Vol. 1 | No. 1 | Jan 6, 2021
Supreme Court of Oklahoma
2020 OK 112, SCAD-2020-120 Decided 12/29/2020
Pursuant to the State Travel Reimbursement Act, 74 O.S. Section 500.4, reimbursement for authorized use of privately owned motor vehicles shall not exceed the amount prescribed by the Internal Revenue Code of 1986, as amended (26 U.S.C.A. section 1 et. seq.) For 2021, the standard business mileage rate prescribed by the Internal Revenue Service is $.56 cents per mile.
Therefore, the 2021 mileage rate which is reimbursed by the court fund, including, but not limited to jurors, interpreters and witnesses, shall be computed at $.56 cents per mile.
2020 OK 111, SCAD-2020-119Decided 12/17/2020
Position Description: The Official Court Reporter is an officer of the court who is responsible for making a stenographic record of district court proceedings and producing official transcripts of those proceedings as requested. The Official Court Reporter is an at-will position, generally hired by and reporting to a judge of the District Court, but may also be assigned to assist other judges or other courtrooms. Some Official Court Reporter positions are "pool positions" which serve several judges as needed. Salary is governed by statute and salary schedule, and pay increases are not tied to length of service.
¶0 Petitioner/Appellant Ty L. Rader ("Father") appeals from the trial court's order finding Kansas has exclusive, continuing child custody jurisdiction and that Oklahoma does not have jurisdiction to make an initial child custody determination under Oklahoma's Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), 43 O.S.2011 §§ 551-101 to 551-402. We hold that because the Kansas child custody proceeding was dismissed by the parties, it was of no effect in the present matter, and the Oklahoma judge erred in failing to determine whether or not Oklahoma had become the minor child's new home state under the UCCJEA at the commencement of this proceeding. We reverse the part of the trial court's order finding the Oklahoma court does not have jurisdiction over child custody and remand to the trial court to consider whether or not Oklahoma became the minor child's new home state, and, if so, to consider Respondent/Appellee Brenda Y. Rader's ("Mother") forum non conveniens argument, pursuant to 43 O.S. § 551-207 . If Petitioner fails to establish Oklahoma as the new home state, the trial judge shall transfer the matter to Kansas, pursuant to the UCCJEA.
2020 OK 110, 118689 Decided 12/15/2020
¶0 The owner of real property and a construction company filed an action in District Court against the insurer of the property and alleged related insurer entities. Defendants (insurer) filed a motion to dismiss or in the alternative motion for summary judgment, argued an insurance policy may not be assigned, and sought dismissal of the construction company as a party. The Honorable Cindy H. Truong, District Judge, granted the defendants' motion, and the construction company appealed. Defendants filed a motion for the Oklahoma Supreme Court to retain the appeal and the motion was granted. We hold a post-loss insured's assignment of a property insurance claim was an assignment of a chose in action, and not an assignment of the policy. Insurer's motion to dismiss the appeal is denied. DISTRICT COURT ORDER REVERSED AND CAUSE REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THE COURT'S OPINION; APPELLEES' MOTION TO DISMISS DENIED
Court of Criminal Appeals in the State of Oklahoma
2020 OK CR 23, F-2019-488Decided 12/03/2020
¶1 Appellant, David Christopher Cochlin, was tried by jury in the District Court of Canadian County, Case No. CF-2018-53, and convicted of two counts of Second Degree (Depraved Mind) Murder, in violation of 21 O.S.2011, § 701.8 . The jury recommended punishment of life imprisonment on both counts. 1 The trial court sentenced Appellant accordingly and ordered the sentences to run concurrently with one another. From this judgment and sentence, Appellant appeals.
¶1 Dustin Melvin Davison, Appellant, was tried by jury and found guilty of first degree murder, in violation of 21 O.S.Supp.2012, § 701.7 (C), in the District Court of Oklahoma County, Case No. CF-2015-3992. The jury found as aggravating circumstances that the murder was especially heinous, atrocious, or cruel, and that there exists a probability that Appellant would commit criminal acts of violence that would constitute a continuing threat to society, and sentenced him to death. The Honorable Cindy H. Truong, District Judge, pronounced judgment and sentence accordingly. Mr. Davison appeals.
