Oklahoma Court of Civil Appeals | 2024
Decisions
GARRETT v. BELL
2024 OK CIV APP 13
Case Number: 120999
Decided: 10/27/2023
Mandate Issued: 04/25/2024
¶1 Plaintiffs David M. Garrett and the Garrett Law Office (collectively “Garrett”) appeal an order granting summary judgment on their claims against attorney Richard A. Bell and the Bell Law Firm, LPPC (collectively “Bell”), in this attorney’s fee dispute. Garrett sought declaratory judgment as to the enforceability of a fee-splitting or referral agreement against Bell, and asserted various related contract and tort claims.1 Bell asserted that an agreement to share fees on any particular case was unenforceable under Oklahoma Rule of Professional Conduct 1.5(e), and that Garrett’s claims to fees should have been brought during proceedings for fees before the Workers’ Compensation Court of Existing Claims (CEC) and were barred by the doctrine of res judicata or claim preclusion. The district court granted summary judgment to Bell. On review of the applicable law and the record, we affirm the trial court’s judgment of December 21, 2022, in part, with respect to eighteen cases Bell did not litigate in the CEC, and reverse the remainder of the district court’s judgment, and remand for further proceedings.
IN RE THE MARRIAGE OF JONES
2024 OK CIV APP 12
Case Number: 117025
Decided: 03/15/2023
Mandate Issued: 04/11/2024
¶1 Alberta Rose Jones appeals various district court rulings related to and including the divorce Decree entered in this marriage dissolution action she filed against Appellee Donald David Jones. The substance of her appeal asserts that the “default decree” is void because she did not receive the required notice of the hearing when the Decree was entered. That contention is not supported by the record. Further, Alberta failed to preserve appellate review for any of the issues argued in her appellate briefing. Nonetheless, we review the Decree for fundamental error. Finding none, we affirm.
NORTH STAR MUTUAL INSURANCE CO. v. ZIELNY
2024 OK CIV APP 11
Case Number: 119695
Decided: 05/08/2023
Mandate Issued: 03/07/2023
¶1 North Star Mutual Insurance Company appeals that portion of the district court’s order denying its motion for attorney fees in this declaratory judgment action. The single issue presented by this appeal is whether North Star is entitled to attorney fees, as a matter of law, pursuant to 36 O.S.2011 § 3629(B). We hold that it is. That part of the order denying North Star’s motion for attorney fees is reversed, and this case is remanded to determine the reasonable amount of attorney fees to be awarded North Star consistent with this Opinion.
TEASDALE v. FOSHEE
2024 OK CIV APP 10
Case Number: 120265
Decided: 02/02/2024
Mandate Issued: 02/29/2024
¶1 The defendant/appellant, Christopher Foshee (Foshee), appeals an order granting in part his motion for costs and denying his motion for attorneys’ fees. Foshee filed two offers of judgment in this case. On September 6, 2019, Foshee served and filed an offer of judgment pursuant to 12 O.S.2021 § 1101.1(A). Then, on December 2, 2019, Foshee served and filed an offer of judgment pursuant to 12 O.S.2021 § 1101. Following a jury trial during which Foshee prevailed, Foshee sought his costs under 12 O.S.2021 §§ 929 and 942 and his attorneys’ fees pursuant to 12 O.S.2021 § 1101.1(A) against plaintiff/appellee David Teasdale (Teasdale). The district court awarded Foshee his costs, but denied his request for attorneys’ fees, finding that Foshee’s last offer of judgment pursuant to 12 O.S.2021 § 1101 controlled. We affirm the district court’s Order on Defendant’s Motion for Attorneys’ Fees and Costs (Order) awarding Foshee’s costs. However, as to the award of attorneys’ fees, we vacate the Order denying Foshee’s attorneys’ fees, and remand the case for entry of a new order as to attorneys’ fees consistent with this Opinion.
PREWITT v. QUIKTRIP CORPORATION
2024 OK CIV APP 9
Case Number: 120960
Decided: 08/14/2023
Mandate Issued: 02/15/2024
¶1 Kristoffer Swede Prewitt (Claimant) seeks review of an order of the Workers’ Compensation Court of Existing Claims, which denied his request for authorization of a spinal cord stimulator as continued medical maintenance (CMM). Based on our review of the record and applicable law, we reverse the order under review and remand for further proceedings consistent with this Opinion.
WILLIAMS v. WILLIAMS
2024 OK CIV APP 8
Case Number: 119960
Decided: 04/18/2023
Mandate Issued: 02/15/2024
¶1 Celes Williams (Wife) appeals from that portion of the district court’s Decree of Dissolution of Marriage finding that a certain business is the separate property of Frank Williams (Husband). We reverse and remand with directions.
