Oklahoma Court of Civil Appeals | 2024
Decisions
THORNBURG v. STATE
2024 OK CIV APP 30
Case Number: 121736
Decided: 10/02/2024
Mandate Issued: 10/24/2024
¶1 Dana Thornburg (Appellant) has appealed the trial court’s denial of her Motion to Exonerate Bond, in which she sought to exonerate the surety bond posted on behalf of Defendant, Jianguo Zeng, who failed to appear at a scheduled hearing. Thornburg alleged that Zeng had been deported to China, not only delaying her efforts to locate Zeng, but making his return an impossibility of his return due to China’s extradition policies. Based thereon, Thornburg argued the existence of “good cause” pursuant to 59 O.S. § 1332, leading to her Motion to Exonerate Bond. The trial court denied Thornburg’s Motion, citing to the State’s oral objection that the bondsman “assumed the risk of bonding a foreign national,” and it is the trial court’s denial of her Motion to Exonerate Bond from which Thornburg sought appellate review.
EXENCIAL WEALTH ADVISORS v. MORGAN STANLEY SMITH BARNEY
2024 OK CIV APP 29
Case Number: 121065
Decided: 11/22/2024
Mandate Issued: 12/31/2024
¶1 Morgan Stanley Smith Barney, LLC (Morgan Stanley), appeals the district court’s order denying its motion to compel arbitration. Exencial Wealth Advisors LLC and Burns Wealth Management, Inc. (Exencial, unless the context requires otherwise) sued their former employee and partner, Matthew Ventura, and Morgan Stanley after Ventura went to work for Morgan Stanley. The Exencial Operating Agreement signed by Ventura contained an arbitration clause, and the district court granted Ventura’s motion to compel Exencial to arbitrate its claim against him. Morgan Stanley also filed a motion to compel arbitration, which the district court denied.
¶2 The issue in this appeal is whether Morgan Stanley, a non-signatory to the Exencial/Ventura Operating Agreement containing the arbitration agreement, can compel a signatory, Exencial, to arbitrate its claim. Exencial’s claim against Morgan Stanley arises out of the contract containing the arbitration agreement, and the alleged breach of that contract is the essence of Exencial’s suit. In addition, Exencial’s claim against Morgan Stanley is integrally related to its claim against Ventura. For those reasons, we hold that Exencial is equitably estopped from refusing to arbitrate its claim against Morgan Stanley. The district court’s order denying Morgan Stanley’s motion to compel arbitration is reversed, and this case is remanded with instructions to grant Morgan Stanley’s motion and order Exencial to also arbitrate its claim against Morgan Stanley.1
WHITE v. CRESTWOOD AT THE RIVER
2024 OK CIV APP 28
Case Number: 121992
Decided: 05/09/2024
Mandate Issued: 12/31/2024
¶1 Plaintiffs/Appellants, Mark and Gay White, appeal from the trial court’s orders dismissing Plaintiffs’ petition to quiet title and Plaintiffs’ subsequent motion to reconsider. Defendant/Appellee, Crestwood at the River, LLC, argues that Plaintiffs do not have standing to quiet title the property. For the reasons set forth below, we reverse the trial court’s judgment.
BELLA VISTA VILLAGE v. GOODWIN-ZAPATA
2024 OK CIV APP 27
Case Number: 121447
Decided: 10/31/2024
Mandate Issued: 12/05/2024
¶1 In this forcible entry and detainer (FED) action, Defendants/Appellants, Shanna Goodwin-Zapata, Joe Zapata Jr., and Joe Zapata III (Tenants), appeal from the trial court’s judgment in favor of Plaintiff/Appellee, Bella Vista Village, LLC (Landlord). For the reasons set forth below, we dismiss Tenants’ appeal.