¶1 James Mahdavi, hereinafter "Appellant", was tried and convicted at a jury trial in Tulsa County District Court, Case No. CF-2016-6320, of two counts of Murder in the First Degree, in violation of 21 O.S.Supp.2012, § 701.7 (A). The jury recommended sentences of life imprisonment without the possibility of parole for both counts. The Honorable William J. Musseman, Jr., District Judge, presided at trial and sentenced Appellant in accordance with the jury's verdicts. Judge Musseman ordered the sentences to run consecutively. Appellant now appeals.
On the 31st day of December, 2020 the following summary opinions was delivered to the Clerk:
IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA
DAVID LESTER MARTINEZ v. THE STATE OF OKLAHOMA
Appellant entered a plea of no-contest to Uttering Two Or More Bogus Checks Together Over Felony Limit in Jackson County Case No. CF-2006-73 and was sentenced to three years with all but the first seventy-five days suspended. Appellant entered a plea of guilty to Unauthorized Use of a Vehicle in Case No. CF-2006-209 and was sentenced to fifteen years with all but the first ten years suspended. The State filed a Motion to Revoke Suspended Sentence in both cases. Following an October 2, 2019, revocation hearing the trial court revoked Appellant’s remaining suspended sentence. Appellant appeals. The revocation is AFFIRMED. OPINION BY: Hudson, J.; Lewis, P.J., Concurs; Kuehn, V.P.J., Concurs; Lumpkin, J., Concurs; Rowland, J., Concurs.
SUMMARY OPINION DENYING CERTIORARI
DAVID MITCHELL CURETON v. THE STATE OF OKLAHOMA
Case No. C-2020-238
DAVID MITCHELL CURETON, Petitioner, entered a blind plea of guilty in Case No. CF-2017-4232, in the District Court of Oklahoma County, to the crimes of Aggravated Possession of Obscene Materials Involving the Participation of Minors Under 18 (Counts 1-2, 5-8, 11, 13-17, 19-20); Possession of Obscene Material Involving the Participation of Minors Under 18 (Counts 3-4, 9-10, 12, 18); and Distributing Child Pornography (Count 21). Petitioner’s sentencing was delayed, to conduct a presentence investigation. After a hearing, the Honorable Heather E. Coyle, District Judge, sentenced Petitioner to forty years imprisonment each on Counts 1-2, 5-8, 11, 13-17 and 19-20 (Aggravated Possession of Obscene Materials Involving the Participation of Minors Under 18), twenty years imprisonment each on Counts 3-4, 9-10, 12 and 18 (Possession of Obscene Material Involving the Participation of Minors Under 18); and twenty years imprisonment on Count 21 (Distributing Child Pornography). Judge Coyle ordered the sentences for all twenty-one counts to run concurrently, imposed various costs and fees, imposed a term of post-imprisonment supervision, and ordered credit for time served. Petitioner through plea counsel filed a motion to withdraw his guilty pleas. After a hearing, Judge Coyle denied Petitioner’s motion to withdraw. Petitioner now seeks a writ of certiorari. The Petition for Writ of Certiorari is The Judgment and Sentence of the District Court is AFFIRMED. OPINION BY: Hudson, J.; Lewis, P.J., Concurs; Kuehn, V.P.J., Concurs; Lumpkin, J., Concurs in Results; Rowland, J., Concur.
SUMMARY OPINION DENYING CERTIORARI
TY DILLON HAYNES v. THE STATE OF OKLAHOMA
Case No. C-2019-877
TY DILLON HAYNES, Petitioner entered a plea of guilty in the District Court of Seminole County, Case No. CF-2016-287, to Count 1: Uttering Forged Instrument and Count 2: Conspiracy to Commit a Felony. Sentencing was delayed while Petitioner was committed to the Delayed Sentencing Program for Young Adults. After completing the program, Petitioner’s sentences were ordered deferred, by the Honorable George W. Butner, District Judge. Petitioner’s deferred sentences were subject to his compliance with supervised rules and conditions of probation. The State thereafter filed an application to accelerate Petitioner’s deferred sentences which was later dismissed at the State’s request. The State filed a second application to accelerate and Petitioner stipulated to the State’s application. The Honorable Timothy Olsen, District Judge, accepted this stipulation and sentenced Petitioner to a negotiated sentence of four years imprisonment each on Counts 1 and 2. Judge Olsen ordered the sentences for both counts to run concurrently, imposed various costs and fees as well as a one-year term of post-imprisonment supervision, and ordered credit for time served. Petitioner through counsel filed a motion to withdraw his guilty pleas. The motion alleged simply that Petitioner’s plea “was entered through inadvertence, ignorance, mistake, or coercion.” After a hearing, Judge Olsen denied Petitioner’s motion to withdraw. Petitioner now seeks a writ of certiorari. The Petition for Writ of Certiorari is DENIED. The Judgment and Sentence of the District Court is AFFIRMED. OPINION BY: Hudson, J.; Lewis, P.J., Concurs; Kuehn, V.P.J., Concurs in Results; Lumpkin, J., Concurs in Results; Rowland, J., Concurs.
