeals the district court’s denial of its motion requesting a finding that Brennen James Atkeson was estranged from his wife Khaliliah Smith-Atkeson at the time of his death. The pivotal issue is whether the district court correctly denied Criswell’s motion based on its conclusion that Criswell lacked standing pursuant to 21 O.S.2011 §§ 1151a(3) and 1158. After review, we find the decision was correct and we affirm.1
GET BAK’D OKC v. RELEAF LABS
2023 OK CIV APP 45
Case Number: 119859
Decided: 10/26/2023
Mandate Issued: 12/06/2023
¶1 Get Bak’d OKC, LLC, appeals the denial of its motion for a preliminary injunction in this trademark infringement and deceptive trade practices action that it brought against Releaf Labs, LLC, and one of Releaf’s owners, Michael Girocco. See 12 O.S.2021 § 952(b)(2), and Okla. Sup. Ct. R. 1.60(c), 12 O.S.2021, ch. 15, app. 1 (regarding Interlocutory Orders Appealable by Right). Because Get Bak’d failed to establish all the elements necessary for the issuance of a preliminary injunction, we affirm.
LAST CHANCE MINERALS v. BP AMERICA PRODUCTION CO.
2023 OK CIV APP 44
Case Number: 119379
Decided: 08/25/2023
Mandate Issued: 11/16/2023
¶1 Intervening plaintiff, Last Chance Minerals, Inc., (LCM) appeals a district court order finding the undisputed evidence showed LCM’s claims were not tolled and were barred by the applicable statute of limitations and, therefore, granting summary judgment in favor of defendant, BP America Production Company f/k/a/ Amoco Production Company (Amoco) and against LCM.1 The appeal has been assigned to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36, 12 O.S.2021, ch. 15, app. 1.
STATE ex rel. DOAK v. BMSI HOLDINGS
2023 OK CIV APP 43
Case Number: 119910
Decided: 02/10/2023
Mandate Issued: 11/16/2023
¶1 State of Oklahoma ex rel. John Doak, Insurance Commissioner, as Receiver for Eagle Insurance Agency Holdings, LLC, (Receiver) appeals a Final Judgment of September 25, 2021, incorporating interlocutory orders dismissing claims against Defendants or granting summary judgment in favor thereof, and resolving all remaining claims asserted by Receiver in the underlying proceeding. The trial court’s judgment memorializes (1) a March 1, 2021 Order dismissing Receiver’s claims against the Individual Defendants1 based on the statute of limitations and failure to state a claim upon which relief may be granted; (2) an August 13, 2021 Order granting Defendant Rodney Sargent’s Motion for Summary Judgment based on run of the statute of limitations and failure to state a claim; and (3) its finding that Receiver’s claims against the non-appearing corporate Defendants2 were likewise barred by the statute of limitations on the same basis as the Individual Defendants.
¶2 On review of applicable law, the parties’ briefing and the record on appeal, we affirm based on the statute of limitations on slightly different grounds as identified by the trial court. Receiver argues that its claims in this 2016 action were timely under a four-year period provided by the Uniform Insurers Liquidation Act (UILA), 36 O.S.2011, § 1924.1(A)(2). However, to be timely, the one-year savings statute, 12 O.S.2011, § 100, must apply. Receiver voluntarily dismissed a 2015 action against Defendants in 2017, after this action was filed in 2016, accompanied by a unilateral declaration that the 2015 action was “deemed dismissed” for failure to serve process within 180 days. The Court holds this unilateral declaration is ineffective to deem the 2015 action dismissed prior to the filing of the 2016 action and that the savings statute therefore does not apply. Receiver’s 2016 suit is untimely, and we affirm the trial court’s Order of September 15, 2021 on that basis.
HITCH ENTERPRISES v. KEY PRODUCTION COMPANY
2023 OK CIV APP 42
Case Number: 119052
Decided: 12/30/2022
Mandate Issued: 11/16/2023
¶1 Key Production Company, Inc., appeals the district court’s order certifying Hitch Enterprises, Inc.’s case as a class action in this natural gas royalty dispute. Hitch filed this case on behalf of itself and all similarly situated royalty owners alleging that Key had breached the implied covenant to market natural gas extracted from wells in which Class members own a royalty interest. Hitch alleges that Key wrongfully deducted certain processing costs from the proceeds Key received for selling the gas before paying the royalty owners their proportionate share of the sale proceeds. After class discovery and a hearing on Hitch’s motion to certify the case as a class action, the district court found that Hitch had satisfied the statutory elements required by 12 O.S.2021 § 2023 and granted Hitch’s motion. We affirm.
DALTON v. DALTON
2023 OK CIV APP 41
Case Number: 120388
Decided: 02/02/2023
Mandate Issued: 11/02/2023
¶1 Respondent/Appellant, Bart Dalton, seeks review of an Order that denied his Motion to Clarify Status. Mr. Dalton and Petitioner/Appellee, Carol Dalton, were legally separated by an Order of Separate Maintenance (“OSM”) that was entered in Rogers County, Oklahoma, on December 18, 2006. Although they were legally separated, Mr. and Ms. Dalton continued to reside together, or in other words, they reconciled for a period of approximately eighteen months after entry of the OSM. During 2008, the Parties relocated to Nacogdoches County, Texas, and a divorce action was commenced. The Texas court entered a Final Decree of Divorce that incorporated the OSM as a part of the judgment. Mr. Dalton subsequently filed a Motion for Declaratory Judgment and also a Motion to Clarify Status in Rogers County, Oklahoma. Mr. Dalton asserted that the OSM was void as a matter of law as a result of the Parties’ eighteen month reconciliation. The trial court denied Mr. Dalton’s Motion to Clarify. The trial court determined that it had no jurisdiction to grant a declaratory judgment or to clarify the OSM. The Order also included a specific finding that Texas has jurisdiction over the OSM, that Oklahoma does not have jurisdiction to modify the OSM, that the OSM was either continued or revived by the Texas court when it was incorporated into the Texas Divorce Decree, and that the reconciliation of the Parties did not void the OSM. We find that the trial court did not commit error when it denied Mr. Dalton’s motions and, therefore, affirm the “Order-Motion to Clarify Status”.
HUBERT v. HUBERT
2023 OK CIV APP 40
Case Number: 120135
Decided: 02/02/2023
Mandate Issued: 10/26/2023
¶1 Cory Drew Hubert (Father) disputes the amount of attorney fees the trial court awarded him in this divorce proceeding pursuant to four separate statutes authorizing such awards under the circumstances presented. Cora Ann Hubert (Mother) was ordered to pay him attorney fees, but the trial court reduced the fees after considering the parties’ respective means and property. Father appeals this order and the trial court’s denial of his motion to reconsider that ruling. The question here is whether the trial court erred as a matter of law in reducing the amount of attorney fees awarded based on the parties’ respective means and property. After review, we conclude it was error to apply this additional factor in setting the award and therefore an abuse of discretion to deny Father’s motion to reconsider. We reverse and remand with directions to enter an order consistent with this Opinion.
