Oklahoma Court of Civil Appeals

Division I

118,062 – Dwight J. Baum, as Trustee for the Dwight C. And Hildagarde E. Baum Trust. Plaintiff/Appellee, v. William C. Milks, Defendant/Appellant.  William Milks, Appellant and Judgment Debtor, appeals the trial court's denial of his motion to vacate a foreign judgment filed in Oklahoma.  Dwight Baum, as trustee of the Dwight C. and Hildagarde E. Baum Trust, Appellee and Judgment Creditor, filed an authenticated copy of a Nevada judgment (Judgment) as prescribed by the Uniform Enforcement of Foreign Judgments Act, 12 O.S. §719 et. seq.  In the underlying Nevada suit, claimants, including Baum as trustee, brought suit against respondents, including Milks, for various causes of action related to a business venture.  The Judgment awarded Baum (and other claimants) attorney fees and costs to be paid by respondents (Milks and other respondents).  The attorney fees and costs were the joint and several liability of Milks and the other respondents. Opinion by GOREE, P.J.; MITCHELL, J. and PEMBERTON, J., (sitting by designation) concur. March 23, 2021

118,354  – Sam Taylor, Plaintiff/Appellee, vs. Delaware County Solid Waste Trust Authority, a public trust organized under the laws of the State of Oklahoma, Defendant/Appellant.  Appeal from the District Court of Delaware County, Oklahoma.  Honorable Dave Crutchfield, Trial Judge. Defendant/Appellant Delaware County Solid Waste Trust Authority (SWTA) seeks review of the trial court’s journal entry of judgment, entered upon jury verdicts awarding Plaintiff/Appellee Sam Taylor $25,000 for negligent injury to property and $100,000 for nuisance.  Because Taylor did not present a prima facie case for nuisance recovery, we find the trial court should have granted SWTA’s motions for directed verdict. We reverse that portion of the judgment and remand.  Opinion by MITCHELL, J.; GOREE, P.J., and PRINCE, J., concur.  March 22, 2021

Division II

118,866 – In re the Adoption of L.O.E., Minor Child: Lamaz Devon Jefferson, Respondent/Appellant, v. Richalle Erickson and Roy Erickson, Petitioners/Appellees.  Appeal from the District Court of Oklahoma County, Hon. Allen J. Welch, Trial Judge.  Appellant Lamaz Devon Jefferson (Father) appeals from an order of the district court determining the minor child is eligible for adoption without his consent.  On appeal, Father argues the trial court erred in finding his consent was not necessary because Appellees failed to present clear and convincing evidence that (1) he failed to exercise parental rights or duties toward the minor child and contends he was prevented from exercising those parental rights by the child’s mother; and (2) he failed to contribute to the support of the mother during her pregnancy to the extent of his financial ability.  Based on our review of the appellate record, however, we conclude Appellees presented clear and convincing evidence that Father failed to exercise parental rights or duties toward the minor child, including his failure to contribute to the mother’s support to the extent of his financial resources during the term of her pregnancy.  Consequently, the trial court did not err in determining the minor child eligible for adoption without his consent.  AFFIRMED.  Opinion from Court of Civil Appeals, Division II, by BARNES, J.; WISEMAN, P.J., and THORNBRUGH, J., concur.  March 17, 2021