BRANDON LAMONT JENKINS v. THE STATE OF OKLAHOMA
Case No. F-2019-700
BRANDON LAMONT JENKINS, Appellant, was tried by jury in Case No. CF-2018-4136, in the District Court of Tulsa County for the crimes of crimes of Count 1: Trafficking in Illegal Drugs, After Former Conviction of Two or More Felonies; Count 6: Possession of a Firearm While in the Commission of a Felony, After Former Conviction of Two or More Felonies; Count 8: Eluding a Police Officer; and Count 9: Obstructing an Officer. The jury returned a verdict of guilty and recommended as punishment Count 1—: twelve years imprisonment; Count 6—twenty years imprisonment; Count 8—six months imprisonment; and Count 9—one year imprisonment. The Honorable Kelly Greenough, District Judge, sentenced Jenkins in accordance with the jury’s verdicts, and imposed various costs and fees. Judge Greenough ordered the sentences for Counts 1, 8, and 9 to run concurrently, and the sentence for Count 6 to run consecutively to Count 1. From this judgment and sentence BRANDON LAMONT JENKINS has perfected his appeal. AFFIRMED. OPINION BY: Hudson, J.; Lewis, P.J., Concurs; Kuehn, V.P.J., Concurs; Lumpkin, J., Concurs; Rowland, J., Concurs.
TRACY GENE PRICE v. THE STATE OF OKLAHOMA
Case No. F-2018-1296
TRACY GENE PRICE, Appellant, was tried by jury for the crimes of Count 1: Kidnapping and Count 2: Murder in the First Degree, in Case No. CF-2017-5195, in the District Court of Tulsa County. The jury returned a verdict of guilty and recommended as punishment thirty years imprisonment on Count 1; and life imprisonment without the possibility of parole on Count 2. The Honorable William J. Musseman, Jr. dismissed Count 1 on grounds of merger and sentenced Appellant in accordance with the jury’s verdict on Count 2. From this judgment and sentence TRACY GENE PRICE has perfected his appeal. AFFIRMED. OPINION BY: Hudson, J.; Lewis, P.J., Concurs; Kuehn, V.P.J., Concurs; Lumpkin, J., Concurs; Rowland, J., Concurs.
Q.C. v. The State of Oklahoma
Case No. J-2020-543
On August 5, 2020, in Okfuskee County District Court Case No. JDL-2019-1, Appellant was adjudicated a delinquent by the Honorable Maxey P. Reilly, Associate District Judge after finding him guilty of first-degree arson following a non-jury trial. The adjudication is AFFIRMED. OPINION BY: Rowland, J.; Lewis, P.J., concurs; Kuehn, V.P.J., concurs in results; Lumpkin, J., concurs; Hudson, J., concurs.
Court of Civil Appeals in the State of Oklahoma
GOVERNOR KEVIN STITT APPOINTS JUDGE THOMAS E. PRINCE TO COURT OF CIVIL APPEALS
Governor Kevin Stitt announced the appointment of Judge Thomas E. Prince to the Oklahoma Court of Civil Appeals. This is the governor’s third appointment to the Court.
“I am truly honored Governor Stitt would appoint me to the Court of Civil Appeals,” Prince said. “As I have done as a District Judge, I will strive to rule according to the law in each case, to apply the law as written and to not favor any person, group or entity over another. I look forward to serving the people of the State of Oklahoma in this position.”
AHLSTROM v. CAMPBELL REAL ESTATE
2020 OK CIV APP 70, 118070
¶1 Laura Ahlstrom and Jason Bleecher (Tenants) appeal the trial court's August 19, 2019 Journal Entry denying their Motion to Vacate or Modify Judgment. Based on our review of the record and applicable law, we reverse and remand for further proceedings consistent with this Opinion.
