Oklahoma Court of Civil Appeals | July 13, 2022


2022 OK CIV APP 26; Case Number: 119378
Decided: 06/07/2022
Mandate Issued: 07/07/2022

¶1 Becky Parker Powers (Spouse) appeals from an order of the district court in this probate proceeding. Based on our review, we affirm.

2022 OK CIV APP 25; Case Number: 119559
Decided: 04/26/2022
Mandate Issued: 06/22/2022

¶1 In this dissolution of marriage proceeding, Petitioner/Appellant/Counter-Appellee, Alison Faith Dancer (Wife), and Respondent/Appellee/Counter-Appellant, Jack Tom Dancer (Husband), both appeal from portions of the trial court’s decree valuing and dividing marital assets and determining separate property. We hold the trial court abused its discretion when it determined the home occupied by the parties during the marriage (marital home) was marital property and when it awarded Husband 75% of the marital home’s value. The marital home is Husband’s separate property, but there is a marital component in the increase in value of the home due to the parties’ efforts, skills or funds during the parties’ twenty-five (25) year marriage. The trial court’s characterization of the marital home as marital property is reversed and remanded. On remand, the trial court shall hold a hearing to determine the increase in value of the marital home in accordance with Theilenhaus v. Theilenhaus1995 OK 5890 P.2d 925, and shall award Wife an equitable share of such increase in value. We further hold the trial court abused its discretion when it failed to award Wife an equitable share post-petition passive increase in value of the Well Fargo Account ending #4203. The trial court’s award of this increase to Husband is reversed and remanded. On remand the trial court is ordered to ascertain and award Wife an equitable share of such passive increase in value. We cannot find the trial court abused its discretion when it denied Husband’s dissipation of marital assets claim. Wife did not dissipate marital assets when she expended marital assets – two (2) years prior to file date of the petition – for mental health care. This portion of the decree is affirmed. We hold the trial court abused its discretion when it awarded Husband an offset of $82,470.00 for Husband’s investment of separate funds in Wife’s marital business. This portion of the trial court’s decree is reversed. The remainder of the decree is affirmed. The trial court’s decree is affirmed in part; reversed in part and remanded for further proceedings consistent with this opinion.

2022 OK CIV APP 24; Case Number: 119168
Decided: 10/19/2021

¶1 Henry Real Estate, LLC (“HRE”) and Tony R. Henry (“Henry”) (the “Appellants”) appeal the trial court’s September 26, 2020 Journal Entry of Judgment in favor of Appellee W. P. Bistro Tulsa, LLC, following a non-jury trial, on the claim of conversion, including the awards for damages, plus interest thereon, and for expenses in connection with the pursuit of the items Appellants converted. This Court holds that there is competent evidence to support the trial court’s judgment in the amount of $105,923.75, jointly and severally, against both Appellants. Accordingly, the trial court’s September 26, 2020 Journal Entry of Judgment is affirmed.

2022 OK CIV APP 23, Case Number: 119396
Decided: 05/19/2022
Mandate Issued: 06/15/202

The plaintiffs, Gardner Tanenbaum, LLC, and Lincoln Road Apartments II, LLC (collectively, “Tanenbaum”), appeal a summary judgment granted to defendants, The Benham Companies, LLC, SAIC Energy Environment & Infrastructure, LLC, and SAIC Constructors, LLC (collectively, “Benham”).1 Tanenbaum argues that the district court erred in finding that Tanenbaum had no recoverable damages. We find that Tanebaum’s claims for lawsuit and settlement damages are indeed recoverable, though disgorgement is unavailable. Accordingly, the trial court’s judgment against Tanenbaum is vacated and the matter is remanded for further proceedings. Benham’s counter-appeal, which argues that the trial court should have granted a separately filed motion for summary judgment in which Benham urges judgment on a separate theory, is dismissed.