TMX CONSTRUCTION v. REVOLUTION PIPELINE
2023 OK CIV APP 39
Case Number: 119812
Decided: 12/07/2022
Mandate Issued: 10/26/2023
¶1 Defendant Revolution Pipeline, LLC, appeals the trial court’s summary judgment granted to Plaintiff TMX Construction. We consider this appeal according to Supreme Court Rule 1.36, 12 O.S.2021, ch. 15, app. 1, without appellate briefing. After review, we reverse the decision of the trial court and remand for further proceedings.
BERRY v. BUGGS
2023 OK CIV APP 38
Case Number: 120758
Decided: 09/22/2023
Mandate Issued: 10/19/2023
¶1 The Petitioner/Appellant, Carolyn Berry (“Grandmother”), appeals the denial of a Motion to Reconsider she filed after the trial court denied her request for grandparent visitation rights. Grandmother is the paternal grandmother of K.A.G.B. (“Child”). The Child’s father, Anthony Welch (“Father”), was murdered in May, 2019. Following Father’s death, Appellee, Ja’mesha Buggs (“Mother”), refused Grandmother’s visitation with the child. Grandmother filed a Petition seeking grandparent visitation rights and, after a two-day trial, the request for visitation rights was denied by the trial court. Grandmother asserts on appeal that the holding of In the Matter of H.E.W., 2004 OK CIV APP 19, 90 P.3d 1007, improperly heightened the standard for grandparent visitation and that the trial court committed error when it ruled that Grandmother failed to demonstrate that the minor child would suffer harm if visitation was not ordered. We find that the Order Denying Petitioner’s Motion to Reconsider did not constitute error. Therefore, the Order is AFFIRMED.
IN THE MATTER OF THE GRANDPARENTAL VISITATION RIGHTS TO E.R.S.
2023 OK CIV APP 37
Case Number: 120249
Decided: 09/21/2023
Mandate Issued: 10/19/2023
¶1 Matthew and Vickie Smith (Grandparents, or Grandfather and Grandmother) appeal a journal entry of judgment denying their Petition for Grandparental Visitation Rights, entered February 1, 2022, to which the custodial parent, Ashley Durham (Mother), objected.1 Grandparents assert they met their burden under 43 O.S.2021, § 109.4, by demonstrating their own child, Charles Smith (Smith), was unfit. Alternatively, they asserted they rebutted the presumption Mother was acting in the minor child’s best interests by denying visitation. On review of the record, the briefs and the applicable law, we find the trial court did not err in determining Grandparents were required to show Mother was unfit and did not abuse its discretion by determining Grandparents had failed to meet their burden by demonstrating E.R.S. would suffer harm or potential harm without grandparental visitation. We affirm the trial court’s order of February 1, 2022, denying Grandparents’ Petition.
WISHON v. HAMMOND
2023 OK CIV APP 36
Case Number: 117997
Decided: 10/26/2022
Mandate Issued: 10/19/2023
¶1 Trela Wishon appeals the judgment in favor of James and Rita Hammond (collectively, the Hammonds). Wishon and her dog were attacked and injured by a dog owned by co-defendant Forest Hammond. Wishon sued the Hammonds alleging that, as owners of the real property where Forest Hammond lived and kept the dog, they were liable for harboring a dangerous animal in violation of state and municipal law. Wishon further alleged that the Hammonds were negligent as owners of the property where the dangerous animal was maintained by failing to require that the dog be contained in a safe manner. The Hammonds filed a motion for summary judgment arguing that they did not violate state and municipal law because they did not own the dog. They further argued they were not negligent because they did not know that Forest Hammond kept the animal that attacked Wishon on their property. Wishon’s appeal of the judgment granting the Hammonds’ motion has been assigned to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36, 12 O.S. Supp. 2013, ch. 15, app. 1, and the matter stands submitted without appellate briefing.
¶2 The issue in this case is whether a landlord has a duty to those who are not on the property but are injured as the result of activities conducted on the property owner’s premises by the property owner’s tenant. We hold, in the circumstances of this case, that the law imposes that duty on a landlord. Nonetheless, we affirm the judgment in favor of the Hammonds with respect to Wishon’s claim that the Hammonds violated state and municipal law. They were not owners of the dog that attacked Wishon for purposes of those laws. However, we reverse the judgment with respect to Wishon’s common law negligence claim that the Hammonds are liable for her injuries as owners of the property where the dog was kept. Disputed issues of fact concerning whether the Hammonds breached their duty to Wishon preclude summary judgment as to this theory of liability.
WEGMILLER v. UNITED METHODIST HOME OF ENID
2023 OK CIV APP 35
Case Number: 120553
Decided: 09/30/2022
Mandate Issued: 10/12/2023
¶1 Defendants/Appellants United Methodist Home of Enid, Inc., and United Methodist Continuum of Care Community of Enid d/b/a The Commons appeal from an order granting partial summary judgment in favor of Plaintiff/Appellee Samantha Wegmilller, individually and as personal representative of the Estate of Scott A. Wegmiller, deceased and denying Defendants’ motion for summary judgment. We affirm.
MONEXCO, LLC v. CORPORATION COMMISSION OF OKLAHOMA
2023 OK CIV APP 34
Case Number: 119361
Decided: 12/28/2022
Mandate Issued: 10/12/2023
¶1 Monexco filed a complaint with the Oklahoma Corporation Commission (OCC) pursuant to the Production and Transportation Act (of 1913) (PTA), 52 O.S.2011, § 24.1 et seq., asserting the fees and/or terms and conditions of a contract with ELCHenergy, LLC, a subsidiary of Badger Midstream, L.P. (Badger), were unjust, unfair, unreasonable, and unduly discriminatory. Although the OCC agreed the fees and terms were unfair, unjust, and inequitable, it denied Monexco’s request that the final fees and terms be applied retroactively. Monexco appeals that portion of OCC Order No. 716416 denying retroactive application.
¶2 Based on our review of the record and applicable law, we reverse that portion of Order No. 716416 which declined to apply final fees and terms from the time when Monexco filed its Complaint forward, based on a finding the OCC lacked statutory authority to abrogate daily unilateral contracts between Monexco and Badger pursuant to 52 O.S.2011, § 24.5(A). Specifically, we find no contract was in force upon the filing of the Complaint. The OCC had statutory authority to grant the requested relief from that point forward. The matter is remanded to allow the OCC to determine whether any adjustment to fees paid between the Complaint and its order setting fees is required by section 24.5(F).