V.C.B. v. STATE
2020 OK CIV APP 69, 118068
¶1 Petitioner V.C.B. appeals a decision of the district court denying expungement based on the court's interpretation of the applicable date of successful completion of a deferred sentence pursuant to the expungement statute. On review, we find the district court erred in its interpretation of the statute, and reverse.
STEWART v. GONZALEZ
2020 OK CIV APP 67, 117460
¶1 Robert Todd Stewart, Plaintiff/Appellee, filed a negligence action against Giovanni Gonzalez and Kaylee Smedley, Defendants/Appellants, for injuries arising from a motor vehicle accident in Tulsa. Gonzalez was driving Smedley's vehicle when he rear-ended Plaintiff's vehicle. Defendants made an offer to confess judgment pursuant to 12 O.S. §1101 in the amount of $5,000. Plaintiff did not accept the Defendants' offer and proceeded to trial wherein the jury awarded Plaintiff $3,180.28 in damages for medical bills. Defendants moved for the court to tax Plaintiff the costs incurred after the Defendants' offer to confess judgment per §1101. The court denied Defendants' motion and instead awarded Plaintiff $1,169.66 for costs. Defendants appeal this award of costs to Plaintiff.
ROSS v. CITY OF OWASSO
2020 OK CIV APP 66, 117321
¶1 Patrick D. Ross appeals a decision of the district court finding that, pursuant to the Open Records Act, the City of Owasso properly refused disclosure of a record known as the "Fortney Report." On review, we reverse the judgment of the district court in this matter, and hold that City failed to meet its burden under the Act to show why the Report should not be made available. We remand this matter with instructions to the district court to order City to comply with Ross's open record request regarding the "Fortney Report."
IN RE THE MARRIAGE OF COLLINS
2020 OK CIV APP 65, 117044
¶1 Richard Ducote (Attorney) appeals the trial court's April 30, 2018, order denying a motion to associate Attorney, an out-of-state lawyer, to practice before the Rogers County District Court. Based on our review of the facts and applicable law, we affirm in part and reverse in part. 1
FRANCO v. STATE ex rel. BD. OF REGENTS OF UNIVERSITY OF OKLA.
2020 OK CIV APP 64, 116876
¶1 The Board of Regents of the University of Oklahoma appeals a judgment entered on a jury verdict in favor of Dr. Kenneth L. Franco in this breach of contract case. Because Dr. Franco failed to prove that he entered into a contract with the University, Dr. Franco's breach of contract claim fails as a matter of law. Dr. Franco's claim should not have been submitted to the jury. Therefore, the Judgment in favor of Dr. Franco is reversed, and this case is remanded with instructions to enter judgment for the Board of Regents of the University of Oklahoma.
IN THE COURT OF CIVIL APPEALS, STATE OF OKLAHOMA, DIVISIONS II, III AND IV OPINIONS
118,899 - Robin Hausner, Plaintiff/Appellant, vs. State of Oklahoma, ex rel., Department of Public Safety, Defendant/Appellee. Appeal from the District Court of Tulsa County, Oklahoma. Honorable David Guten, Special District Judge. Plaintiff/Appellant Robin Hausner (Hausner) challenges the constitutionality of a statute pertaining to the revocation of drivers’ licenses. Hausner refused an alcohol breath test during a traffic stop for a suspected DUI. He was arrested and served with notice of revocation of his driver’s license, effective thirty (30) days from the date of his arrest. Hausner appealed to the district court. Hausner challenged the constitutionality of the newly enacted statutory scheme, through which no hearing is afforded prior to automatic revocation upon the refusal of a breath test. Further, the new statutes provide no mechanism to stay the revocation pending appeal. The Department of Public Safety (DPS) asserted it had entered a stay of Hausner’s revocation into his driver’s license index, pending his appeal. As such, the district court held that Hausner was not deprived of due process and after an evidentiary hearing, sustained the revocation of his driver’s license. On appeal, DPS argues Hausner has not sustained an injury in fact because DPS entered a stay of revocation pending appeal. We hold Hausner did suffer an injury in fact. However, because the period of harm relating to the revocation of his license without a hearing has ceased, Hausner’s claims are DISMISSED for mootness. Opinion by PEMBERTON, J.; MITCHELL, P.J., and SWINTON, V.C.J., concur.