118,989 – Dustin Murakami, Plaintiff/Appellant, vs. West Wind Assisted Living and Gregston Assisted Living Enterprises, L.L.C., Defendants/Appellees.  Appeal from an Order of the District Court of Stephens County, Hon. Ken J. Graham, Trial Judge.  The plaintiff, Dustin Murakami (Murakami), appeals an Order dismissing his petition for failure to state a claim against the defendants, West Wind Assisted Living and Gregston Assisted Living Enterprises, LLC.  This appeal proceeds under Okla.Sup.Ct.R. 1.36, 12 O.S. Supp. 2020, Ch. 15, app. 1.  The trial court is affirmed.  Murakami was injured in a vehicle collision with Shaw.  Shaw was a resident of Defendants’ assisted living facility and had his vehicle with him.  Murakami sued Defendants claiming negligence in allowing Shaw to leave and operate his vehicle knowing that Shaw was physically and mentally impaired.  The issue here is whether Defendants have a duty to Murakami.  This Court concludes that the facts of this case show that Defendants had no control over Shaw’s decision to leave the premises and Shaw had a right as an assisted living resident to come and go as he wished and to use his vehicle.  Moreover, Defendants did not have control over Shaw’s use of his vehicle. Defendants did not decide to allow Shaw to use his vehicle.  In addition, Murakami is not a person with whom Defendants have a special relationship.  The absence of control is the factor leading to the conclusion that Defendants did not have a duty to Murakami.  Therefore, the judgment granting Defendants’ motion to dismiss for failure to state a claim is affirmed.  AFFIRMED.  Opinion from Court of Civil Appeals, Division II, by RAPP, J.; BARNES, P.J., concurs, and FISCHER, J., dissents.  March 17, 2021

118,516 — Cecilia Wilkins and William Wilkins, Plaintiffs/Appellants, and Novus Homes LLC and W3 Development, Plaintiffs, vs. The Tulsa Development Authority, Defendant/ Appellee.  Appeal from an Order of the District Court of Tulsa County, Honorable Douglas E. Drummond, Trial Judge.  Plaintiffs Cecilia and William Wilkins appeal a decision of the district court finding their Open Meetings Act (OMA) suit against the Tulsa Development Authority (TDA) moot.  We find that any relief in the form of an injunction or declaration of invalidity was mooted in the case.  We also find that Plaintiffs demonstrated no colorable interest in TDA’s Resolution No. 6205 that was harmed by the form of notice.  We reject the arguments that the OMA was intended to support civil suits based on theoretical harms, or harms to third parties, but hold that the properly minimal standing requirements make it necessary for an OMA plaintiff to sufficiently allege and show a personal stake in the outcome of the controversy.  AFFIRMED.  Opinion from the Court of Civil Appeals, Division II, by THORNBRUGH, J.; WISEMAN, P.J., and BARNES, J., concur. March 18, 2021

118,614 — Tinker Federal Credit Union, Plaintiff/Appellee, vs. Galan D. Cobb, Defendant/Appellant.  Appeal from an Order of the District Court of Oklahoma County, Honorable Natalie Mai, Trial Judge.  Galen Cobb appeals a decision of the district court entering judgment against him on an automobile loan.  On review, we find that TFCU did not obtain a final enforceable judgment in 2006 but did obtain a final enforceable judgment in 2020.  The 2020 judgment does not “relate back” to the 2006 request for default judgment as far as the amount owed is concerned, and judgment should be for the amount owed in November 2019, not the amount owed in 2006.  We remand for the entry of a judgment consistent with this Opinion.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.  Opinion from the Court of Civil Appeals, Division II, by THORNBRUGH, J.; WISEMAN, P.J., and BARNES, J., concur. March 19, 2021

Division III

117,749   -  Randall Carter. P.A., an individual, Plaintiff/Appellant, vs. The Oklahoma Health Care Authority, The Oklahoma Health Care Authority Board, Rebecca Pasternik-Ikard, Administrator, Becki Burton, Deputy General Councel, in her official capacity, Nicole Nantois, Chief of Legal Services, in her official capacity, and John/Jane Doe, an employee of the Oklahoma Health Care Authority, in his/her official capacity, Defendants/Appellees. Appeal from the District Court of Cleveland County, Oklahoma.  Honorable Lori Walkley, Judge.   Plaintiff/Appellant, Randall Carter, P.A., appeals from the district court’s denial of his motion to disqualify counsel for Defendants/Appellees in a pending civil action to review an administrative decision by the Oklahoma Health Care Authority (OHCA).  Plaintiff, a physician assistant, twice applied for and was denied a Medicaid provider agreement by OHCA.  He thereafter filed a petition for declaratory judgment, asserting OHCA applied administrative rules that were not properly promulgated.  Plaintiff then filed the instant motion to disqualify OHCA’s counsel, urging the defenses they advanced have no basis in law.  Plaintiff has failed to sustain his high burden of showing that removal of OHCA’s attorneys is necessary to preserve the integrity of the judicial process.  AFFIRMED. Opinion by BELL, J.; PEMBERTON, P.J., and SWINTON, C.J., concur. March 18, 2021

