Vol. 1 | No. 5 | Feb. 3, 2021
Supreme Court of Oklahoma
¶0 The plaintiff/appellee, Warehouse Market subleased a commercial building from the defendant Pinnacle Management, Inc. The building is on federally restricted Indian land. Subsequently, the defendant/appellant, Oklahoma Tax Commission (OTC) and the Muscogee (Creek) Nation Office of Tax Commission (Tribe) both sought to collect sales tax from Warehouse Market. Warehouse Market filed an interpleader action in the District Court of Okmulgee County, in an attempt to have the court determine which entity to pay. However, the trial court dismissed the Tribe because it had no jurisdiction over it because of the Tribe's sovereign immunity. The trial court then determined that the OTC could not be entitled to the sales tax unless and until the dispute between the OTC and the Tribe was resolved in another forum or tribunal. The OTC appealed and we retained the appeal. We hold that because the substance of Warehouse Market's action/request for relief is a tax protest, exhaustion of administrative remedies is a jurisdictional prerequisite to seeking relief in the trial court.
MOTION TO RETAIN PREVIOUSLY GRANTED TRIAL COURT REVERSED AND REMANDED WITH INSTRUCTIONS.
Darby, C.J., Kauger, Edmondson, Combs, Gurich and Rowe, JJ., concur; Kane, V.C.J. and Winchester, J. (by separate writing) concur in result.
Court of Criminal Appeals in the State of Oklahoma
Krysta Nicole Thompson v. State of Oklahoma
On October 12, 2017, Appellant Thompson entered guilty plea in Carter County Case No. CF-2017-65. Sentencing was deferred pending Thompson’s completion of drug court. On August 1, 2019, the State filed its second Application to Terminate Thompson from drug court. On December 5, 2019, the Honorable Thomas K. Baldwin, Associate District Judge, terminated Thompson’s drug court participation and sentenced her as specified in her plea agreement. From this judgment and sentence Thompson appeals. Thompson’s termination from Drug Court is AFFIRMED.
OPINION BY: Lewis, J.; Kuehn, P.J., concurs; Rowland, V.P.J., concurs; Lumpkin, J., concurs; Hudson, J., concurs. 1/28/2021
State of Oklahoma v. Kelvin Wayne Allen and Tami Leann Ware
State of Oklahoma, Appellant, charged Kelvin Wayne Allen, Appellee, by Information in the District Court of Craig County, Case No. CF–2018–25, with Child Neglect (Count 1) and Conspiracy to Commit Child Neglect (Count 2). The State charged Tami Leann Ware, Appellee, by Information in the District Court of Craig County, Case No. CF–2018–26, with the same crimes, i.e., Child Neglect (Count 1) and Conspiracy to Commit Child Neglect (Count 2). At preliminary hearing, the magistrate bound Allen and Ware over on both counts as charged. Allen and Ware thereafter filed motions to quash both counts in their respective cases, arguing an unborn fetus was not a “child” subject to protection under the child neglect statute. The Honorable Shawn S. Taylor, District Judge, granted both motions, finding a fetus was not a “child” subject to protection under the child neglect statute. Appellant, State of Oklahoma, now appeals. The ruling of the District Court sustaining Appellee's motions to quash is REVERSED. This case is REMANDED for further proceedings not inconsistent with the Opinion. OPINION BY: Hudson, J.; Kuehn, P.J., concurs; Rowland, V.P.J., concurs; Lumpkin, J., specially concurs; Lewis, J., concurs in results. 1/28/2021
State of Oklahoma v. J.D.L
JS-2020-335
On January 13, 2020, Appellee was charged pursuant to the Youthful Offender Act with Assault and Battery with a Deadly Weapon, Assault and Battery with a Deadly Weapon, Use of a Motor Vehicle to Facilitate the Intentional Discharge of a Firearm, Possession of a Firearm after Former Juvenile Adjudication, and Receiving or Concealing Stolen Property in Oklahoma County District Court Case No. CF-2020-122. The State filed a Motion for Imposition of an Adult Sentence. The motion was heard and denied on May 8, 2020. The State appeals. The denial of the State’s Motion for Imposition of an Ault Sentence is REVERSED and this case is REMANDED to the District Court of Oklahoma County. OPINION BY: Rowland, V.P.J.; Kuehn, P.J., dissents; Lumpkin, J., concurs; Lewis, J., dissents; Hudson, J., concurs. 1/28/2021