EXTERRAN HOLDINGS v. ABONZA
2023 OK CIV APP 33
Case Number: 120569
Decided: 08/30/2023
Mandate Issued: 09/28/2023
¶1 Exterran Holdings, Inc. and Zurich American Insurance Co. (collectively, Employer) seek review of an order issued by the Workers’ Compensation Commission en banc (Commission), reversing and remanding an Administrative Law Judge (ALJ) decision and finding J. Asuncion (Soto) Abonza (Claimant) sustained a compensable occupational disease (silicosis) and a compensable cumulative trauma injury in the course and scope of his employment.
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¶57 Finding no error, we sustain the Commission’s Order Vacating and Remanding the Decision of the Administrative Law Judge.
ROBERTS v. BUSH
2023 OK CIV APP 32
Case Number: 121284
Decided: 08/10/2023
Mandate Issued: 09/21/2023
¶1 Plaintiff/Appellant, Sean Roberts, was a candidate for Oklahoma Labor Commissioner during the 2022 election cycle. Defendant/Appellee, Carol Bush held a press conference on August 8, 2022, during which she asserted that “[a] judge found, ‘the court is fearful that the minor children will suffer immediate and irreparable injury,’ in a very strong statement against Roberts. This is based upon sworn affidavits by his previous wife . . . .” Bush further concluded that this made him “grossly unfit for higher office, or his current office for that matter.” Eight days later, on August 16, Mr. Roberts filed the instant action and sought relief under a claim of slander per se. Ms. Bush filed a Motion to Dismiss on January 20, 2023, pursuant to the Oklahoma Citizens Participation Act. See 12 O.S. § 1430, et seq. A hearing was held on April 6, 2023, and the Motion to Dismiss was granted by the trial court on April 17, 2023. Mr. Roberts has appealed that order. After reviewing the record, we find that Mr. Roberts was deficient in his duty to establish a prima facie case for slander and that the trial court did not commit error. We, therefore, affirm.
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¶19 We, therefore, find that Mr. Roberts did not satisfy his burden under 12 O.S. § 1434 to establish “by clear and specific evidence a prima facie case for each essential element of the claim in question.”5 Accordingly, the Order Granting Motion to Dismiss is AFFIRMED.
THE MATTER OF THE GUARDIANSHIP OF L.R.M.
2023 OK CIV APP 31
Case Number: 120831
Decided: 08/29/2023
Mandate Issued: 09/21/2023
¶1 David Richardson and Donna Richardson (collectively “Grandparents”), co-guardians of R.A.M. and emergency co-guardians of L.R.M., appeal the trial court’s October 6, 2022 order denying their motion to disqualify Mary Clark as the attorney for their daughter, Cierra Middleton (“Mother”). The crux of the issue is whether the evidence presented at the hearing showed Clark lacked confidential information material to the present case, despite working in a law firm with Eric Jones, a deceased lawyer who represented Grandparents against Mother in the initial guardianship proceedings, and despite being responsible for disposing of his files after his death. Based on our careful review of the record and applicable law, we affirm the trial court’s order.
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¶18 Accordingly, based on the evidence presented at the hearing, we find the trial court did not commit clear error by not requiring disqualification, and therefore, we affirm the court’s order filed October 6, 2022.
HARTLESS v. CLINE
2023 OK CIV APP 30
Case Number: 120300
Decided: 08/29/2023
Mandate Issued: 09/21/2023
¶1 Plaintiff Valerie Hartless appeals the denial of a Motion for New Trial, following judgment in favor of Defendant Vivian Cline on Hartless’ claim for breach of a contract for deed and action to quiet title to real property, and quieting title in favor of Cline. Hartless paid $15,044 of the $18,000 due under the contract for deed. She claimed that Cline had refused to accept the remaining $2,956 owed on the property and sued for breach of contract and to quiet title to the property in her favor. Cline counterclaimed, asserting that Hartless failed to make the remaining payments under the contract and that Cline was entitled to retain all sums paid by Hartless as liquidated damages under the contract. The trial court determined the contract for deed was a constructive mortgage that was unenforceable because only Cline had signed that agreement. The court granted judgment in favor of Cline on Hartless’ claim for breach of contract, quieted title in Cline and allowed Cline to retain the $15,044 as liquidated damages.
¶2 Hartless moved for new trial, asserting that the trial court had erred in determining the contract for deed was unenforceable; by allowing Cline to retain her payments on the property as liquidated damages; and by refusing to allow Hartless to redeem the property. We find the trial court erred as a matter of law in its determination that the contract for deed was unenforceable by Hartless, and therefore abused its discretion in denying Hartless’ Motion for New Trial. We affirm the trial court’s judgment in Cline’s favor on Hartless’ breach of contract claim. We reverse the judgment entered in favor of Cline on her claims for breach of contract and quiet title and on Hartless’ claim for quiet title and remand with instructions to the trial court to allow Hartless an opportunity to redeem.
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¶27 The Contract is enforceable. It granted equitable title in the real property to Hartless and gave rise to a constructive mortgage in favor of Cline. Hartless defaulted upon her obligation under the Contract. We affirm the trial court’s judgment in favor of Cline on Hartless’ claim for breach of contract. However, we find the trial court abused its discretion in denying Hartless’ Motion for New Trial. We reverse the remainder of the trial court’s judgment on Hartless’ claim for quiet title and Cline’s counterclaims and remand with instructions to the trial court to allow Hartless the opportunity to redeem the property.13
CITY OF TULSA v. FRATERNAL ORDER OF POLICE
2023 OK CIV APP 29
Case Number: 120670
Decided: 08/03/2023
Mandate Issued: 09/13/2023
¶1 Fraternal Order of Police Lodge 93 and Kendra Miller (Miller) (collectively Appellants) appeal the trial court’s August 8, 2022 Order wherein the trial court confirmed the December 4, 2019 arbitration award and vacated the July 7, 2020 clarified award. Based on our review of the record and applicable law, we affirm.
BACKGROUND
¶2 This case has a long history of litigation and appeals. In 2016 another division of this Court set forth the following facts:
In May 2004, Kendra Miller was hired as a police officer for the Tulsa Police Department (TPD). In October 2006, the Federal Bureau of Investigation began investigating Miller in connection with her romantic involvement with Julio Lujan. Lujan, a club manager, was suspected of drug trafficking and later arrested, convicted of weapons possession, and deported. The FBI investigation also included reports that Miller was warning bar owners and/or managers about future bar raids and Fire Marshall inspections. In July 2009, the FBI notified Chief Ronald Palmer of the TPD “that after conducting an extensive joint investigation with the TPD,” it was ending its investigation because the U.S. Attorney’s office determined it did not have enough evidence to prosecute Miller. Based on the information from the FBI, Chief Palmer requested Internal Affairs to begin an investigation.