GRAHAM v. REYNOLDS
2024 OK CIV APP 26
Case Number: 122041
Decided: 10/25/2024
Mandate Issued: 11/21/2024
B.J. GOREE, JUDGE:
¶1 Plaintiff/Appellant, Eric Graham of the Eric J. Graham Revocable Trust, seeks review of the February 29, 2024 order of the Delaware County District Court. The district court granted summary judgment to Defendant/Appellee, Adam Reynolds, granting relief in Reynolds’ favor related to the issue of Reynolds’ use of his lake property for short-term rentals. The district court entered its Journal Entry of Judgment with an attendant costs and attorney fee award on June 28, 2024.
¶2 Plaintiff-Graham’s December 22, 2020 Amended Petition sought declaratory and injunctive relief from the district court, asking for a declaration that Reynolds’ short-term vacation rental of his lakefront property violated the housing addition restrictive covenants against “commercial use”. Graham requested a permanent injunction, alleging Reynolds violated the commercial prohibitions in the restrictive covenants, requesting Reynolds be limited to only “residential use” of the property as provided for in the covenants.
¶3 After granting Reynolds’ Motion for Summary Judgment, the district court conducted a June 1, 2024 hearing on the matter of Defendant-Reynolds’ Motion to Tax Costs and Attorney Fees. The court found Reynolds was entitled to recover a reasonable attorney fee to be taxed as costs under the authority provided in 60 O.S. Supp.1986 §856.1 The district court’s June 28, 2024 order awarded Reynolds $35,000.00 in attorney fees and $729.95 in costs, totaling $35,729.95.2
¶4 Graham and Reynolds own houses near one another in the Long Beach Acres Third Addition along Grand Lake in Delaware County, Oklahoma. The Long Beach Acres Addition began development around 1969, which included the implementation of certificates and restrictions on the use of property within the Long Beach Acres Additions. Plaintiff-Graham purchased his property at the lake in 2003. Defendant-Reynolds purchased his lake home in November 2018.
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¶25 The February 29, 2024 appealed order of the Delaware County District Court granting Defendant-Reynolds’ Motion for Summary Judgment is AFFIRMED.
HENDERSON v. DAY ENGINEERING CONSULTANTS
2024 OK CIV APP 25
Case Number: 121534
Decided: 10/09/2024
Mandate Issued: 11/07/2024
¶1 Plaintiff (Glendale Apartments LLC) appeals the district court’s order granting defendants’ (Day Engineering Consultants and Corbin Swain), motion to dismiss plaintiff’s negligence claim. Upon review, we find that the court improperly granted defendants’ motion to dismiss and reverse and remand for further proceedings.
IN THE MATTER OF THE ESTATE OF OAKLEY
2024 OK CIV APP 24
Case Number: 120634
Decided: 06/26/2023
Mandate Issued: 10/24/2024
¶1 Appellant, Meka Oakley, appeals an Order Allowing Final Account, Determining Heirship, Final Decree of Distribution and Discharge entered by the trial court which included an Order denying Appellant’s Motion for Summary Judgment and Motion to Admit Decedent’s Holographic Last Will and Testament. The trial court refused to admit the holographic will to probate after the Parties stipulated to a report prepared by a handwriting expert who indicated that two letter “A’s” included in the holographic will were not written by the decedent. We have reviewed the record, the briefs, and applicable law, and find, in accordance with 84 O.S. § 54, the holographic will at issue was not entirely written by the decedent and, therefore, was properly denied admission to probate by the trial court. The Order of the trial court is, therefore, affirmed.
IN THE MATTER OF C.K.T.