118,897 – Lauryn Weller, an individual, Plaintiff/Appellant, vs. Vanessa Wilson, an individual, Phillip Snow, an individual, and Tonya Valentine, an individual, Defendants/Appellees. Appeal from an Order of the District Court of Kay County, David R. Bandy, Trial Judge. Lauryn Weller (Weller) appeals an amended journal entry of judgment filed on June 11, 2020, granting summary judgment in favor of Phillip Snow and Tonya Valentine (Landlords). Weller was attacked by a pit bulldog owned by Vanessa Wilson (Tenant), who rented a home from Landlords. By statute, a dog owner is strictly liable for damages when her dog bites or injures another person in certain circumstances. See 4 O.S.2011, § 42.1. The issue in this case is whether the undisputed material facts preclude Landlords from being considered the dog’s “owners” under a Ponca City ordinance, which more broadly defined and operated to extend the statutory definition of the term. Based on our review of the record and applicable law, we find the undisputed facts showed Landlords were not “owners” under the ordinance and affirm the trial court’s order granting summary judgment. AFFIRMED. Opinion from the Court of Civil Appeals, Division IV, by HIXON, J.; WISEMAN, C.J., and THORNBRUGH, P.J., concur.
December 22, 2020
118,577 – In the Matter of the Adoption of E.A.G., a minor child: Christopher Gammon, Appellant, vs. Shannon Arnold, Appellee. Appeal from an order of the District Court of Tulsa County, Hon. Kurt G. Glassco, Trial Judge. The biological father of E.A.G., Christopher Gammon (Gammon), appeals an Order Adjudicating Minor Eligible For Adoption entered after a bench trial on a petition to determine that Gammon’s consent to adoption was not necessary. The trial court ruled that Gammon had failed to provide support and had not established and maintained a relationship during the statutory period. The evidence presented to the trial court in this case meets the clear and convincing standard to establish Gammon’s willful failure to provide support for E.A.G. The trial court’s judgment that Gammon’s consent is not required pursuant to Title 10 O.S.2011, § 7505-4.2(B) is affirmed. The evidence presented to the trial court in this case meets the clear and convincing standard to establish Gammon’s failure to establish and/or maintain a substantial and positive relationship with E.A.G. and that Gammon has not had frequent and regular contact with E.A.G. through frequent and regular visitation or frequent and regular communication. However, Gammon asserts that his consent is required because he was denied opportunity and took legal action to enforce visitation. Gammon invokes the provisions of Title 10 O.S.2011, § 7505-4.2(H)(2). Under controlling authority of In re Adoption of M.A.S., 2018 OK 1, 419 P.3d 204, the filing of the enforcement motion constituted sufficient legal action to enforce visitation. Therefore, the trial court’s judgment that consent is not required under Section 7505-4.2(H) is reversed. The judgment finding that Gammon’s consent to adopt is not necessary is affirmed on the willful failure to provide support ground. AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division II, by RAPP, J.; BARNES, P.J., concurs, and FISCHER, J., concurs in part and dissents in part.
January 5, 2021
118,545 – Faramarz Mehdipour and Ali Mehdipour, Plaintiffs/Appellants, vs. Honorable Cindy H. Truong, Judge, Oklahoma County District Court, Defendant/Appellee. Appeal from an Order of the District Court of Oklahoma County, Hon. Jack McCurdy, Trial Judge. Faramarz and Ali Mehdipour sued Judge Cindy H. Truong alleging harm resulting from various rulings adversely affecting the Mehdipours in three district court actions. The district court granted Judge Truong’s motion to dismiss this action for failure to state a claim on which relief could be granted and denied Faramarz’s motion for new trial. The Mehdipours appeal the order dismissing their case with prejudice and the order denying the motion for new trial. Because all of the acts for which the Mehdipours have sued Judge Truong were judicial acts performed in the discharge of her duties as a judge, she is immune from civil liability and the district court’s orders are affirmed. APEAL DISMISSED INPART, AND AFFIRMED IN PART. Opinion from the Court of Civil Appeals, Division II, by FISCHER, J.; BARNES, P.J., and RAPP, J., concur.
December 21, 2020
118,539 – Barbara Johns, Plaintiff/Appellant, v. KFC Corporation, a Delaware Corporation, Defendant/Appellee. Appeal from the District Court of Oklahoma County, Hon. Aletia Haynes Timmons, Trial Judge. In this personal injury negligence action, Plaintiff appeals from an order of the trial court denying her motion to enter a new scheduling order or in the alternative to enter a written order finalizing an earlier court minute entry dismissing her case. Because the minute entry is not a final order of dismissal and the court’s order denying Plaintiff’s motion to enter a written order finalizing the minute entry is not a final, appealable order, we dismiss the appeal and remand the cause for further proceedings. APPEAL DISMISSED AND CAUSE REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division II, by BARNES, P.J.; FISCHER, J., concurs and RAPP, J., concurs in result.
