Courts and More Vol. 1 | No. 20 | May 19, 2021

Oklahoma Court of Civil Appeals

Division I

118,290 – Kim Fox-Jones as Personal Representative of the Estate of Brennan James Atkeson, deceased, Plaintiff/Appellee, v. National Oilwell Varco, L.P., Union Carbide Corporation and Montello, Inc., Defendants/Appellants.  Appeal from the District Court of Pontotoc County, Oklahoma.  Honorable Steven Kessinger, Judge.  This is an appeal from a jury’s verdict in a “take-home” asbestos case.  After a thirteen-day trial, the jury entered an eight-million-dollar verdict for the plaintiff.  All three defendants appeal.  They each argue that there was insufficient evidence to support the jury’s verdict as to causation and that the court should have directed a verdict in their favor.  Alternatively, all three defendants argue that the trial court’s pretrial ruling forbidding each defendant from blaming third parties not named in response to the plaintiff’s interrogatory seeking the identity of such parties, if any, deprived them of a fair trial.  Finally, one defendant argues that the trial court erred in refusing certain jury instructions.  We AFFIRM.  Opinion by MITCHELL, J.; PRINCE, J., concurs specially and GOREE, P.J., dissents. May 13, 2021

118,695 – Marietta Howell, Petitioner/Appellee, v. Claude Ray Howell, Respondent/Appellant. Appeal from the District Court of Okmulgee County, Oklahoma.  Honorable Cynthia Pickering, Judge. The issue presented in this appeal is whether the trial court abused its discretion in finding that a Petition for Protective Order was not a frivolous filing, thereby precluding an award of attorney fees and court costs.  The Petitioner/Appellee, Marietta Howell (“Marietta”), obtained an emergency protective order against her ex-husband, Claude Ray Howell (“Claude”).  When the matter came on for hearing, Marietta agreed to the withdrawal of the EPO and the dismissal of the case.  The trial court found that the case had not been frivolously filed, precluding any avenue for Claude to seek attorney and court costs in this matter.  Based on the record as a whole, the finding by the trial court that the Petition for Protective Order was not frivolously filed did not constitute an abuse of discretion.  Consequently, we AFFIRM the decision of the trial court.   Opinion by PRINCE, J.; GOREE, P.J., and MITCHELL, J., concur. May 13, 2021

119,011 – In the Matter of E.T.M., I.M.M., J.L.M. and S.G.Y.M., Alleged Deprived Children, Bobbie Joleigh Mahurin, Appellant, v. State of Oklahoma, Appellee.  Appeal from the District Court of Carter County, Oklahoma.  Honorable Dennis Morris, Trial Judge.  Appellant, Bobbie Jo Leigh Mahurin (“Appellant”), had five children with Michael Todd Mahurin, Jr.  The State of Oklahoma (“State”), removed the children from Appellant’s home and they were adjudicated deprived.  The State subsequently sought termination of Appellant’s parental rights.  After a bench trial, Appellant’s parental rights were terminated. The termination of parental rights is supported by clear and convincing evidence.  We, therefore, AFFIRM the trial court.  Opinion by PRINCE, J.; GOREE, P.J., and MITCHELL, J., concur. May 13, 2021

119,202 – Multiple Injury Trust Fund, Petitioner, v. Arthur Woods and the Workers’ Compensation Court En Banc, Respondents.  Proceeding to Review an Order of the Workers’ Compensation Court of Existing Claims. The Multiple Injury Trust Fund, Appellant, seeks review of the Court en banc of the Workers’ Compensation Court of Existing Claims.  The Court found Arthur Woods, Appellee, was permanently totally disabled.  The conclusion that Woods was a physically impaired person due to an obvious and apparent injury to his left arm, 85 O.S. §402(A)(3), was sustained by competent evidence and the Court’s order for permanent total disability is not against the clear weight of the evidence.  AFFIRMED.  Opinion by GOREE, P.J.; MITCHELL, J., and PRINCE, J., concur. May 13, 2021