118,059   -  In Re: The Vaden K.M. Richards Preservation Trust: Tommy Sims, Appellant, vs. Joshua J. Manfull and Patricia Manfull, Appellees. Appeal from the District Court of Comanche County, Oklahoma.  Honorable Brad L. Benson, Judge.   Appellant, Tommy Sims, appeals from the trial court’s order directing  Appellant to pay Appellees/Defendants, Joshua J. Manfull and Patricia Manfull, $12,200.95 in attorney fees and costs.  Appellees requested such fees and costs pursuant to the “inherent authority exception” to the American Rule set forth in EQ Okla., Inc. v. A Clean Env’t Co., 2015 OK CIV APP 62, 353 P.3d 557, citing City Nat’l Bank and Trust Co. v. Owens, 1977 OK 86, 565 P.2d 4.  The Owens inherent authority exception should be applied narrowly and with caution and restraint; when a party or party’s attorney acts in bad faith, vexatiously, wantonly or in an oppressive manner; and when overriding considerations indicate the need for an award of attorney fees.  Here, the trial court’s order does not recite the necessary findings required to sustain an award of attorney fees under Owens and its progeny.  We therefore hold the trial court erred when it awarded Appellees their attorney fees and costs and assessed said fees against Appellant.  The trial court’s order is REVERSED. Opinion by BELL, J.; PEMBERTON, P.J., and SWINTON, C.J., concur. March 18, 2021

118,313  - In Re the Marriage of Deborah S. Colbert, now Farber, Petitioner/Appellee, vs. Steven C. Colbert, Respondent/Appellee, Swenson & Swenson, PLLC, Appellant.  Appeal from the District Court of Tulsa County, Oklahoma.  Honorable Stephen Clark, Judge.  In this custody matter, Petitioner/Appellee, Deborah S. Colbert, now Farber (Mother), moved to suspend the visitation rights of Respondent/Appellee, Steven Colbert (Father), on the basis of Father’s domestic abuse of his minor child.  After a multi-day trial, the court found Mother sustained her burden of proving Father’s domestic abuse and suspended Father’s visitation with his minor child.    During the proceeding to suspend visitation, Father filed applications to cite Mother for contempt.  These applications were either denied, dismissed or withdrawn.  Mother’s legal counsel, Appellant, Swenson & Swenson, PLLC (Law Firm), filed an application to recover Mother’s attorney fees under 43 O.S. 2011 §112.6 and other statutory authority.  The parties filed a joint motion to pay their own attorney fees.  Law Firm petitioned the trial court to obtain a judgment for attorney fees and costs  against Father, on its own behalf, for its representation of Mother in the visitation and contempt proceedings.  The trial court held Law Firm could proceed with the fee application and scheduled a merits trial.  After the merits trial, the trial court entered a journal entry finding the requested attorney fees were reasonable and appropriate, but denied Law Firm’s application because Law Firm did not document the attorney fees paid by Mother.  We hold Law Firm was entitled to a judgment against Father for the amount of the reasonable attorney fees and costs provided to Mother in the proceeding to suspend Father’s visitation rights due to domestic abuse.  The trial court’s judgment denying such fees is reversed and this matter is remanded to the trial court to determine and award Law Firm the reasonable amount of such attorney fees and costs.  Law Firm is also entitled to a judgment against Father for attorney fees and costs for legal services provided to Mother defending against the contempt proceedings to the extent such legal services are related to the court’s finding of domestic abuse.  The trial court’s judgment is REVERSED AND REMANDED for further proceedings in accordance with this opinion.  Opinion by BELL, J.; PEMBERTON, P.J., and SWINTON, C.J., concur. March 18, 2021