Miller was notified about the investigation and received notification of a pre-termination hearing to take place on December 10, 2009. On December 11, 2009, Miller was terminated for violating seven TPD Rules and Regulations. Miller filed a grievance contesting her termination pursuant to the Collective Bargaining Agreement between the City of Tulsa and Lodge # 93 Fraternal Order of Police. The arbitration hearing regarding the grievance took place on September 12–15, 2011. In his 35–page “Opinion and Award” issued on July 30, 2012, the arbitrator concluded:
Conclusion
I find that Miller violated Rule and Regulation # 8, Conduct unbecoming an Officer or Police Employee (the Second Reason), and Rule and Regulation # 11, Use of Department Vehicles (the Sixth Reason). I find that there was just cause for discipline. However, since I did not uphold the City with respect to the First, Third, Fourth, Fifth and Seventh Reasons and in light of Miller’s superior performance evaluations, I find that discharge was too severe.
I am not awarding back pay in this case because Miller exercised poor judgment in befriending and associating with Lujan, manager of a bar that was a hotbed of criminal activity. Miller engaged in serious misconduct. Her behavior was unbecoming for a police officer. (Tr. 180, Vol. 2; City Ex. 2, Miller’s Interview on August 11, 2009, p. 3) Her poor judgment resulted in rumors, a citizen’s complaint, a TPD internal investigation, and an FBI investigation.
Award
The discharge is reduced to a 30–day suspension without back pay. The City is directed to reinstate Miller forthwith to her former position as a police officer with full and unbroken seniority rights. The time that Miller was away from work (beyond the 30–day suspension) will be reflected in her personnel records as an excused absence. Miller will not receive any back pay. The City is directed to remove Miller’s termination letter from her file and substitute a 30–day suspension.
Following this Opinion and Award, the City of Tulsa filed a petition to vacate the arbitrator’s decision in the trial court. FOP and Miller filed an “Answer and Counterclaim to Enforce Decision of Arbitrator.” FOP and Miller also filed a motion for partial summary judgment to enforce the arbitration award. The City of Tulsa filed a response to the motion for partial summary judgment and filed a cross-motion for summary judgment. After considering the briefs, supplemental briefs, and oral argument, the trial court denied FOP and Miller’s motion for partial summary judgment and granted the City’s cross-motion for summary judgment. The trial court ordered the arbitration award to be vacated finding:
The Arbitrator’s sole issue, as stated in his award was, “Was Kendra Miller’s employment with the City of Tulsa, Oklahoma, terminated for just cause? If not, what shall be the remedy?” The City of Tulsa stated seven separate reasons for termination in its termination letter dated December 11, 2009. The Arbitrator found just cause for two of the City’s reasons for termination, and specifically found by a clear and convincing standard that Defendant Miller violated Rule # 8, CONDUCT UNBECOMING [AN] OFFICER OR POLICE EMPLOYEE, which was the primary reason for termination. Only if there was not “just cause” was the Arbitrator to fashion a remedy.
The Court finds that the Arbitrator exceeded his authority when he fashioned a remedy after finding just cause.
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¶22 As set forth above, Anderson clearly recognized that his authority was limited to the period of time between termination and the initial arbitration award, i.e., December 11, 2009 to July 30, 2012. Anderson expressed this twice, specifically acknowledging the Oklahoma Supreme Court’s remand order did not authorize him to address whether Miller was entitled to back pay during the pendency of the lawsuit. Nevertheless, Anderson found that through pleadings submitted to him, i.e., Appellants’ request for clarification and the City’s response, the parties waived “the doctrine of functus officio“.
¶23 Anderson was incorrect in finding the parties waived the doctrine of functus officio. The City repeatedly asserted that Andersons’ Remand Award was not ambiguous and did not need clarification. Although the City responded to Appellants’ request for clarification, specifically arguing against it, it was not an implicit waiver of functus officio. Further, Anderson’s authority stems from the issues presented by the parties as well as, in this case, the Remand Order. See Am. Fed’n of State, Cnty., and Mun. Emps., Local 2875, 2019 OK 35, at ¶ 23.
¶24 As Anderson clearly indicated, the issue presented to him on remand was the same as the issue presented at the time of the initial award: “Was Kendra Miller’s employment with the City of Tulsa, Oklahoma terminated for just cause? If not, what shall be the remedy?” Nothing about this issue included anything after the July 30, 2012 award. Accordingly, Anderson exceeded his authority by issuing the Clarified Award because the issue of back pay during the pending litigation was not part of the issue presented to him for arbitration. The trial court’s Order confirming the Remand Award and vacating the Clarified Award is affirmed.
CONCLUSION
¶25 Finding the trial court did not err in granting the City’s motion to confirm the Remand Award, we affirm the trial court’s Order.
¶26 AFFIRMED.
GOREE, P.J., and SWINTON, J., concur.
GOOD v. FARMERS INSURANCE CO.
2023 OK CIV APP 28
Case Number: 120257
Decided: 02/15/2023
Mandate Issued: 09/13/2023
¶1 This appeal arises out of the denial of a Motion to Intervene filed by Cole and Teri Newby. The Newbys filed an action in Oklahoma County against Farmers. They sought permissive intervention as nonparties in this case after the District Court of Oklahoma County denied their request to access information subject to a Protective Order entered by the trial court here (in Payne County). The Newbys claim that the information subject to the Protective Order should be made available to them because the trial court failed to comply with Oklahoma law when it entered the Protective Order. They assert that the information covered by the Protective Order is essential to their cause of action in Oklahoma County. We find that the Newbys had standing to intervene in this action and that the trial court did not comply with the Open Records Act when it allowed records in the court file to be sealed or to be filed by the Parties under seal. Compliance with the Open Records Act is mandatory in all cases. Therefore, the matter must be reversed and remanded to the trial court for further proceedings. However, we find that the trial court had discretion to deny the Newbys’ request for access to all discovery materials that were not filed of record and, further, that the trial court did not abuse its discretion in that regard. Consequently, the decision of the trial court is affirmed, in part, reversed, in part, and remanded.
HOUCK v. OKLAHOMA CITY PUBLIC SCHOOLS
2023 OK CIV APP 27
Case Number: 121080
Decided: 07/11/2023
Mandate Issued: 08/10/2023
¶1 Steven Houck (Claimant) seeks review of a Workers’ Compensation Commission (Commission) Order affirming the decision of the Administrative Law Judge (ALJ). The ALJ denied Claimant’s request for disfigurement benefits, finding that disfigurement benefits are not authorized by 85A O.S.Supp.2014, § 61(B)(1).1 Based on our review of the record and appliable law, we affirm.