Jacob Benjamin Jenuine v. State of Oklahoma
Jacob Benjamin Jenuine, Appellant, was tried by jury for the crime of First Degree Rape in Case No. CF-2018-53 in the District Court of Pushmataha County. The jury returned a verdict of guilty and recommended as punishment Five years imprisonment along with twelve years post-imprisonment supervision. The trial court sentenced accordingly. From this judgment and sentence Jacob Benjamin Jenuine has perfected his appeal. Judgement and Sentence is AFFIRMED, motion for evidentiary hearing is DENIED, and Mandate is Ordered. OPINION BY: Lumpkin, J.; Kuehn, P.J., Concurs in part/Dissents in parts; Rowland, V.P.J., Concurs in Results; Lewis, J., Concurs in Results; Hudson, J., Concurs. 1/28/2021
Court of Civil Appeals in the State of Oklahoma
DIVISION II
ACCIDENT CARE AND TREATMENT CENTER, INC., Plaintiff/Appellee, v. CSAA GENERAL INSURANCE COMPANY d/b/a AAA INSURANCE COMPANY
118932 | Decided: 12/30/2020
118932 | Decided: 12/30/2020
Mandate Issued: 01/27/2021
Companion w/ 118933; 118934; 118935
¶1 This appeal concerns an action to enforce and foreclose a medical service lien. The trial court granted partial summary judgment to Appellee Accident Care and Treatment Center, Inc. (Accident Care) against Appellant CSAA General Insurance Company d/b/a AAA Insurance Company (CSAA) and denied CSAA's motion for rehearing.1 We reverse and remand for further proceedings.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS
SUMMARIES OF OPINIONS NOT FOR PUBLICATION
COURT OF CIVIL APPEALS
DIVISION I
118,377 -In Re the Marriage of Bowen: S.C. Bowen, Plaintiff/Appellant, vs. C.M. Bowen, Defendant/Appellee. Appeal from the District Court of Tulsa County, Oklahoma. Honorable James R. Huber, Judge. Plaintiff/Appellant S.C. Bowen (Husband) appeals from an order disqualifying one of his attorneys, Christopher Camp (Camp), in Husband’s divorce case against Defendant/Appellee C.M. Bowen (Wife). After the parties separated but prior to the petition for dissolution of marriage, Camp, a family friend, ghostwrote communication for Wife in an attempt to resolve a visitation issue between the parties. We find no clear errors of fact and no errors of law. We further find the court’s order and the record it created sufficiently establish the factual and legal findings that serve as the basis for the court’s ruling. We AFFIRM. Opinion by MITCHELL, J.; PRINCE, J., concurs, and GOREE, P.J., specially concurs. 2/1/2021
117,924 - Kelly Ward, d/b/a/ K & B Oil Company, Plaintiff/Appellee, v. James C. Ward, Jr. Individually, and James C. Ward, trustee of the Thelma Jean Ward Revocable Trust, and Audie Marie Chandler and Judith Lynn Ward, as Personal Representative of the Estate of Thomas Eugene Ward, Deceased, Defendants/ Counter-Claimants/Appellants, v. Kelly Ward, Counter-Defendant/Appellee. Appeal from the District Court of Pittsburg County, Oklahoma. Honorable Tim Mills, Judge. In an action to dissolve a partnership and involving a trust that claims some interest thereto, Kelly Ward d/b/a K & B Oil Company (K & B), Plaintiff below, and James C. Ward, Jr. (Jim), individually and as trustee of the Thelma Jean Ward Revocable Trust (Trust), Audie Marie Chandler, and Judith Lynn Ward as personal representative of the estate of Thomas Eugene Ward, Defendants below, appeal the Pittsburg County Order addressing issues concerning the management of K & B and their mother's Trust. The order dissolved the partnership and Trust, directed trustee to deliver Trust funds to Kelly, awarded Kelly management fees, and denied Defendants’ claims for damages. Because the trial court found the Revised Uniform Partnership Act, 54 O.S. §1-100 et seq. (RUPA), applied, but failed to follow the Act in its consideration of several of the claims, we AFFIRM IN PART, REVERSE IN PART, AND REMAND WITH INSTRUCTIONS. Opinion by GOREE, P.J., MITCHELL, J., and PRINCE, J., concur. 1/27/2021
DIVISION III