118,357  ­­-  (Comp. w/118,854) Daniel Robert Walker, as Special Administrator of the Estate of Ro Jean Walker, Plaintiff/Appellee, vs. Sagora Senior Living, Inc.; S TCG Tulsa MC, LLC, d/b/a Aberdeen Memory Care of Tulsa, Defendants/Appellants, and Physician’s Choice in Care, LLC, d/b/a Physicians Choice Hospice, and Good Shepard Hospice, Inc., Defendants.  Defendants/Appellants Sagora Senior Living, Inc. and S TCG Tulsa MC, LLC, d/b/a Aberdeen Memory Care of Tulsa, appeal from an order denying their motion to dismiss or, in the alternative, motion to compel arbitration and stay proceedings in a case filed by Plaintiff/Appellee Daniel Robert Walker, as Special Administrator of the Estate of Ro Jean Walker.  We AFFIRM IN PART and REMAND the matter for additional proceedings consistent with this opinion.  Opinion by SWINTON, C.J.; PEMBERTON, P.J., and BELL, J., concur. March 18, 2021

118,378  -  (Consol. w/118,379) Frances G. Norton, Plaintiff/Appellant, vs. Thomas M. Affeldt, Defendat, and Shane Lewis and Amanda Lewis, husband and wife, Defendants/Appellees.  Appeal from the District Court of Tulsa County, Oklahoma.  Honorable Rebecca B. Nightingale, Trial Judge.  In these consolidated cases, Plaintiff/Appellant Frances G. Norton appeals the trial court’s orders granting summary judgment and awarding attorney fees to Defendants/Appellees Shane and Amanda Lewis. Norton alleged the Lewises fraudulently induced her to make a gift of property to them because they purchased Norton’s house and gave her a promissory note with a paid on death provision, allegedly without her knowledge. The trial court granted summary judgment to the Lewises, finding Norton failed to show a question of fact on fraud and finding she was estopped to allege fraud because in an earlier case, Norton had expressly stated the note and mortgage were unambiguous, valid, and not the result of fraud.  The trial court found Norton had failed to present any evidence of fraud and awarded attorney fees to the Lewises under 12 O.S. Supp. 2013 §2011.1. The trial court also cited 12 O.S.2011 §936 as support for its fees award. The record shows no dispute of material fact and the Lewises were entitled to judgment as a matter of law. We therefore affirm summary judgment.  The trial court did not abuse its discretion in awarding attorney fees under Section 2011.1 and we affirm the award of fees and the supplemental award of fees; because we affirm the award of fees on that basis, we need not determine whether fees were allowed under Section 936.  AFFIRMED. Opinion by SWINTON, C.J.; PEMBERTON, P.J., and BELL, J., concur. March 18, 2021

118,494  - Lisa Blencowe, as Personal Representative of the Estate of Carl E. McLane, Deceased, Plaintiff/Appellee, vs. Council Senior Living Care, LLC, A Delaware limited liability company d/b/a Emerald Square Assisted Living Community & Meridian Senior Living, LLC, a Delaware limited liability company, Defendant/Appellant.  Appeal from the District Court of Oklahoma County, Oklahoma.  Honorable Thomas E. Prince, Trial Judge. Defendant/Appellant Council Senior Care, LLC d/b/a Council Square Assisted Living Community appeals from an order denying its motion to compel arbitration in an action filed by Plaintiff/Appellee Lisa Blencowe related to the care of Carl McLane at Appellant’s nursing home facility.  Appellant argues on appeal that the trial court erred in denying its motion to compel arbitration because Appellee signed the resident agreement as a “responsible person.”  Appellee argues that the trial court’s decision was correct because her wrongful death claims belong to the decedent’s beneficiaries, and are not made on behalf of the estate, relying on Boler v. Security Health Care, L.L.C., 2014 OK 80, 336 P.3d 468.  We AFFIRM. Opinion by SWINTON, C.J.; PEMBERTON, P.J., and BELL, J., concur. March 18, 2021