STEPHENS v. MIKE’S TRANSPORT
2023 OK CIV APP 26
Case Number: 120922
Decided: 07/12/2023
Mandate Issued: 08/10/2023
¶1 Mike’s Transport, Inc. (MTI) appeals summary judgment granted to Julie Stephens (Stephens), determining that a judgment against non-party L&S Trucking, Inc. (L&S) and its owner, Mike Ledford (Ledford), may be enforced against MTI under an alter ego theory of liability. 1 Stephens asserted MTI was formed for the purpose of avoiding the previous judgment against L&S and Ledford. She presented undisputed evidence that MTI continued to serve L&S customers with L&S’s truck and trailers under L&S’s United Stated Department of Transportation (DOT) and motor carrier numbers and that MTI represented to L&S’s customers that it had merely undergone a name change. MTI asserts the trial court applied the wrong standard for imposing alter ego liability, that there was no evidence MTI was the alter ego of L&S, and/or that a dispute of fact remained on this issue. On review of the record and applicable law, we affirm the trial court’s judgment against MTI entered August 31, 2021.
CAPRON v. SIXSMITH
2023 OK CIV APP 25
Case Number: 121068
Decided: 06/26/2023
Mandate Issued: 07/26/2023
¶1 Plaintiff/Appellant, Steve Capron, appeals from the trial court’s order granting summary judgment to Defendant/Appellee, Douglas John Sixsmith, in Plaintiff’s action for trespass. For the reasons set forth below, we affirm the judgment of the trial court.
¶2 Defendant is a licensed process server. Plaintiff is an attorney. At the time the instant matter arose, both parties were professionally engaged in a Tulsa County civil case. On January 27, 2021, Defendant drove his vehicle through an open gate into the gated Tulsa neighborhood where Plaintiff resides. Defendant then parked his car in front of Plaintiff’s house, walked to the front porch and either knocked on the door or rang the doorbell. When Plaintiff opened the door, Defendant served Plaintiff a subpoena related to the Tulsa County case. Defendant then returned to his car and exited the neighborhood.
¶3 Plaintiff filed the instant suit two months later, asserting Defendant was trespassing when he entered the gated community and entered upon Plaintiff’s property without permission. Both sides thereafter moved for summary judgment. Plaintiff contended Defendant trespassed because he drove through the security gate without permission. Plaintiff’s argument included the proposition that everything in the neighborhood within the gates constitutes Plaintiff’s curtilage. Defendant averred he did not force his way into the neighborhood, the area within the neighborhood is owned by the community’s home owners’ association, Plaintiff has no standing to maintain a trespass action relating to the neighborhood common areas, and no curtilage existed on Plaintiff’s property upon which Defendant could have trespassed.
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¶11 Finally, we hold Defendant did not trespass upon the property actually owned by Plaintiff. The undisputed evidence demonstrates the front of Plaintiff’s house is not enclosed by a fence or similar obstacle. Defendant stopped his vehicle in the street in front of Plaintiff’s house, walked directly to Plaintiff’s doorway, either rang the doorbell or knocked on the door, and served Plaintiff when he opened the door. Plaintiff then immediately returned to his car and exited the area. He neither entered Plaintiff’s house nor remained on the premises against Plaintiff’s wishes.
¶12 A trespass is the physical invasion of the property of another without the owner’s permission. Fairlawn Cemetery Ass’n v. First Presbyterian Church, 1972 OK 66 ¶14, 496 P.2d 1185. Permission to enter another’s property may be either express or implied. Brown v. Nicholson, 1997 OK 32, ¶6, 935 P.2d 319. As Defendant correctly argues, members of the public have an implied consent to approach an unobstructed residence and knock on the front door. See United States v. Vaughn, 429 F. SupP.3d 499, 509 (E.D. Tenn. 2019), citing Kentucky v. King, 563 U.S. 452, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (“There is an implied consent for law enforcement, as members of the public, to approach an unobstructed residence and knock on the front door.”). As the United States Supreme Court has explained:
“A license may be implied from the habits of the country,” notwithstanding the “strict rule of the English common law as to entry upon a close.” McKee v. Gratz, 260 U.S. 127, 136, 43 S.Ct. 16, 67 L.Ed. 167 (1922) (Holmes, J.). We have accordingly recognized that “the knocker on the front door is treated as an invitation or license to attempt an entry, justifying ingress to the home by solicitors, hawkers and peddlers of all kinds.” Breard v. Alexandria, 341 U.S. 622, 626, 71 S.Ct. 920, 95 L.Ed. 1233 (1951). This implicit license typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave. Complying with the terms of that traditional invitation does not require fine-grained legal knowledge; it is generally managed without incident by the Nation’s Girl Scouts and trick-or-treaters. Thus, a police officer not armed with a warrant may approach a home and knock, precisely because that is “no more than any private citizen might do.” Kentucky v. King, 563 U.S. [452], [469-470], 131 S.Ct. 1849, 1862, 179 L.Ed.2d 865 (2011).
Florida v. Jardines, 569 U.S. 1, 8, 133 S. Ct. 1409, 1415–16, 185 L. Ed. 2d 495 (2013) (footnote omitted).
¶13 On the basis of the foregoing and upon de novo review, we hold there exists no genuine controversy as to any material fact and that Defendant is entitled to judgment as a matter of law. Accordingly, the judgment of the trial court is affirmed.
IN THE MATTER OF THE ESTATE OF SHEPHERD
2023 OK CIV APP 24
Case Number: 120182
Decided: 06/22/2023
Mandate Issued: 07/26/2023
¶1 Mary Helen Seever and Kathy Jo Shepherd (Daughters), appeal the denial of their application to be determined pretermitted heirs and awarded one-third of the estate of their deceased mother, Priscella Elaine Shepherd. The district court found that Priscella’s holographic will was valid and unambiguous, and Daughters were not pretermitted heirs because the will provided for Daughters, devising them a portion of Priscella’s estate. We affirm.