ORTHMAN v. PREMIERE PEDIATRICS
2024 OK CIV APP 7
Case Number: 121682
Decided: 01/05/2024
¶1 The Plaintiffs’ claims stem from an alleged cyberattack by unknown persons on a third-party healthcare technology company, Connexin Software, Inc., which allegedly manages the electronic health records and patient data analytics of the Defendant, Premiere Pediatrics, PLLC. The trial court dismissed the Petition, with prejudice, for both a lack of standing and for failure to state a claim upon which relief may be granted based primarily on the trial court’s view that the Plaintiffs had not plead “concrete injuries-in-fact.” We reverse in part and affirm in part. More specifically, we find that, as a matter of law, it was error for the trial court to dismiss the Petition based on an alleged lack of standing. We also find that, in light of the foundational principle of “notice pleading” that is firmly rooted in Oklahoma jurisprudence, it was error for the trial court to dismiss the claims for negligence, breach of implied contract, and breach of fiduciary duty based on the finding that, with respect to said claims, Plaintiffs failed to state a claim upon which relief may be granted. We affirm the trial court’s dismissal of the remaining claims under 12 O.S. § 2012B(6). We additionally find that it was error for the trial court to not give the Plaintiffs an opportunity to amend the Petition,1 including, but not limited to, their claim for mitigation damages, which are in the nature of the expenses they expect to incur to guard against future or anticipated damages. As plead by the Plaintiffs, their mitigation damages consist of the cost of mitigating against the allegedly heightened and imminent risk of fraud and identity theft they now allegedly face. We find that, as a matter of law, such mitigation damages are not recoverable in the absence of actual past harms incurred by the Plaintiffs and, if so, only in the event the future effect of the injury or loss is shown “with reasonable certainty,” not mere conjecture or probability. Thus, the trial court’s Order of September 15, 2023, is affirmed, in part, and reversed, in part, and the matter is remanded for further proceedings consistent with this Opinion.
HOLLAND v. ROBERTS
2024 OK CIV APP 6
Case Number: 121445
Decided: 01/09/2024
¶1 Sean Roberts alleges Mr. Fount Holland used his consulting business, Campaign Advocacy Management Professionals, LLC, in a scheme to destroy his political career. We affirm the district court’s order dismissing Roberts’ counterclaim for damages under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§1961-1968.
¶2 Holland filed a petition against Roberts on August 24, 2022, alleging libel and slander, false light invasion of privacy and negligence. Roberts issued a press release that suggested Holland, together with Roberts’ political adversaries, sought to discredit him with allegations relating to his relationship with his former wife.1 Roberts filed an answer with a counterclaim alleging racketeering activities including extortion under 18 U.S.C. §1951, mail fraud under 18 U.S.C. §1341, and wire fraud under 18 U.S.C. §1343. Holland moved to dismiss, and at the conclusion of a hearing the court gave Roberts an opportunity to amend his counterclaim to plead the requirements of RICO with particularity.2 In his amended counterclaim, Roberts alleges Holland engaged in a pattern of racketeering activity that caused him to lose his election for Oklahoma Labor Commissioner, thereby injuring his business and property and entitling him to treble damages under 18 U.S.C. §1964(c). Holland again moved to dismiss the RICO claim pursuant to 12 O.S. §2012(B)(6) and the court granted the relief. Roberts appealed.3
…
¶16 In summary, we hold the amended counterclaim was filed within four years of the alleged injury and therefore is not barred by the statute of limitations. However, because the pleading is insufficient concerning the alleged predicate acts of mail fraud and wire fraud, there is no pattern of racketeering activity, and the counterclaim does not state a claim for damages under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§1961-1968. The motion to dismiss was properly granted.
ONDOBO v. INTEGRIS BAPTIST MEDICAL CENTER
2024 OK CIV APP 5
Case Number: 120354
Decided: 05/02/2023
¶1 Georgette M. Ondobo, pro se, appeals the district court’s May 17, 2022 journal entry granting summary judgment to Integris Baptist Medical Center Inc.; Integris Health, Inc.; and Robert Alan Schiermeyer, D.O. (collectively “Defendants”). The issue of whether the district court properly granted summary judgment turns on whether the court abused its discretion in finding the affidavit of Defendants’ medical expert was admissible but that the purported expert affidavits that Ondobo submitted in opposition to summary judgment were inadmissible. Based on our review of the record and applicable law, we affirm the journal entry.