118,484 - Bruce Davis, Plaintiff/Appellant, vs. BOKF, NA, American Fidelity Assurance Company, and Dearborn National Life Insurance Company, Defendants/Appellees. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Jefferson Sellers, rial Judge. Plaintiff/Appellant Bruce Davis (Davis) appeals from an order granting summary judgment in favor of Defendants/Appellants American Fidelity Assurance Company (American Fidelity), Bank of Oklahoma (BOK), and Dearborn National Life Assurance Company (Dearborn) (collectively Defendants) in a breach of contract action related to his employment with BOK. Davis argues that Defendants did not produce probative credible evidence in support of their motions for summary judgment, and that there remained questions of fact precluding summary judgment. In response, Dearborn and American Fidelity argue that there was no claim or contract with Davis, and therefore, there could not have been a breach of contract. BOK argues that Davis was not eligible for coverage, and that he had no valid claim against BOK. We AFFIRM. Opinion by SWINTON, C.J.; PEMBERTON, P.J., and BELL, J., concur. 1/28/2021
118,767 -Michael Armand Hammer, Plaintiff/Appellant, vs. Speedsportz, LLC, Defendant/Appellee, vs. John Reaves, Defendant. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Rebecca Brett Nightingale, Trial Judge. This appeal concerns the trial court’s interlocutory order for Appellant Michael Armand Hammer to return a disputed Bentley to Appellee Speedsportz, LLC, upon this Court’s previous determination to reverse a summary judgment order awarding the Bentley to Appellant. Appellant contends the evidence presented before the trial court did not support the trial court’s determination to order the return of the Bentley to Appellee. The decision below is reviewed for an abuse of discretion. A trial court abuses its discretion when it bases its decision on an erroneous conclusion of law or there is no rational basis in the evidence for the ruling. More specifically, an abused judicial discretion is manifested when discretion is exercised to an end or purpose not justified by, and clearly against, reason and evidence. It is discretion employed on untenable grounds or for untenable reasons, or a discretionary act which is manifestly unreasonable. The trial court’s order was not against reason or evidence and was not at all manifestly unreasonable. Therefore, the trial court did not abuse its discretion. We AFFIRM. Opinion by PEMBERTON, P.J. SWINTON, C.J., concurs; BELL, J., dissents. 1/28/2021
118,036 -In Re the Marriage of McGee: Caroline McGee, Petitioner/Appellee, vs. Rocky R. McGee, Respondent/Appellant. Appeal from the District Court of Creek County, Oklahoma. Honorable Pamela B. Hammers, Trial Judge. Respondent/Appellant Rocky McGee (Husband) appeals from an order awarding support alimony to Petitioner/Appellee Caroline McGee (Wife) in a divorce action. The parties resolved all issues through agreement except alimony, which was determined by the trial court following a trial. Husband argues that Wife did not demonstrate her need for support alimony. We AFFIRM. Opinion by SWINTON, C.J.; PEMBERTON, P.J., and BELL, J., concur. 1/29/2021
118,543 - Texas Mutual Insurance Company, Petitioner/Appellant, v. Elbert Garlington, Respondent/Appellee, and ANR Transport and The Workers Compensation Commission, Respondents. Proceeding to review an Order of the Workers’ Compensation Commission En Banc. Petitioner/Appellant, Texas Mutual Insurance Company (TMIC), appeals the Workers’ Compensation Commission’s (Commission) order affirming an administrative law judge’s denial of TMIC’s motion to dismiss for lack of personal jurisdiction, lack of subject matter jurisdiction, and improper venue. Because TMIC does not have the requisite minimum contacts with Oklahoma and has not otherwise engaged in continuous and systematic contacts, the Commission lacks personal jurisdiction over TMIC. Therefore, we reverse the Commission’s order affirming the denial of TMIC’s motion to dismiss. Opinion by PEMBERTON, P.J.; SWINTON, C.J., and BELL, J., concurs. 1/27/2021