2024 OK CIV APP 23
Case Number: 121602
Decided: 09/11/2024
Mandate Issued: 10/03/2024
¶1 Nicole Blosch1 appeals a trial court order terminating her parental rights to her two minor children, CKT and LLT, after jury verdict. The principal issues in this case involving Indian children are (1) whether the trial court abused its discretion in admitting evidence, (2) whether the State of Oklahoma proved by clear and convincing evidence the elements necessary for termination of Blosch’s parental rights pursuant to 10A O.S. § 1-4-904(B)(5) & (B)(17), and (3) whether State proved beyond a reasonable doubt as required by the Indian Child Welfare Act that her continued custody of the children would result in serious emotional or physical harm to them. After review of the record and applicable law, we conclude Blosch failed to show the trial court abused its discretion in admitting evidence. We further conclude State met its respective burdens, and we affirm the order of the trial court terminating Blosch’s parental rights to CKT and LLT on the ground of failure to correct the condition of “possessing/using illegal drugs/addiction” and the ground of placement in foster care for six of the 12 months preceding the filing of the petition to terminate. We reverse the trial court’s decision to terminate Blosch’s parental rights for failure to correct the conditions of domestic violence and violent behavior because the jury did not find Blosch failed to correct these conditions.2 Accordingly, we affirm the trial court’s order in part and reverse in part.
IN THE MATTER OF J.B.
2024 OK CIV APP 22
Case Number: 122034
Decided: 08/30/2024
Mandate Issued: 09/26/2024
¶1 This appeal arises out of the non-jury trial termination of the parental rights of the appellant, Samantha DeMaro, to her three minor children. Upon review, we find that the court improperly proceeded to a non-jury trial despite Ms. DeMaro’s demand for a trial by jury. We therefore reverse and remand for further proceedings.
SNYDER v. LEAGUE
2024 OK CIV APP 21
Case Number: 121411
Decided: 08/14/2024
Mandate Issued: 09/05/2024
¶1 In this post-paternity action, Appellant/Plaintiff, James Steven Snyder (Father), appeals from the trial court’s journal entry denying Father’s motion for new trial or in the alternative motion to reconsider. Father requested the trial court to reconsider its judgment modifying the court’s emergency custody and visitation order and awarding Appellee/Defendant, Erica Lynn League (Mother), sole custody of the parties’ minor child and reinstating Father’s previous visitation with a few modifications. Father contends the trial court abused its discretion when it denied his motion for a new trial because the court should have entered a judgment granting Father equal-time with the minor child and the court should have issued findings of fact and conclusions of law as mandated by 43 O.S. 2021 §110.1. Father also contends the trial court should have granted a new trial because it erroneously failed to apply 43 O.S. 2021 §112.2(B)(3) and award Father custody due to Mother’s substance abuse. Father also challenges the trial court’s evidentiary rulings when it excluded Father’s evidence of Mother’s substance abuse treatment and when it admitted certain exhibits and hearsay evidence over Father’s objection. We hold §110.1 is inapplicable to this paternity proceeding. We further hold the trial court consider §112.2(B)(3) when it awarded Mother sole custody of the child and reinstated Father’s previously awarded visitation. We finally hold Father failed to show he was prejudiced by the trial court’s evidentiary rulings and that such rulings did not amount to reversible error. Because we hold in this matter, we cannot find the trial court abused its discretion when it denied Father’s motion for a new trial. The trial court’s order and the underlying custody judgment are affirmed.
BROWN v. MULDROW PUBLIC SCHOOLS
2024 OK CIV APP 20
Case Number: 120934
Decided: 07/17/2024
Mandate Issued: 08/09/2024
¶1 Defendant/Appellant, Muldrow Public Schools (“the School District”) has appealed the Journal Entry of Judgment which followed a jury’s verdict and resulted in an award to Plaintiff/Appellee, George Christopher Brown of $125,000.00 in damages and an additional $16,061.74 in costs. The School District alleged error concerning the trial court’s (1) denial of its Motion for a Directed Verdict; (2) denial of three requested jury instructions; and (3) computation and award of damages, fees, and costs. We find the trial court properly denied both the School District’s Directed Verdict and requested jury instructions at issue. We also find that, while the trial court award of damages in the amount of $125,000.00 was correct, the trial court erred in its award of expert costs to Brown in excess of the $125,000.00 damages. We, thus, affirm the trial court’s judgment in part and vacate in part.