PHILLIPS v. NATIONAL OILWELL VARCO
2024 OK CIV APP 4
Case Number: 120288
Decided: 05/17/2023
¶1 Richard W. Phillips (Phillips) and Eric C. Mullen (Mullen, collectively “Plaintiffs”) appeal a judgment following jury verdict in their favor of $6,190.56 and $5,000.00 respectively against Defendants Brady Austin Almaguer (Almaguer) and employer National Oilwell Varco, L.P. (NOV).1 Plaintiffs assert the trial court erred by consolidating their claims arising from the same motor vehicle accident; by granting directed verdict on punitive damages; that Defendants’ counsel’s statements at trial unfairly prejudiced the jury; and that the damage award was clearly inadequate as a result of passion or prejudice. On review of the record and the briefing of the parties, we affirm the trial court’s judgment of February 22, 2022.
CARTER v. PENDLEY
2024 OK CIV APP 3
Case Number: 120153
Decided: 05/12/2023
¶1 Plaintiffs George Carter and Berdine Carter appeal from a judgment entered on a jury’s verdict finding in favor of George awarding him $0 and finding in favor of Berdine awarding her $2,000. After full review of the record and relevant law, we affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
¶2 On April 9, 2016, Plaintiffs were travelling southbound on U.S. Highway 81 in Marlow, Oklahoma. As they approached the intersection of U.S. Highway 81 and Ballpark Road to turn left onto Ballpark Road, Berdine stopped, yielding to an oncoming northbound vehicle, before attempting to make the turn. At the same time, Defendant Cory Michael Pendley was travelling westbound on Ballpark Road, approaching the intersection. He stopped at the intersection and looking to the right, he observed a southbound vehicle approximately 40 yards away and then looking to his left, he saw a northbound vehicle approximately a mile away. He waited until the southbound vehicle passed, then pulled forward into the intersection. Plaintiffs’ vehicle was behind the southbound vehicle observed by Defendant. Defendant never saw Plaintiffs’ vehicle until he pulled into the intersection. Once he saw Plaintiffs’ vehicle, he slammed on the brakes, but could not stop in time and hit Plaintiffs’ truck.
¶3 Plaintiffs filed the present action against Defendant claiming his actions caused them “bodily injuries and damages.” Plaintiffs further claim that Defendant’s “acts in causing the collision were either grossly negligent or in reckless disregard for the rights and safety of others[,] intentional and/or life threatening.” Defendant answered with affirmative defenses including “[w]hether [they] suffer from any pre-existing or post-arising medical condition will be developed during discovery and Defendant herein reserves all defenses in that regard.”
¶4 Before trial began, Defendant admitted fault in causing the accident. Because liability had been admitted, the jury trial proceeded to determine only the issue of damages. The jury awarded $0 in damages to George Carter and $2,000 in damages to Berdine Carter.
¶5 Plaintiffs appeal.
…
¶28 We conclude the trial court properly determined the evidence did not require submission of punitive damages to the jury. Defendant testified he did not intentionally cause the accident with Plaintiffs. He testified he was not in a hurry or running late getting to his grandmother’s house. Defendant further testified he was not distracted “at the point of impact when the two vehicles came in contact with each other.” Defendant testified he stopped at the intersection, looked out his passenger side window, “saw a car approximately 40 yards away,” and felt it was unsafe to pull into the intersection at that point. He then “looked through [his] driver’s-side window and saw a car way off, approximately almost a mile[,]” and felt it was far enough away to safely pull into the intersection. He then states that as he “was still looking out [his] driver’s-side window, [he]–out [his] periphery, [he] saw the car [he’d] seen 40 yards away on [his] passenger’s side cross [his] point of view and [he] started to pull forward.” Plaintiffs’ vehicle was also traveling south on Highway 81, but Defendant did not see their vehicle until “[a] split second before [he] hit it.” According to Defendant, he was driving about five miles an hour when he hit Plaintiffs’ vehicle and he thinks Plaintiffs’ vehicle may have been in a blind spot created by his vehicle’s A-Pillar5 when he looked to his right. The record shows that Defendant had stopped at the intersection and looked both ways and that he was not distracted or in a hurry at the time of the accident. He failed to see Plaintiffs’ vehicle until the last second before impact and tried to brake.
¶29 “[I]n vehicular cases, gross negligence sufficient to support punitive damages requires more than simple negligence or an accident resulting from a driver’s inadvertence.”6 Myers v. Bhullar, 609 F.Supp.3d 1232, 1239 (W.D. Okla. 2022)(applying Oklahoma law on punitive damages). “[T]he mere happening of an accident as a result of inadvertence on the part of the responsible party is insufficient to constitute gross negligence.” Hinds v. Warren Transp., Inc., 1994 OK CIV APP 52, ¶ 11, 882 P.2d 1099. “Only where there is evidence in the record supporting an inference of gross negligence or reckless disregard and/or indifference for the safety of others must the issue of punitive damages be submitted to the jury.” Id. “‘Reckless disregard’ is not to be confused with inadvertent conduct.” Thiry v. Armstrong World Indus., 1983 OK 28, ¶ 26, 661 P.2d 515. “To meet this standard, the [defendant] must either be aware of, or culpably indifferent to, an unnecessary risk of injury.” Id.