119,320 – Faustiana Development Corporation, Plaintiff/Appellant, v. Culbertson Memorial Fund, Todco Properties, Inc., R.l. Mccutchin, a/k/a Ronald Lee Mccutchin, Xto Energy, Inc., Teresa Rudman Revocable Trust, the  Peter M. Young and Tachina Rudman-Youong Revocable Trust, the Lauren Mobley Harrell Property Trust under Trust Agreement  Dated April 18, 2002, R.D. Williams & Company, Map 2012, L.L.C., Ferrell Oil Co., L.L.C., William A. Thau, III, Corsa, L.L.C., Deep Rock Minerals, L.L.C., Jennifer Thau Andreas, Anne Mcdaniel Company, L.L.C., Jean Mcdaniel Harrell, L.L.C., Hendrix Oil Company, L.L.C., Janice Culp, Black Hawk Royalty, III, L.P., Leigh Harvey, Laurel Harvey, Mekusukey Oil Company, L.L.C., Remington Royalty, II, L.C., White Eagle Aquisitions, L.L.C., Spartan Resources, L.L.C., Trailhead Exploration, L.L.C., and Kaiser-francis Oil Company, Defendants/Appellees.  Appeal from the District Court of Love County, Oklahoma.  Honorable Todd Hicks, Trial Judge.  Faustiana Development Corporation (“Appellant”), sought to have title quieted in its name for the the mineral rights in the N/2 NW/4 of Section 4-8S-2E, Love County, Oklahoma (the “Subject Property”).  Appellant appeals the trial court’s January 5, 2021 Order (“Order”), granting summary judgment in favor of Culbertson Memorial Fund, et al. (“Appellees”), and against Appellant, on Appellant’s causes of action for quiet title and declaratory judgment.  Pursuant to Oklahoma Supreme Court Rule 1.36(a)(1) and In re Amendments to Oklahoma ftlineSupreme Court Rules, 2013 OK 67, this appeal was assigned to the accelerated docket without appellate briefing.  After de novo review of the record and applicable law, we AFFIRM the trial court’s January 5, 2021 Order.  Opinion by PRINCE, J.; GOREE, P.J., and MITCHELL, J., concur. May 13, 2021

119,323 – In the Matter of the Estate of Clarence Fred Stites, Jr., Tythe Hill Stites, individually and as Personal Representative of the Estate of Clarence Fred Stites, Jr. Appellant. V. Jeffry Tapp Stites, Appellee.  Appeal from the District Court of Tulsa County, Oklahoma.  Honorable William J. Musseman, Judge.  Appellant Tythe Hill Stites (Ty), individually and as Personal Representative of the Estate of Clarence Fred Stites, Jr. (the Estate), challenges the probate court’s summary disposition order declaring the contents of a safe deposit box to be property of the Estate.  Ty contends Appellee Jeffry Tapp Stites (Jef) was required to file a separate civil action to determine ownership of property held adversely to the Estate and claims the court lacked jurisdiction to determine the issue due to Jef’s failure to do so.  After de novo review, we find 58 O.S. 2011 §1 expressly grants a court sitting in probate authority to decide in whom title to property is vested and whether or not property is part of the decedent’s estate.  Further, §1 did not require the filing of a separate civil action to invoke the court’s authority to decide this issue.  We AFFIRM.  Opinion by MITCHELL, J.; GOREE, P.J., and PRINCE, J., concur. May 13, 2021

Division II

118,837 — David Golzar, Plaintiff/Appellant, vs. AAA Fire & Casualty Insurance Company, Defendant/Appellee.  Appeal from orders of the District Court of Tulsa County, Hon. Doug Drummond, Trial Judge, vacating a default judgment entered against AAA Fire & Casualty Insurance Company.  Golzar asserts (1) the trial court lacked authority to grant relief to CSAA, who Golzar asserts is a non-party, (2) if CSAA is a proper party, it had actual notice of the action and the trial court should not have vacated the default judgment, and (3) even if CSAA did not have notice of the summons, 12 O.S. § 1031 requires proof that CSAA lacked actual notice of the action, not a particular filing within the action.  We first reject Golzar’s attempt to categorize CSAA as a non-party while at the same time attempting to collect the entire judgment from it.  We next conclude the trial court properly determined that service was ineffective because Golzar failed to comply with 36 O.S.2011 § 622.  Golzar’s attorney had been informed that the Insurance Commissioner’s office had not forwarded the service of process, he did not resend the process as directed by that office, he failed to send notice of the motion for default judgment knowing that there had been no service of process, and failed to inform the court that the Insurance Commissioner’s office had not forwarded the service of process before either of the entries of default adjudication.  Considering all of the foregoing, we conclude the trial court was well within its discretion to vacate the default judgment.  Finding no abuse of discretion, we affirm the trial court’s order vacating the default judgment.  AFFIRMED.  Opinion from the Court of Civil Appeals, Division II, by WISEMAN, P.J.; BARNES, J., and RAPP, J. (sitting by designation), concur. May 13, 2021

118,846 – Jacob Roseboom and Macy Roseboom, et al., Plaintiffs/Appellees, vs. The Town of Bokchito, Defendant/Appellant.  Appeal from an Order of the District Court of Bryan County, Hon. Mark R. Campbell, Trial Judge.  The defendant, The Town of Bokchito (Town), appeals an Order denying Defendant’s Motion for Judgment N.O.V. and the Journal Entry of Judgment entered on a jury verdict in favor of the plaintiffs, Jacob Roseboom and Macy Roseboom, individually and as natural parents of and next friends of K.R., G.R. and J.R., minors (collectively, Roseboom).  Town’s sole issue in this appeal is that the evidence was insufficient to support the claims of negligence and nuisance.  Town did not move for a directed verdict at the close of all evidence.  The statute and case law makes such a motion mandatory.  The absence of the motion at the close of all evidence means that the insufficiency of the evidence issue is not preserved for review by the Appellate Court.  Therefore, the judgment on the verdict and the Order denying Defendant’s Motion for Judgment N.O.V. are affirmed.  AFFIRMED.  Opinion from Court of Civil Appeals, Division IV, by RAPP, J.; FISCHER, V.C.J., and BARNES, J. (sitting by designation), concur.  May 13, 2021