118,632 - In The Matter of D.H. and D.H., Alleged Deprived Children. The State of Oklahoma, Petitioner/Appellee, v. Latrese Hammons, Respondent/Appellant. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Lydia Green, Trial Judge. Respondent/Appellant Latrese Hammons appeals from an order terminating her parental rights to D.H. and D.H. (Children). Children were first adjudicated deprived in 2016. Hammons corrected conditions and Children were returned to Hammons’s custody in 2018. In 2019, Children were again removed from Hammons’s home and Petitioner/Appellee the State of Oklahoma sought to terminate Hammons’s parental rights for failure to correct the conditions that had led to the previous deprived adjudication. Following a jury trial, Hammons’s parental rights to Children were terminated for failure to correct the conditions of lack of proper parental care, substance abuse, and threat of harm. Clear and convincing evidence supports termination and we AFFIRM. Opinion by SWINTON, C.J.; BELL, J. and PRINCE, J. (sitting by designation) concur. 1/28/2021
DIVISION IV
117,608 (Companion with Case No. 118,024) — Stamps Brothers Oil & Gas, LLC, a limited liability company, Plaintiff/Appellee, vs. Western Oil & Gas Development Corp., a corporation, Defendant/Appellant. Appeal from an Order of the District Court of Grady County, Oklahoma, Honorable Kory Kirkland, Trial Judge, in favor of Plaintiff, Stamps Brothers Oil & Gas, LLC (Stamps), in Stamps’ action to quiet title to certain oil and gas leases of Western Oil & Gas Development Corp. (Western) in Grady County. The evidence was conflicting on virtually every issue presented by the parties concerning expenses, revenue, and equitable considerations related to whether the Jackson 1-27 well had failed to produce in paying quantities for an unreasonable period of time. The trial court’s judgment finding that the base leases of the well’s operator, Western, terminated pursuant to their respective habendum clauses, and quieting title in Stamps, is not against the clear weight of the evidence. We further find, pursuant to Hall v. Galmor, 2018 OK 59, 427 P.3d 1052, that because the Jackson 1-27 is not a shut-in gas well but is actually producing in less than paying quantities, the well has ceased production, and by virtue of that status is not capable of production in paying quantities. Accordingly, we affirm the trial court’s judgment as corrected in our Opinion. AFFIRMED AS CORRECTED. Opinion from the Court of Civil Appeals, Division IV, by THORNBRUGH, P.J.; WISEMAN, C.J., and HIXON, J., concur. 1/29/2021
118,024 (Companion with Case No. 117,608) — Stamps Brothers Oil & Gas, LLC, a limited liability company, Plaintiff/Appellee, vs. Western Oil & Gas Development Corp., a corporation, Defendant/Appellant. Appeal from an Order of the District Court of Grady County, Oklahoma, Honorable Kory Kirkland, Trial Judge. This is a fee appeal that arose from companion case No. 117,608. In that appeal, Stamps brought a quiet title action in August 2016, claiming ownership of certain oil and gas leases. We find two principles clear: 1) After Plaintiff Stamps filed a quiet title suit, any counterclaim by Defendant Western for quiet title against Stamps involving the same property was a mandatory counterclaim;
2) Western could not, therefore, send effective Nonjudicial Marketable Title Procedures Act notice and file a counterclaim seven months into the litigation. As a result, the quiet title suit never became fee bearing, and no award of fees was available to either party as a matter of law. We remand this issue to the district court for calculation of the proper costs available to Stamps as a prevailing party pursuant to 12 O.S.2011, § 942. REVERSED AND REMANDED. Opinion from the Court of Civil Appeals, Division IV, by THORNBRUGH, P.J.; HIXON, J., concurs, and WISEMAN, C.J., concurs in result. 1/29/2021
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Thu
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10
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11
Family Law Section Meeting/CLE
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What Is Your Cybersecurity Defense Plan for 2025?
By Jim Calloway The Oklahoma Rules of Professional Conduct offer guidance and rules for lawyers confronting ethical challenges. Technological advances often progress more quickly than legislative or regulatory responses to these developments. So where technology is involved, some of our ethical obligations tend to change and evolve before any new rules can be written. For…
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