¶30 We agree with the trial court that the evidence did not permit the submission of punitive damages to the jury. Plaintiffs failed to show by clear and convincing evidence that Defendant acted in “reckless disregard of the rights of others” or “acted intentionally and with malice towards others.” And Plaintiffs failed to persuade the trial court that evidence of a failure to stop in time to avoid a collision at five miles per hour constitutes “reckless driving” in violation of 47 O.S.2021 §§ 11-801 and 11-901 that automatically entitled them to a punitive damages instruction. We agree with the trial court. The court properly performed its gatekeeping function to determine, on the question of punitive damages, whether there was clear and convincing evidence from which the jury could reasonably conclude that Defendant acted in reckless disregard of the rights of others. There was evidence of failure to pay sufficient attention to notice Plaintiffs in the intersection, but as the trial court concluded, there was no clear and convincing evidence of reckless disregard for others’ rights–the evidence did not warrant the submission of punitive damages to the jury, and the trial court correctly refused to submit or instruct on punitive damages.
CONCLUSION
¶31 Finding no reversible error, we affirm the trial court’s rulings.
BUTTERFIELD v. TRUSTEE OF MCCOY REVOCABLE LIVING TRUST
2024 OK CIV APP 2
Case Number: 121212
Decided: 12/08/2023
Mandate Issued: 01/04/2024
¶1 This appeal involves competing motions for summary judgment to quiet title to real property located in Delaware County based on conflicting claims of ownership. Plaintiff/Appellant C.R. Butterfield (Butterfield) claims he has superior title based on his possession of the property. Defendant/Appellee the Johnny B. McCoy Revocable Living Trust (McCoy Trust) claims it has superior title because it was first to file a deed in the land records. After de novo review, we hold the McCoy Trust has superior title and affirm the trial court’s order granting the McCoy Trust’s motion for summary judgment, denying Butterfield’s motion for summary judgment, and quieting title in the name of the McCoy Trust.
IN THE MATTER OF A.B.
2024 OK CIV APP 1
Case Number: 120893
Decided: 11/29/2023
Mandate Issued: 01/04/2024
¶1 Respondent/Appellant Gina Whiting (Mother) challenges the termination of her parental rights to her minor children, A.B. and A.B. Mother’s rights were terminated after a jury returned verdicts finding it was in the children’s best interests to terminate Mother’s rights because (1) the children had been in foster care for six of the most recent twelve months and could not be safely returned to Mother’s home; (2) there had been a substantial erosion in the children’s relationship with Mother due, in part, to Mother’s prolonged and unreasonable absence from the children; and (3) Mother had not corrected the conditions that caused the children to be adjudicated deprived — namely, substance abuse, threat of harm, neglect, environmental neglect, and lack of a safe and stable home. On appeal, Mother argues she was denied due process and a fair trial because the trial was held without her being physically present. She also claims the court abused its discretion by allowing the State to elicit testimony about her unadjudicated criminal offenses.
¶2 We find no due process violations or absence of fair trial. The trial court issued writs of habeas corpus ad testificandum to secure Mother’s attendance, and, when the out-of-state facility in which Mother was jailed at the time of trial refused the writs, the court made other reasonable accommodations to ensure Mother could participate. Further, although we agree the court erred by allowing evidence of Mother’s arrests, we have “affirmatively ascertained from the record that no harm resulted therefrom.” See Matter of K.H., 2021 OK 33, ¶29, 507 P.3d 647, 654 (inherently prejudicial evidentiary error not reversible if affirmatively ascertained that no harm resulted). Accordingly, we affirm. However, we remand with instructions to omit factual findings from the final order that were not made by the jury.
…
¶17 We have affirmatively ascertained from the record on appeal that, despite the court’s admission of prejudicial evidence, Mother otherwise received a fair trial and no harm resulted from the error. The court’s order terminating Mother’s rights upon the jury’s verdicts is affirmed. The order, however, requires slight revision. See In re E.M., 2019 OK CIV APP 30, ¶11, 442 P.3d 1084, 1087. Box B9 (the box for indicating termination based on substantial erosion of the parent/child relationship) includes the following notation: “Natural Mother has seen the children once in person in the last two years and the children no longer understand her as their mother.” The jury was the fact-finder in this case, and its verdict did not include this specific finding. The court is instructed to enter a new Order Terminating Parental Rights omitting the extraneous language entered on Box B9.