CHARLES SANDERS HOMES v. COOK & ASSOCIATES ENGINEERING
2023 OK CIV APP 23
Case Number: 119715
Decided: 08/25/2022
Mandate Issued: 06/29/2023
¶1 The instant appeal concerns the trial court’s award of attorney fees and costs to Plaintiff/Appellee, Charles Sanders Homes Inc. Plaintiff incurred the fees and costs in pursuing a deficiency order against Defendants/Appellants, Cook & Associates Engineering, Inc. and Justin Cook, in the underlying foreclosure proceeding. The deficiency order was entered in 2021 after remand from Appellate Case No. 115,458 (mandated June 17, 2020). In Case No. 115,458, Division II of the Court of Civil Appeals reversed the trial court’s order denying Defendants’ motion to vacate two deficiency orders entered against them. The appellate court vacated the 2012 and 2013 deficiency orders and remanded the deficiency issue to the trial court to conduct a hearing for the purpose of determining the fair market value of the foreclosed property pursuant to 12 O.S. 2011 §686 before determining whether any deficiency is owed. On remand, the trial court conducted a hearing, measured a new deficiency amount, and entered a new deficiency order. The trial court also determined Plaintiff was entitled to an award of attorney fees and costs incurred in pursuing the deficiency order. The court reserved its decision concerning the reasonable amount of fees and costs for a later date. After a subsequent hearing, the trial court determined the reasonable amount of Plaintiff’s attorney fees were $11,611.60 and costs were $4,009.87. Defendants now appeal from this order asserting the underlying 2012 foreclosure judgment became dormant under 12 O.S. 2011 §735, while the appeal in Case No. 115,458 was pending; thus, the 2021 deficiency order – entered after the foreclosure judgment became dormant – and the trial court’s award of attorney fees and costs thereon are nullities. Defendants also challenge the reasonableness of the attorney fees and costs award. We hold the 2021 deficiency order supplanted the vacated deficiency orders and that the dormancy period is measured from the date of the new deficiency order; thus, the 2021 deficiency order is enforceable. We hold the trial court properly determined Plaintiff is entitled to reasonable fees and costs. We further hold the trial court did not abuse its discretion when it calculated and awarded Plaintiff reasonable attorney fees and costs related to the acquisition of the 2021 deficiency order. The trial court’s order is affirmed.
…
¶15 In conclusion, this Court finds the trial court did not hold contrary to law when it determined Plaintiff is entitled to attorney fees and costs. We further hold the trial court did not abuse its discretion when it determined the reasonable amount of Plaintiff’s fees and costs. The trial court’s order is affirmed.
WATTS v. BELMAR NORTH HOA
2023 OK CIV APP 22
Case Number: 120710
Decided: 05/08/2023
Mandate Issued: 06/01/2023
¶1 Dustin Wayne Watts appeals from an order compelling arbitration. Based on our review, we affirm.
IN RE THE MARRIAGE OF COTTON
2023 OK CIV APP 21
Case Number: 119055
Decided: 07/29/2022
Mandate Issued: 06/01/2023
¶1 The appellant, Gary Cotton, appeals decisions by the district court as part of a divorce decree. Specifically, Gary argues that certain jointly-titled real estate and bank accounts were not marital property, subject to equitable division between him and his now ex-wife, Judy Renee Cotton, who goes by Renee. On review, we find that the trial court neither abused its discretion nor made any finding that is against the clear weight of the evidence. Accordingly, we affirm.
DORITY v. YODER
2023 OK CIV APP 20
Case Number: 120367
Decided: 07/29/2022
Mandate Issued: 05/18/2023
¶1 Plaintiff/Appellant Kiah R. Dority appeals from an order dismissing with prejudice her negligence petition against Defendants/Appellees Ryan C. Yoder and Big Five Community Services, Inc. (Big Five). Dority alleged she was injured in a motor vehicle accident involving Yoder while he was in the scope of his employment with Big Five. In its motion to dismiss, Big Five asserted it is a political subdivision, Dority failed to give timely notice of her tort claim as required by the Governmental Tort Claims Act (GTCA or the Act), and therefore this action is barred. Dority argued waiver and estoppel excused her failure to give Big Five proper notice of her claim because she had no notice that Big Five was a political subdivision and because Big Five’s insurance agent told her she had two years to file suit. It is undisputed Yoder was acting in the course of employment for Big Five and the trial court therefore correctly dismissed Dority’s claims against him. See 51 O.S.2021 §153(C). Our de novo review of the record shows Big Five has not presented evidence that it was a designated community action agency at the time of the alleged injury and Dority’s affidavit indicated Big Five’s agent lulled Dority into failing to give timely notice of her tort claim. Accordingly, questions of fact remain as to whether Big Five is estopped from challenging liability on that basis. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
BRISCO v. GERARD
2023 OK CIV APP 19
Case Number: 119331
Decided: 04/12/2022
Mandate Issued: 05/18/2023
¶1 Rochelle Brisco (Brisco), as Special Administrator of the Estate of Christopher Jesse Curtis Cooper (Cooper), appeals the district court’s February 12, 2020 Amended Journal Entry of Judgment, granting summary judgment in favor of Dr. Rachel J. Dalthorp (Dr. Dalthorp) and the August 24, 2020 Journal Entry of Judgment granting summary judgment in favor of Red Rock Behavioral Health Services (Red Rock).1 The primary issue is whether the undisputed material facts show there was no physician-patient relationship between Dr. Dalthorp and Cooper, and therefore, she owed no duty to him and was not negligent as a matter of law. Based on our review of the record and applicable law, we find the undisputed facts showed no physician-patient relationship was established, and we affirm both orders granting summary judgment in favor of Dr. Dalthorp and Red Rock.
YERTON v. CITY OF TULSA
2023 OK CIV APP 18
Case Number: 120978
Decided: 04/14/2023
Mandate Issued: 05/11/2023
¶1 Appellant/Plaintiff, Frederick A. Yerton, Jr., appeals from the trial court’s Orders granting Appellee’s/Defendant’s Motion to Dismiss and denying Appellant’s Motion for New Trial and Amended Motion for Stay of Administrative Hearing-Order of Abatement-Demolition. Appellant is a property owner who was afforded an administrative hearing pursuant to 11 O.S.2021, § 22-112(A)(2), where a hearing officer determined his property was subject to condemnation. Upon the conclusion of the hearing, Appellant filed an appeal with the Tulsa City Council. The City Council issued a Final Order affirming the hearing officer’s decision on August 3, 2022. Appellant petitioned for judicial review in the District Court of Tulsa County. Appellee filed a motion to dismiss alleging Appellant’s appeal of the Tulsa City Council’s Final Order was untimely pursuant to 12 O.S.2021, § 951. The trial court granted the motion to dismiss. Because condemnation appeals are governed by 11 O.S.2021, § 22-112(A)(3), Appellant’s appeal to District Court was timely. Therefore, this case is REVERSED and REMANDED.
HICKMAN v. STATE ex rel. SERVICE OKLAHOMA
2023 OK CIV APP 17
Case Number: 120906
Decided: 04/14/2023
Mandate Issued: 05/11/2023
¶1 This appeal stems from an Order by the trial court that granted summary judgment and directed the Oklahoma Tax Commission1 to issue an original title (versus a salvage title) for a 2017 Lincoln automobile following an accident concerning which the owner’s insurance carrier had reported that, because of its evaluation, the cost of safely repairing the vehicle exceeded 60% of its fair market value at the time of the loss. The Appellee, Steven R. Hickman, brought this action to challenge the determination by Cross-Appellee, GEICO Casualty Company, of the costs of repairing the vehicle for safe operation on the highway and the type of certificate of title that should be issued by the Defendant/Appellant, Counter-Appellee, OTC. We hold that 47 O.S. §§ 1105 & 1111, allow an owner of a vehicle in Hickman’s posture to pursue a civil action against the OTC and the insurer, as alleged herein. In light of the summary judgment record, we affirm the trial court’s January 3, 2023, Journal Entry of Judgment.