2022 OK CIV APP 22, Case Number: 119325
Decided: 09/30/2021
Mandate Issued: 06/15/2022

¶1 Robins & Morton Corporation (R&M) seeks review of the trial court’s denial of a Motion to Compel Mediation and, if Necessary, Arbitration and Dismiss or, Alternatively, Stay Litigation. The dispositive issue is whether a mandatory arbitration provision in a construction management contract between The Choctaw Nation of Oklahoma (Nation) and R&M is void under 12 O.S. § 1855(D) because the construction management contract–the primary purpose of which was to engage R&M to oversee and coordinate the construction of a medical center–contains provisions regarding insurance. Because the construction management contract does not reference insurance in the manner intended by Section 1855(D), the arbitration provision is not void under Section 1855(D). Therefore, we reverse the trial court’s denial of R&M’s motion and remand for proceedings consistent with this Opinion.

2022 OK CIV APP 21, 119832
Decided: 05/06/2022
Mandate Issued: 06/02/2022

¶1 The parties dispute whether the location, use, and actual necessity of disposal wells exempts the disposal wells at issue from ad valorem taxation. Oklahoma Supreme Court precedent in Cumberland ¶1 Plaintiff/Appellant, Waldo Hernandez, appeals from the trial court’s dismissal of his retaliatory discharge action against Defendant/Appellee, Educational Development Corp. The trial court held the Workers’ Compensation Commission, rather than the district court, has jurisdiction over Plaintiff’s claim. We affirm.

2022 OK CIV APP 20, 118868
Decided: 07/23/2021
Mandate Issued: 06/02/2022

¶1 This case concerns alleged damages to trees, vines, hay and crops. Plaintiffs/Appellants, Mack Coy Hayes, OkeOzark Wine, LLC, Roy Dale Kelly, and Co-Trustees of the Cagle Revocable Trust (“Plaintiffs”), appeal judgments rendered in favor of Defendants/Appellees, Northeast Oklahoma Electric Cooperative, Inc. and Northeast Rural Services, Inc. (“Defendants” or “NEOEC” and “NRS”). Plaintiffs alleged that their property was damaged and profits were lost as a result of Defendants’ trespassing and negligence. NEOEC is a not-for-profit cooperative and NRS is a subsidiary of NEOEC. In order to protect their equipment, Defendants must cut, trim, or use pesticides to kill trees and brush that could damage their power lines. During September of 2014, Defendants sprayed herbicide on or near Plaintiffs’ land in order to maintain their power line rights of way. Plaintiffs averred that when Defendants sprayed the herbicide, they did so negligently and allowed the herbicide to drift onto Plaintiffs’ property. Plaintiffs further alleged that their property was damaged or destroyed as a proximate cause of Defendants’ actions.

¶2 Prior to trial, the trial court granted summary judgment in favor of NRS. During trial, the trial court granted a directed verdict dismissing OkeOzark’s claim for damages. After approximately twelve days of trial, a jury rendered a verdict in favor of NEOEC. Plaintiffs filed a motion for new trial which was denied. Defendants were awarded attorney’s fees and costs in the amount of $375,192.25. We find that the trial court committed error by admitting into evidence the ODA Reports that constituted inadmissible hearsay. As a result, we reverse the decision granting summary judgment to NRS. We affirm the directed verdict against OkeOzark. We vacate the jury verdict in favor of NEOEC, and we vacate the award of attorney fees and costs in the amount of $375,192.25. Regarding the jury instructions, we find that it was error for the trial court to refuse to provide a separate verdict form on the theory of ultrahazardous or abnormal activity, but not error to refuse a verdict form with respect to wrongful injury to timber or to instruct on the theory of res ipsa loquitur. The matter is remanded to the trial court for a new trial.

2022 OK CIV APP 19, 118161
Decided: 07/19/2021
Mandate Issued: 06/02/2022

¶1 Plaintiff Maria Lopez-Velazquez, individually and on behalf of Aurora Velazquez, a minor, appeals from the trial court’s judgment memorializing a jury verdict in favor of Defendant Alejandra Guitierrez De Alcala. After review of the record and the parties’ arguments, we reverse and remand for further proceedings.