WILKIN v. MITCHELL
2024 OK CIV APP 19
Case Number: 121950
Decided: 08/02/2024
Mandate Issued: 08/29/2024
¶1 This dispute arises out of an order that denied a Motion to Compel Arbitration and to Stay Trial Court Proceedings, which had been sought by the Defendant/Appellant, Jack R. Mitchell. Mr. Mitchell was a party to a Confidential Settlement Term Sheet (“Settlement Agreement”) that required repayment of a $1.5 million investment in a project that included two other individuals: i.e., Clain Patterson and Ralph Charles Wilkin, III. When payments were not made in accordance with the terms of the Settlement Agreement, Mr. Wilkin did not pursue this action. This action was brought instead by his spouse, the Plaintiff/Appellee, Melinda Wilkin, alleging a single claim of breach of contract. The Settlement Agreement included a mandatory arbitration clause and Mr. Mitchell moved to compel arbitration. The Settlement Agreement also contained a choice-of-law provision requiring disputes to be resolved under Missouri law. The trial court denied the motion to compel arbitration. We have reviewed the record and find that the trial court committed no error. Consequently, the Order Covering Hearing on January 4, 2024 (“Final Order”), is AFFIRMED.
BACKGROUND
¶2 Ms. Wilkin alleged in her Petition that Mr. Mitchell and River Bend Real Estate Investment, a Missouri limited liability company,1 failed to comply with the terms of a Settlement Agreement that required Mr. Mitchell and River Bend to pay back an investment made by Mr. Wilkin and Mr. Patterson. Mr. Wilkin and Mr. Patterson invested $1.5 million in a business venture with Mr. Mitchell. Mr. Wilkin mortgaged his home in order to generate funds for his portion of the $1.5 million investment. A dispute subsequently arose and Mr. Wilkin, Mr. Patterson, and Mr. Mitchell entered into a Settlement Agreement. The Settlement Agreement recited, in part, that “the Parties were previously working toward a merger of existing operations . . . in multiple legal cannabis markets . . . [and that they] wish[ed] to settle their disputes . . .”. In substance, the Settlement Agreement required Mr. Mitchell to return $1.5 million in capital to Mr. Wilkin and Mr. Patterson. When a payment allegedly was not made in accordance with the terms of the Settlement Agreement, Mr. Wilkin’s spouse, Ms. Wilkin, filed her Petition, on September 8, 2023, alleging a single claim of breach of contract. She asserted that, while she was not a party to the Settlement Agreement, she was a third-party beneficiary of the Agreement. She alleged, in addition, that since Mr. Mitchell stopped making monthly payments as required by the Settlement Agreement, she was in danger of losing her home and Mr. Mitchell should be required to pay off the Wilkins’ mortgage.
¶3 Mr. Mitchell responded to the Petition by filing his Motion to Compel Arbitration and to Stay Trial Court Proceedings. Mr. Mitchell alleged that the Settlement Agreement included a mandatory arbitration clause2 and that Ms. Wilkin should be required to submit to arbitration. The trial court denied Mr. Mitchell’s Motion to Compel Arbitration and Motion to Stay. This timely appeal followed.
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¶12 Mr. Mitchel is unable to compel Ms. Wilkin, as a non-signatory and stranger to the Settlement Agreement, to submit to arbitration because the principles of estoppel do not apply under the facts of this case. Our conclusion would be the same regardless of whether we applied the substantive law of Oklahoma or Missouri. Accordingly, the Final Order, is AFFIRMED.