ELLIS v. ASCENSION ST. JOHN MEDICAL CENTER
2023 OK CIV APP 16
Case Number: 120524
Decided: 04/14/2023
Mandate Issued: 05/11/2023
¶1 Plaintiff/Appellant, Andrea Ellis, as next of kin of Wanda Lilly, Deceased, brought this action against Defendants for medical negligence one day before the expiration of the applicable statute of limitations. Defendant/Appellee, Ascension St. John Medical Center, Inc., a domestic not for profit corporation d/b/a Ascension St. John Broken Arrow1, moved to dismiss asserting Plaintiff failed to properly name a legal entity. Defendants, Tulsa Bone & Joint Associates, P.C. and Scott J. Dunitz, M.D., entered a special appearance and requested additional time to answer. St. John Broken Arrow, Inc. filed a non-party motion to dismiss. Before any answer was filed, Plaintiff filed an amended petition and properly named Defendant St. John Medical Center Inc., by its legal name and added the “non-party” St. John Broken Arrow, Inc., as an additional Defendant. Defendants moved to dismiss the amended petition asserting Plaintiff filed the amended petition after Defendants filed “responsive pleadings;” therefore, the amended petition should be stricken because Plaintiff failed to obtain leave of court or Defendants’ permission. Plaintiff countered she amended the petition as a matter of right pursuant to 12 O.S. 2021 §2015(A) and §2007(A). The district court dismissed the entity named “Ascension St. John Medical Center, Inc.,” holding it is not a legal entity. The court held it did not have jurisdiction over non-party St. John Broken Arrow, Inc. The court also granted Defendants’ motions to strike the amended petition holding St. John Medical Center, Inc.’s motion to dismiss was a responsive pleading and either consent of the adverse parties or leave of court to amend was required. Plaintiff dismissed the remaining parties and appealed. We hold motions to dismiss are not responsive pleadings within the meaning of §2015(A). The district court’s order striking the amended petition is reversed. The district court’s order dismissing Ascension St. John Medical Center, Inc. d/b/a Ascension St. John Broken Arrow is moot. Plaintiff’s amended petition properly named St. John Broken Arrow, Inc. as an additional party and Plaintiff’s claim against St. John Broken Arrow, Inc. relates back to the file date of the original petition. The court’s order determining it did not have jurisdiction over St. John Broken Arrow, Inc. is reversed. This matter is remanded to the district court for further proceedings consistent with this opinion.
HILFIGER v. HILFIGER
2023 OK CIV APP 15
Case Number: 120232
Decided: 04/14/2023
Mandate Issued: 05/11/2023
¶1 In this post-dissolution of marriage proceeding involving issues related to child custody modification, Jemellia Hilfiger (Mother) appeals from an order denying her motion for new trial. Based on our review, we affirm.
MOORE v. BOB HOWARD GERMAN IMPORTS
2023 OK CIV APP 14
Case Number: 120124
Decided: 04/12/2023
Mandate Issued: 05/11/2023
¶1 Steve Moore appeals the district court’s granting of a motion to compel arbitration in favor of Bob Howard German Imports, d/b/a Mercedes-Benz of Oklahoma City and Bob Howard Luxury Auto Group (collectively, the dealership). Moore argues on appeal that the arbitration provision was invalid because it was induced by fraud. On review, we find that the record does not show fraudulent inducement and therefore affirm the trial court’s decision.
MAGEL v. NUVEEN
2023 OK CIV APP 13
Case Number: 119962
Decided: 04/04/2023
Mandate Issued: 04/27/2023
¶1 Defendants Erik Nuveen, M.D., Courtney Caplin, M.D., and their respective professional liability corporations (Doctors), appeal from the district court’s order denying their motion to compel arbitration of claims in an action filed by Plaintiff Jessica Magel. The issue is whether the parties entered into a valid, enforceable agreement to arbitrate Magel’s claims, all of which concern allegations of Doctors’ medical negligence in the performance of elective cosmetic surgery and subsequent revision surgeries.1 The district court found that the arbitration agreement that Magel signed prior to undergoing any surgery was not unconscionable or fraudulently induced, as Magel had argued, and those findings are affirmed.
¶2 However, the district court also held, as a matter of law, that the Arbitration Agreement was not valid or enforceable because, by plain language, the agreement required signatures from both parties and a physician’s signature does not appear on the agreement. It is undisputed that Magel signed the Arbitration Agreement and other surgery-related documents during a pre-surgery appointment and that the Doctors performed the surgery contemplated in that agreement. It is also undisputed that Magel’s surgeon electronically signed the visit note for the pre-surgery appointment and Doctors have never contended they were not bound by the agreement to arbitrate. Whether any other method of execution or manifestation of the Doctors’ consent was required is a condition precedent the arbitrator, not the court, must decide.
BAYVIEW LOAN SERVICING v. BAXTER
2023 OK CIV APP 12
Case Number: 120548
Decided: 03/24/2023
Mandate Issued: 04/20/2023
¶1 Bryan and Amanda Baxter appeal a summary judgment of the district court granting foreclosure of a mortgage in favor of the appellee, Bayview Loan Servicing, LLC. On review, we find that the Baxters raised questions of material fact as to a possible equitable defense to foreclosure that should have prevented summary judgment. As such, we vacate the judgment and remand for further proceedings consistent with this opinion.
SSS FENCE v. PENDLETON
2023 OK CIV APP 11
Case Number: 119670
Decided: 07/21/2022
Mandate Issued: 04/20/2023
¶1 Plaintiff SSS Fence, LLC, appeals the district court’s grant of the defendants’ motions to dismiss for failure to state a claim on which relief can be granted. The court found that the defendants’ allegedly defamatory statements were pure opinion and that the fair comment privilege applied and therefore dismissed the case. The trial court erred in both respects. The statements at issue were either statements of fact or implied facts that, if false, are defamatory. We therefore reverse and remand for further proceedings.
JONES v. CABLER
2023 OK CIV APP 10
Case Number: 119459
Decided: 07/29/2022
Mandate Issued: 04/20/2023
¶1 Randy Jones appeals a decision of the district court finding his workers’ compensation insurer was entitled to a subrogation reimbursement of $44,254 from the proceeds of his tort recovery against the third parties who caused his injuries. Jones challenges (1) the constitutionality of the statutory workers’ compensation subrogation statute, and (2) whether, if the statute is constitutional, the insurer can recover reimbursement for amounts spent on a “medical case manager.” We affirm, finding the relevant statutory provision to be constitutional and that the appellant has failed to show that reimbursement for the medical case manager was outside the statutory framework.