December 18, 2020
118,444 - Synergy Oil, LLC, an Oklahoma limited liability company, and RAF Operating, LLC, Plaintiffs/Appellants, vs. Young Bowden Law Group, P.C., an Oklahoma Professional Corporation, Warren Young, an individual, Stephanie Bowden, an individual, and Don Bolt, an individual, Defendants/Appellees. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Linda G. Morrisey, Trial Judge. Plaintiffs/Appellants Synergy Oil, LLC, and RAF Operating, LLC, (collectively, Former Clients) appeal summary judgment granted to Defendants/Appellees Young Bowden Law Group, P.C., Warren Young, Stephanie Bowden, and Don Bolt (collectively, Lawyers) in Former Clients’ legal malpractice action. Former Clients asserted Lawyers committed malpractice when they intervened in Former Clients’ case in another county in order to enforce a judgment against Former Clients. The trial court found Lawyers did not breach a duty because they intervened to recover a judgment for unpaid fees for representation and that Lawyers acted within their rights in intervening to protect their interests. The material facts are undisputed and show Lawyers were entitled to judgment as a matter of law. The findings of fact and conclusions of law of the trial court adequately explain the decision and we AFFIRM by summary opinion under Oklahoma Supreme Court Rule 1.202(d). Opinion by SWINTON, V.C.J.; MITCHELL, P.J., and PEMBERTON, J., concur.
Jan 4, 2021
118,441 — Double T. Investments, LLC, Plaintiff/Appellant, vs. HMW, Inc., Corey Harwell, and Pete Hightower, Defendants/Appellees. Appeal from an order of the District Court of Grady County, Hon. Kory Kirkland, Trial Judge, awarding judgment and damages to Double T. Investments, LLC, in this forcible entry and detainer action. Double T. asserts trial court error in calculating the amount of the damages award. We conclude the trial court erred in calculating the amount of damages to be awarded Double T. for Harwell’s nonpayment of rent. We reverse the decision to award Double T. the amount of $4,945 and modify the award to $11,465. We further conclude Double T. has failed to show trial court error in its refusal to award late fees and we affirm this decision. AFFIRMED IN PART AND REVERSED AND MODIFIED IN PART. Opinion from the Court of Civil Appeals, Division IV, by WISEMAN, C.J.; THORNBRUGH, P.J., and HIXON, J., concur.
December 21, 2020
118,413 — Kenneth B. Poole II, a/k/a, Kenneth Poole, a/k/a Kenneth B. Poole, Plaintiff/Appellee, vs. Wells Fargo Bank, N.A., as Trustee for the Certificate Holders of LMT 2006-9 Trust, Defendant/Appellant. Appeal from an order of the District Court of Bryan County, Hon. Mark R. Campbell, Trial Judge, denying Wells Fargo’s motion to vacate default judgment. The question here is whether this denial was an abuse of discretion. The appellate record contains no showing that an attempt to serve Wells Fargo occurred by “certified mail, return receipt requested and delivery restricted to the addressee.” The addressee in this instance would be “an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process.” 12 O.S. Supp. 2019
§ 2004(C)(1)(c)(3) and (C)(2)(a). Poole’s counsel failed to comply with the statutory requirements for service by mail, demonstrating insufficient service of process on Wells Fargo. Because Poole obtained default judgment without service of process on Wells Fargo, the trial court lacked in personam jurisdiction over it, and the default judgment was void on the face of the judgment roll and subject to vacation at any time pursuant to 12 O.S.2011 § 1038. The trial court’s order denying Wells Fargo’s request to vacate the void judgment must be reversed. The default judgment is vacated, and the case is remanded for further proceedings. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from the Court of Civil Appeals, Division IV, by WISEMAN, C.J.; THORNBRUGH, P.J., and HIXON, J., concur.