JOHNSON v. BROWN
2024 OK CIV APP 18
Case Number: 120813
Decided: 03/27/2024
Mandate Issued: 07/11/2024
¶1 Betty Johnson, Barbara Smola, Ruth Crocket, Janice Bako, and Kaye Fife, Trustee of the Lillian Kaye Fife Revocable Trust dated 9/27/2017, individually and derivatively on behalf of Brown, Brown, Wood and Schoelen, Inc. (collectively, Plaintiffs), appeal from trial court orders (1) granting summary judgment in favor of Defendant and Third-Party Plaintiff Joyce K. Brown, as Trustee of the Joyce Brown Trust Dated 12/31/1992, and as Trustee of the Dorsey N. Brown Trust dated 12/31/1992, and (2) granting attorney fees to Defendant. Third-Party Defendants Gloria Shadid and Steve Wood also appeal the order granting summary judgment in favor of Defendant. This appeal has been assigned to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36, 12 O.S.2021, ch. 15, app. 1, and stands submitted without additional briefing. The issue presented is whether the trial court erred in finding no material undisputed fact questions remain and that Defendant is entitled to judgment as a matter of law, and secondarily, whether the trial court properly granted attorney fees to Defendant in the wake of the summary judgment. After review, we conclude it was error to grant summary judgment in favor of Defendant and Third-Party Plaintiff, and we reverse the summary judgment and the attorney fee order.
LIFETOUCH NATIONAL SCHOOL STUDIOS v. OKLAHOMA SCHOOL PICTURES
2024 OK CIV APP 17
Case Number: 120562
Decided: 11/13/2023
Mandate Issued: 07/05/2024
¶1 Lifetouch National School Studios, Inc., appeals the judgment in favor of Oklahoma School Pictures, L.L.C., in this summary proceeding. Lifetouch holds a judgment against Tulsa School Pictures, L.L.C., which it seeks to collect from Oklahoma School Pictures in this action. Lifetouch contends that Tulsa School Pictures is the alter ego or, “mere instrumentality” of Oklahoma School Pictures and argues that disregarding the separate legal existence of Tulsa School Pictures is necessary to protect the rights of third persons and accomplish justice. 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. Viewing the summary judgment record most favorably to Lifetouch, there are unresolved issues of fact regarding the separate existence of Tulsa School Pictures and whether it was the instrumentality of Oklahoma School Pictures. We reverse the judgment in favor of Oklahoma School Pictures and remand for further proceedings to determine that issue.
WILEY v. GRAY TELEVISION
2024 OK CIV APP 16
Case Number: 120797
Decided: 12/07/2023
Mandate Issued: 05/23/2024
¶1 Ernest Wiley appeals the trial court’s summary judgment entered in favor of Gray Television, Inc., aka and/or dba KSWO-TV, Jarred Burk, and Kelvin Mize (collectively, Defendants)1 and its denial of his motion to reconsider which we treat as a motion for new trial. The questions to be addressed on appeal in this libel action are whether summary judgment was granted in error and whether the denial of Wiley’s motion for new trial was an abuse of discretion. We consider this appeal without further briefing pursuant to Oklahoma Supreme Court Rule 1.36, 12 O.S.2021, ch. 15, app. 1. After review, we conclude overruling the motion for new trial was an abuse of discretion because the question of whether the article in question was substantially accurate was for a jury to decide, and granting summary judgment in Defendants’ favor was therefore erroneous. We reverse the orders of the trial court and remand for further proceedings.
SWAIN v. UNITED AUTOMOBILE INSURANCE CO.
2024 OK CIV APP 15
Case Number: 120117
Decided: 12/21/2023
Mandate Issued: 05/09/2024
¶1 United Automobile Insurance Company appeals from a judgment entered upon a jury verdict in which the jury awarded Karen Swain compensatory damages for United’s breach of the covenant of good faith and fair dealing and punitive damages, and the trial court’s award of attorney fees. We reverse and remand with directions to enter judgment for United.
PHIL BOEVERS ENTERPRISES v. BECK
2024 OK CIV APP 14
Case Number: 121053
Decided: 11/09/2023
Mandate Issued: 05/02/2024
¶1 Plaintiff Phil Boevers Enterprises, Inc., appeals the trial court’s orders vacating a default judgment against Defendant Gabriella Beck and vacating a judgment against Garnishee Allstate Fire and Casualty Company. After review, we affirm.
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
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¶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.
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¶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.
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¶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.