RAY v. STITT
2023 OK CIV APP 9
Case Number: 120547
Decided: 03/01/2023
Mandate Issued: 03/30/2023
¶1 Lancey Ray appeals the district court’s dismissal of Ray’s action, which sought a writ of mandamus directing the respondents to initiate parole hearings for “all nonviolent offenders … who are within six (6) months of their scheduled release,” pursuant to 57 O.S. § 37(A)(1). The matter was dismissed upon the court’s decision that Ray was twice directed to serve the respondents “in accordance with law” and did not do so. On review, we find that Ray complied with the court’s order as given and reverse the dismissal.
SNOW v. TRAVELCENTERS OF AMERICA
2023 OK CIV APP 8
Case Number: 119143
Decided: 07/12/2022
Mandate Issued: 03/24/2023
¶1 This case concerns an automobile accident caused by defendant Auntra Lawan Edmonds which resulted in the deaths of Wanda Perry and her one-year-old granddaughter, A.P. Gary Snow, as Court Appointed Personal Representative of the Estate of Wanda Perry and the Estate of A.P., a Deceased Minor Child, sued Edmonds, TravelCenters of America, LLC, d/b/a TA Sayre # 152, TA Operating LLC d/b/a TravelCenters of America d/b/a TA Sayre # 152 (collectively TravelCenters), and its employees Shelby Nicole Sandoval and Jasmine Thomasina Noemi Foote. The accident occurred after Edmonds purchased motor fuel from a TravelCenters store where Sandoval and Foote were working. Plaintiffs alleged that TravelCenters and its employees were negligent in selling motor fuel to Edmonds because he was intoxicated at the time. TravelCenters filed a motion to dismiss arguing that the Plaintiffs’ petition failed to state a cause of action. The Plaintiffs appeal the judgment entered in favor of TravelCenters, Sandoval and Foote granting TravelCenters’ motion to dismiss.1
¶2 As stated in the Plaintiffs’ petition in error, the single issue raised by this appeal is whether a retail vendor of motor fuel has a duty “to refrain from selling motor fuel to a noticeably intoxicated person who the vendor knows or should have known is driving the motor vehicle for which the fuel is purchased.” The duty the Plaintiffs seek has yet to be recognized in Oklahoma’s statutory or common law. We affirm the dismissal of the Plaintiffs’ petition.
HARMON v. ALEXANDER
2023 OK CIV APP 7
Case Number: 119365
Decided: 05/09/2022
Mandate Issued: 03/09/2023
¶1 Therone Trent Alexander appeals the trial court’s order denying his motion to vacate a final protective order and his motion for new trial. We are asked to determine whether the trial court abused its discretion in denying these motions. Ashley Renee Harmon appeals the trial court’s decision awarding attorney fees. After review, we conclude it was an abuse of discretion not to vacate the protective order, and the attorney fee award to Harmon was therefore in error. In accord with these conclusions, the decisions are reversed.
TINKER FEDERAL CREDIT UNION v. LITICKER
2023 OK CIV APP 6
Case Number: 118884
Decided: 04/11/2022
Mandate Issued: 03/02/2023
¶1 In this action for replevin of a vehicle and for a money judgment, Gerald Liticker appeals from the trial court’s order granting summary judgment to Tinker Federal Credit Union (TFCU) on his counterclaims. We affirm.
VULCAN CONSTRUCTION MATERIALS v. CITY OF TISHOMINGO
2023 OK CIV APP 5
Case Number: 118573
Decided: 04/22/2022
Mandate Issued: 03/02/2023
¶1 The plaintiffs, limestone mining companies operating or planning to operate1 north of the city of Tishomingo, appeal a district court decision finding that alterations to the City of Tishomingo’s nuisance ordinances–modifications that would severely limit the companies’ operations and which directly conflict with state law permitting those same activities–are not preempted by state law. On review, we find the operative portion of the ordinances is preempted, but that other provisions are not. Accordingly, we reverse in part and affirm in part.
HELLER v. BALLINGER
2023 OK CIV APP 4
Case Number: 119814
Decided: 05/17/2022
Mandate Issued: 02/16/2023
¶1 Austin Richard Heller (Father) appeals a trial court order finding that his minor child AMH is eligible for adoption without his consent. 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
RIPP v. OKLAHOMA COMMUNICATIONS SYSTEMS
2023 OK CIV APP 3
Case Number: 119127
Decided: 04/22/2022
Mandate Issued: 02/16/2023
¶1 The defendant, Oklahoma Communications Systems, Inc., a/k/a TDS (TDS), appeals an Order Regarding Class Action Certification, which certified two classes in an action brought by the plaintiffs, Sabrina Ripp and Rash Construction, Inc. (RCI). TDS focuses its appellate argument on the weight of the evidence introduced at the class certification evidentiary hearing and argues that the Plaintiffs failed to prove the allegations necessary to obtain certification. This focus is improper under the applicable standard of review. The issue to be resolved in this appeal is a legal one: does the Plaintiffs’ petition, not the evidence produced at the class certification hearing, “contain[] factual allegations sufficient to demonstrate a plausible claim for relief. . . .” 12 O.S. Supp. 2013 § 2023(B). We hold that it does and affirm the order appealed.
WHITE v. 918 CONSTRUCTION
2023 OK CIV APP 2
Case Number: 120459
Decided: 12/16/2022
Mandate Issued: 01/12/2023
Petitioner, David White (Claimant), seeks review of the Workers’ Compensation Commission’s (Commission) order affirming an Administrative Law Judge’s (ALJ) dismissal of Claimant’s claim with prejudice. Relying on 85A O.S. Supp. 2019 §69(A)(4), the ALJ found Claimant failed, within six (6) months of filing his claim, to either (a) make a good faith request for a hearing or (b) receive or seek benefits. We hold Claimant timely sought benefits within the meaning of §69(A)(4) (b). As such, we need not address the constitutionality of the statute. The Commission’s order is reversed and this matter is remanded for further proceedings.
TRAITZ v. TRAITZ
2023 OK CIV APP 1
Case Number: 120350
Decided: 12/07/2022
Mandate Issued: 01/05/2023
¶1 James Victor Traitz appeals trial court orders vacating an order granting an annulment to James and denying his motion to reconsider. The issues before us are whether James showed the trial court abused its discretion or erred as a matter of law either in granting Jessica Aubrey Traitz’s motion to vacate the annulment or in denying James’ motion to reconsider that decision. After review, we conclude that the trial court erred as a matter of law in holding James was required to file a motion for default judgment and using that legal basis for vacating the decree of annulment. The decree of annulment should not have been vacated, and the refusal to reconsider the decision to vacate was therefore an abuse of discretion. Accordingly, we reverse the trial court’s orders and remand with directions to enforce the decree of annulment and its disposition of property and debt.