December 21, 2020
117,537 – Theodore A. McElroy, Plaintiff/Appellee, vs. Tamara Jo Wagner, Defendant/Appellant. Appeal from the Order of the District Court of Tulsa County, Hon. Mary Fitzgerald, Trial Judge. Defendant Tamara Wagner appeals the district court’s judgment, which granted the petition for cancellation of deed filed against her by her father, Plaintiff Theodore McElroy, and quieted title to the property in him. After examining the record and weighing the evidence, this Court is unable to conclude that the district court’s judgment cancelling the quit claim deed and quieting title in Plaintiff is against the clear weight of the evidence. AFFIRMED. Opinion from the Court of Civil Appeals, Division II, by FISCHER, J.; BARNES, P.J., and RAPP, J., concur.
December 18, 2020
116,938 – Shawn McGee, Plaintiff/Appellant, vs. Tamara Bruner, Defendant/
Appellee, and Howard Mayfield, Intervenor/Appellee. Appeal from an Order of the District Court of Garfield County, Hon. Dennis W. Hladik, Trial Judge. Petitioner, Shawn McGee, (McGee) appeals the trial court’s Order finding McGee’s right to seek and adjudicate paternity expired pursuant to the Uniform Parentage Act (UPA), Title 10 O.S.2011 and Supp. 2019 § 7700-301 et seq., and sustaining the Motion to Dismiss of Intervenor, Howard Lewis Mayfield. This appeal was assigned to the accelerated docket pursuant to Okla.Sup.Ct.R. 1.36, 12 O.S. Supp. 2019, ch. 15, app. 1. McGee filed this action to contest the Acknowledgement of Paternity more than two years after Mayfield executed the Acknowledgement. Title 10 O.S.2011 § 7700-609, a statute of repose, requires that a challenge under the present facts must be commenced within two years of the execution of an acknowledgement. Thus, per the statutes in effect at that time, McGee’s action was untimely. Pursuant to the statutes in effect at the time the trial court rendered its decision, the trial court’s decision sustaining Mayfield’s Motion to Dismiss and dismissing McGee’s action is affirmed. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by RAPP, J.; BARNES, P.J., concurs, and WISEMAN, V.C.J., dissents.
December 18, 2020
116,551 – RCB Bank, an Oklahoma Banking Association, Plaintiff/Appellee, vs. Kent Stitt, an individual; Kent D. Stitt, Trustee of the 186th St. Land Trust #3240 under the provisions of a Trust Agreement dated June 29, 2007, Defendant/Appellant and M. Keith Stitt & Associates; Oklahoma Tax Commission; Board of County Commissioners, Washington County; and Occupants, if any, Defendants. Appeal from Order of the District Court of Washington County, Hon. Russell C. Vaclaw, Trial Judge. Kent Stitt (Kent) and Kent D. Stitt as Trustee of the 186th St. Land Trust #3240 (Trust) along with M. Keith Stitt & Associates (Keith), appeal the judgment entered in favor of RCB Bank in this mortgage foreclosure action. In the district court, both the Bank and Keith sued Kent and his Trust to collect unpaid promissory notes and to foreclose mortgages on property located in Washington County, Oklahoma, securing the payment of those notes. The district court granted the Bank’s motion for summary judgment and also granted Keith’s motion for summary judgment, in part. The district court’s judgment provides that Kent’s notes to both plaintiffs were in default and that both plaintiffs were entitled to foreclose their respective mortgages. However, the judgment also provides that the Bank’s mortgage lien was superior to Keith’s mortgage lien and entitled to be satisfied first from the sale of the mortgaged property. Oklahoma law resolves the priority issue in favor of the Bank because its mortgage lien was recorded before Keith recorded its mortgage lien. Because the Trust agreed that its Washington County property would secure all of Kent’s debts when it signed the Bank’s mortgage, the Bank is entitled to satisfy its entire judgment from that property. Finally, the Bank is not required to marshal Kent’s assets and resort to other property on which it holds a mortgage before resorting to the Washington County property because, as between the Bank and Keith, there is no common debtor sufficient to invoke this equitable doctrine. The district court’s judgment is affirmed. AFFIRMED. Opinion from Court of Civil Appeals, Division II, by FISCHER, J.; BARNES, P.J., and WISEMAN, C.J. (sitting by designation), concur.
January 5, 2021
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The OBA Law Day Committee has extended the deadline for the state-wide student Art & Writing contest to Feb. 1, 2021. Students, in public, private, charter or homeschool can participate and compete for prizes in the annual event. Tell students and teachers you know about the contest. Find the details here. Read more about Law…
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