118,845  - Michele Burke, Plaintiff/Appellant, vs. City of Tulsa, Oklahoma, Defendant/Appellee.  Appeal from the District Court of Tulsa County, Oklahoma.  Honorable Daman Cantrell, Trial Judge.  Michele Burke appeals from an order entered in a condemnation proceeding in which the City of Tulsa acquired Ms. Burke’s residence by eminent domain. We resolve the appeal by dismissal. Ms. Burke’s brief on appeal does not contain any legal argument, citation to authority, reference to the record, or sound contention of error, and the record designated for appeal is inadequate. Those deficiencies have rendered impossible any meaningful review for error. DISMISSED.  Opinion by PEMBERTON, P.J.; SWINTON, C.J., and BELL, J., concur. March 18, 2021

118,854  - (Comp. w/118,357) Daniel Robert Walker, as Special Administrator of the Estate of Ro Jean Walker, Plaintiff/Appellee, vs. Sagora Senior Living, Inc.; S TCG Tulsa MC, LLC, d/b/a Aberdeen Memory Care of Tulsa, Defendants/Appellants, and Physician’s Choice in Care, LLC, d/b/a Physicians Choice Hospice, and Good Shepard Hospice, Inc., Defendants.  Defendants/Appellants Sagora Senior Living, Inc. and S TCG Tulsa MC, LLC, d/b/a Aberdeen Memory Care of Tulsa appeal from an order denying their renewed motion to dismiss or, in the alternative, motion to compel arbitration and stay proceedings in a case filed by Plaintiff/Appellee Daniel Robert Walker, as Special Administrator of the Estate of Ro Jean Walker.  By separate opinion in case number 118,357, we affirmed in part the trial court’s order denying Defendants’ motion to compel arbitration, and remanded the matter with instructions.  Pending resolution of the appeal, the trial court entered a scheduling order and the parties conducted discovery.  Defendants filed a renewed motion to compel arbitration, which included additional information they alleged would require arbitration of the matter.  Based upon our review of the applicable law and record, we AFFIRM IN PART and REMAND the matter for proceedings consistent with this opinion.  Opinion by SWINTON, C.J.; PEMBERTON, P.J., and BELL, J., concur. March 18, 2021

119,005  - (Comp. w/119,006 and 119,007) Kathryn Louise Knox, individually and as surviving spouse of David Odell Knox, Deceased, Plaintiff/Appellant, vs. Sunpower Corporation Systems, Defendant/Appellee, Oklahoma Gas and Electric Company d/b/a OG&E; and Moss & Associates, L.L.C. d/b/a Moss Solar, Defendants. Appeal from the District Court of Oklahoma County, Oklahoma.  Honorable Cindy Truong, Trial Judge.  This appeal concerns the trial court’s dismissal of Plaintiff’s claim(s) against Moss & Associates, L.L.C. d/b/a Moss Solar (Moss) grounded in a finding that the Oklahoma Administrative Workers’ Compensation Act (AWCA) provided the exclusive remedy for Plaintiff’s wrongful death claim against Moss. Our reversal of the trial court’s decision turns on answers to the following questions: 1) Are prime contractors subject to immunity from civil liability under circumstances articulated in 85A O.S. § 5, the section addressing when the AWCA provides the exclusive rights and remedies to parties; 2) If such immunity is available to prime contractors, how is prime contractor defined for purposes of Section 5; and 3) Last, if such immunity is available, did Moss qualify as a prime contractor for purposes of 85A O.S. § 5. The exclusive remedy provision in 85A O.S. § 5(A) unequivocally applies to a prime contractor, which is defined as a person, firm, corporation or other legal entity who contracts directly with the owner, and in relation to an injured employee of a subcontractor, the prime contractor must have hired the subcontractor to perform a specific task for the completion of a work-related activity. Although Moss may ultimately qualify as a prime contractor, such a determination was premature at the motion to dismiss stage.  REVERSED AND REMANDED. Opinion by PEMBERTON, P.J.; SWINTON, C.J., concurs and BELL, J., concurs in result. March 18, 2021