118,230 – Landmark Real Estate, Inc., Plaintiff/Appellant, vs. Commercial Title & Escrow Services, Inc., Defendant/Appellee.  Appeal from an Order of the District Court of Tulsa County, Hon. Linda G. Morrissey, Trial Judge.  The plaintiff, Landmark Real Estate, Inc. (Landmark), appeals an Order on Defendant’s Motion to Dismiss (Order) which dismissed Landmark’s action against the defendant, Commercial Title & Escrow Services, Inc. (Commercial), based on the statute of limitations.  Dismissal of an action for failure to state a claim occurs when the petition does not, under any circumstances, state a claim.  Here, the allegations of the petition indicate that Landmark’s claim is not barred by the statute of limitations if Landmark can prove the allegations of its Petition and invoke the Discovery Rule.  Those facts have not been determined.  This dismissal for failure to state a claim is premature and error.  The trial court’s Order is therefore reversed.  REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.  Opinion from Court of Civil Appeals, Division II, by RAPP, J.; FISCHER, V.C.J., and WISEMAN, P.J. (sitting by designation), concur.  May 13, 2021

Division III

Division IV

119,058 – Bryan Linn Farms, and Compsource Mutual Insurance Company, Petitioners, vs. Arthur Monsebais, Jr. and The Workers’ Compensation Court, Respondents.  Proceeding to Review an Order of a Three-Judge Panel of The Workers’ Compensation Commission.  Employer, Bryan Linn Farms, appeals an Oklahoma Workers’ Compensation Commission Order Reversing the Decision of the Administrative Law Judge and authorizing total knee replacement surgery to the left knee of Claimant, Arthur Monsebais, Jr.  The need for medical treatment presents a question of fact.  This Court will not reweigh the evidence but will review the record to determine if there is substantial evidence to support the Commission’s decision.  The Commission’s decision that there was a connection between the on-the-job accident and the need for a total left knee replacement is supported by substantial competent evidence and is not contrary to law.  The Commission’s Order Reversing the Decision of the Administrative Law Judge is sustained.  SUSTAINED.  Opinion from Court of Civil Appeals, Division IV, by RAPP; FISCHER, V.C.J., and HIXON, P.J., concur.  May 18, 2021

118,410 – Charlynn Clayton, Plaintiff/Appellant, vs. Thomas Wayne Thralls, Defendant/Appellee, and Trumptight, LLC, Kelvin Gene Misner, Vic Regalado, Tulsa County Sheriff, Jacob Shope, Forrest Colpitt, Dennis Isaac, Greg Gilleland, an assigned to Janice B. Thralls, Robert W. Townsend, Wildlife Unlimited, LLC, Claude W. McCoy, Betty L. McCoy, Kelly Smith, Leann Smith, Taylor A. Spunaugle, Calvin Stevens, Ted Denton, Debbie Denton, Lawrence B. Wilson, III, Jeffery Case, Mary Case, Mike Edmonson and Carol Edmonson, Defendants.  Appeal from the District Court of Tulsa County, Hon. Jefferson D. Sellers, Trial Judge.  Charlynn Clayton (Clayton) appeals the trial court’s judgment finding restrictive covenants contained in a sheriff’s deed were valid.  The record provides Defendant Misner purchased the real property in question at auction.  The auction included a Sales Day Brochure notifying potential purchasers that restrictive covenants would be applied to the parcels sold.  After the Order Confirming Sale was filed, a sheriff’s deed containing the restrictive covenants was issued to Misner.  Misner did not object to the restrictive covenants.  Subsequently, Misner transferred the real property to Trumptight by quitclaim deed, and Clayton purchased the property at issue by general warranty deed from Trumptight.  The general warranty deed states the property is subject to “[e]asements and building restrictions of record.”  Accordingly, Clayton is estopped from denying the validity of the restrictive covenants contained in the sheriff’s deed.  Clayton was on constructive notice of the restrictive covenants because the covenants existed prior to her acquisition of title and were filed of record.  Clayton therefore took title to her property subject to the restrictive covenants.  The trial court’s judgment holding the restrictive covenants are enforceable is therefore affirmed.  AFFIRMED.  Opinion from Court of Civil Appeals, Division IV, by HIXON, P.J.; FISCHER, V.C.J., and RAPP, J., concur. May 18, 2021

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