Oklahoma Court of Civil Appeals

Division I 

 117,179 – PAMELA CONLEY, Plaintiff/Appellee, v. ICOT HEARING SYSTEMS, LLC, a foreign limited liability company, Defendant/ Appellant. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Rebecca Brett Nightingale, Trial Judge. This appeal arises out of the proceedings to enforce an Oklahoma Department of Labor ("ODOL") administrative Order of Determination ("Order") for unpaid wages by Pamela Conley ("Appellee"), against ICOT Hearing Systems, LLC ("Appellant"), her former employer.  Appellant appealed because Appellant contends the trial court abused its discretion when it denied Appellant's Motion and Alternative Petition to Vacate Judgment ("Motion to Vacate"). Appellee later commenced a counter-appeal, alleging the trial court erred as a matter of law when it failed to award attorney fees to Appellee under several state statutes. We find the trial court's denial of Appellant's Motion to Vacate did not represent an abuse of discretion. We also find the trial court did not err as a matter of law when it denied Appellee's Application for Attorney Fees. Therefore, we AFFIRM. Opinion by PRINCE, J.; GOREE, P.J., and MITCHEL, J., concurs. 

118,053 – REBEKAH ANN HAWKINS, individually and as surviving spouse of CHAD TODD HAWKINS, deceased. Appeal from the District Court of Grady County, Oklahoma. Honorable Kory Kirkland, Trial Judge. The issues in this appeal involve certain trial conduct of counsel, the admissibility of the toxicology results regarding the decedent and also the admission of opinion testimony concerning an ultimate issue in the case that was offered first by the investigating officer and later by the Defendants' expert accident reconstructionist. The appeal arises out of litigation that was initiated by the Appellant, Rebekah Ann Hawkins, individually and as surviving spouse of Chad Todd Hawkins, deceased ("Hawkins"), who sought damages stemming from a fatality collision between a commercial tractor-trailer and a motorcycle.  At the  conclusion of the trial, the jury returned a comparative negligence verdict.  The jury determined Chad Hawkins' negligence to be greater than Defendant Bryan Lake's ("Lake") negligence (70% and 30% respectively). We find that the trial court's decision to deny Plaintiffs Motion for Mistrial was an abuse of discretion. We, therefore, reverse and remand this case for a new trial. Opinion by PRINCE, J.; GOREE, P.J., and MITCHELL, K., concurs. 

118,278 – JESSICA DALENE EVANS, Individually and on Behalf of H.E., Minor Child, KAYLA ASHLEY JACKSON, Individually and on Behalf of C.M., Minor Child, Plaintiffs, vs. JON RANDALL ISHMAEL, Defendant/Appellee, TITLE II FIREARMS, INC., Intervenor/ Appellant, J. PETER MESSLER, Appellee. Appellee from the District Court of Tulsa County, Oklahoma. This case primarily concerns whether or not Intervenor/Appellant, Title II Firearms, Inc. ("Title II") or Defendant/Appellee, Jon Randall Ishmael ("Ishmael"), should have been awarded attorney fees as the "prevailing party" pursuant to Title 42 O.S. § 176 in an action to determine if Title II had a valid lien claim for possession of firearms  which  were  owned  by  Ishmael. This appellate  proceeding  was commenced by Title II, after judgment entered on September 3, 2019, was rendered in favor of Ishmael for attorney fees and costs in the amount of $17,585.86 and for compensation in favor of Appellee, J. Peter Messler, as Special Master in the amount of $3,075.00. In addition, Title II, in a Journal Entry entered on December 27, 2019, was ordered to pay Ishmael supplemental attorney fees and costs in the amount of $12,897.45. The trial court denied Title II's request for fees. We reverse the award for attorney fees and costs in the amount of$17,585.86. We affirm the supplemental award of attorney fees and costs in the amount of $12,897.45. We affirm the denial of Title II's request for attorney fees and we affirm the award of compensation to the Special Master in the amount of $3,075.00. Opinion by PRINCE, J.; MITCHELL, J., concurs and GOREE, P>J> concurs in part and dissent in part. 

DIVISION II

 118,028 — Terracom, Inc., Yourtel America, Inc., and Skycom USA, LLC, Plaintiffs/Appellees, vs. Clowers Communications, LLC, Defendant/Appellant.  Appeal from an order of the District Court of Oklahoma County, Hon. Trevor S. Pemberton, Trial Judge, by Defendant Clowers Communications, LLC (CC), after a jury verdict in favor of Plaintiffs YourTel America, Inc., TerraCom, Inc., and SkyCom USA, LLC, and its award of attorney fees and costs to Plaintiffs in this breach of contract case.  CC claims that portions of the subject contract are ambiguous and others are unambiguous.  “Whether a contract is ambiguous so as to require extrinsic evidence to clarify the ambiguity is purely one of law for the court, and the construction of an unambiguous contract is a matter of law for the court.”  Ferrell Constr. Co., Inc. v. Russell Creek Coal Co., 1982 OK 24, ¶ 9, 645 P.2d 1005 (footnotes omitted).  “The only question concerning the sufficiency of the evidence is whether there is any competent evidence to sustain the verdict.”  Fowler v. Lincoln Cnty. Conservation Dist., 2000 OK 96, ¶ 14, 15 P.3d 502.  Applying this standard of review, we will not disturb the jury’s findings of fact where any competent evidence reasonably supports the findings.  CC further asserts, “Because Plaintiffs breached the contract by terminating the agreement prematurely, they should not have been deemed prevailing parties and should not have been awarded a judgment for costs and attorney’s fees.”  The jury resolved the question of prevailing party in Plaintiffs’ favor, finding that CC breached the contract, not Plaintiffs.  Having concluded that the jury’s verdict in Plaintiffs’ favor is supported by competent evidence and that Plaintiffs prevailed on their breach of contract claim and defeated CC’s breach of contract counterclaim, we reject CC’s argument that Plaintiffs are not prevailing parties.  Competent evidence supports the jury’s verdict.  We affirm both the trial court’s judgment on the jury verdict and its award of attorney fees and costs.  AFFIRMED.  Opinion from the Court of Civil Appeals, Division II, by WISEMAN, P.J.; BARNES, J., and THORNBRUGH, J., concur. 

119,090 — In the Matter of S.J.S., and S.J.H., Alleged Deprived Children, William Harrison, Appellant, vs. State of Oklahoma, Appellee.  Appeal from an order of the District Court of Custer County, Hon. Donna L. Dirickson, Trial Judge, terminating William Harrison’s (Father) parental rights to SJH.  The primary issues on appeal are whether service by publication was proper and whether the State of Oklahoma proved by clear and convincing evidence that Father failed to correct the conditions that led to the adjudication of SJH as deprived.  We conclude that Father has failed to show trial court error in allowing service of summons by publication when States’ attempts to serve personally and by certified mail were unsuccessful and Father was not deprived of actual notice of the hearing date.  Also, based on the evidence presented at the hearing and after careful review of the record and applicable law, we conclude that State proved by clear and convincing evidence that (1) Father failed to correct the conditions that led to SJH being adjudicated deprived, and (2) that termination of Father’s parental rights was in SJH’s best interest.  Finding no error, we affirm.  AFFIRMED.  Opinion from the Court of Civil Appeals, Division II, by WISEMAN, P.J.; BARNES, J., and THORNBRUGH, J., concur.