119,006  - (Comp. w/119,005 and 119,007) Kathryn Louise Knox, individually and as surviving spouse of David Odell Knox, Deceased, Plaintiff/Appellant, vs. Sunpower Corporation Systems, Defendant/Appellee, Oklahoma Gas and Electric Company d/b/a OG&E; and Moss & Associates, L.L.C. d/b/a Moss Solar, Defendants. Appeal from the District Court of Oklahoma County, Oklahoma.  Honorable Cindy Truong, Trial Judge.  This appeal concerns the trial court’s dismissal of Plaintiff’s claim(s) against Oklahoma Gas and Electric Company d/b/a OG&E. Although mired in other issues worthy of discussion, the dispositive issue is whether the trial court erred by dismissing Plaintiff’s claim(s) for failure to state a claim against OG&E. Because the trial court’s dismissal was at least implicitly based on a disregard of allegations that must be taken as true at the dismissal stage, we REVERSE.  Opinion by PEMBERTON, P.J.; SWINTON, C.J., concurs and BELL, J., concurs in result. March 18, 2021

119,007 - (Comp. w/119,005 and 119,006) Kathryn Louise Knox, individually and as surviving spouse of David Odell Knox, Deceased, Plaintiff/Appellant, vs. Sunpower Corporation Systems, Defendant/Appellee, Oklahoma Gas and Electric Company d/b/a OG&E; and Moss & Associates, L.L.C. d/b/a Moss Solar, Defendants. Appeal from the District Court of Oklahoma County, Oklahoma.  Honorable Cindy Truong, Trial Judge.  This appeal concerns the trial court’s dismissal of Plaintiff’s claim(s) against SunPower Corporation, Systems (SunPower) grounded in a finding that the Oklahoma Administrative Workers’ Compensation Act (AWCA) provided the exclusive remedy for Plaintiff’s wrongful death claim against SunPower. Our reversal of the trial court’s decision turns on answers to the following questions: 1) Are prime contractors subject to immunity from civil liability under circumstances articulated in 85A O.S. § 5, the section addressing when the AWCA provides the exclusive rights and remedies to parties; 2) If such immunity is available to prime contractors, how is prime contractor defined for purposes of Section 5; and 3) Last, if such immunity is available, did SunPower qualify as a prime contractor for purposes of 85A O.S. § 5. The exclusive remedy provision in 85A O.S. § 5(A) unequivocally applies to a prime contractor, which is defined as a person, firm, corporation or other legal entity who contracts directly with the owner, and in relation to an injured employee of a subcontractor, the prime contractor must have hired the subcontractor to perform a specific task for the completion of a work-related activity. Although SunPower may ultimately qualify as a prime contractor, such a determination was premature at the motion to dismiss stage.  REVERSED AND REMANDED. Opinion by PEMBERTON, P.J.; SWINTON, C.J., concurs and BELL, J., concurs in result. March 18, 2021

Division IV

118,366 - (Companion with Appeal No. 118,485) – U.S. Bank National Association as Legal Title Trustee, Plaintiff/Appellee, vs. Gregg S. Carter and Dana E. Carter, Defendants/Appellants, and John Doe, as occupant of the premises; Jane Doe, as occupant of the premises; and Bank of the Lakes, N.A., Defendants.  Appeal from an Order of the District Court of Rogers County, Hon. Sheila A. Condren, Trial Judge.  Gregg S. Carter and Dana E. Carter appeal an October 23, 2019 order confirming a sheriff’s sale.  Based on our review of the record and applicable law, we affirm the order under review.  AFFIRMED.  Opinion from the Court of Civil Appeals, Division IV, by HIXON, P.J.; FISCHER, V.C.J., and RAPP, J., concur. March 18, 2021

118,485 - (Companion to Appeal No. 118,366) – Gregg S. Carter and Dana E. Carter, Plaintiffs/Appellants, vs. U.S. Bank National Association as Legal Title Trustee, Defendant/Appellee.  Appeal from an Order of the District Court of Rogers County, Oklahoma, Hon. Sheila A. Condren, Trial Judge.  Gregg S. Carter and Dana E. Carter appeal a November 14, 2019 order denying their petition to vacate a January 15, 2019 judgment of foreclosure.  Based on our review of the record and applicable law, we affirm the order under review.  AFFIRMED.  Opinion from the Court of Civil Appeals, Division IV, by HIXON, P.J.; FISCHER, V.C.J., and RAPP, J., concur. March 18, 2021