Dispositions Other than by Published Opinions | August 4

August 3, 2021

Courts and More Vol. 1 | No. 31 | August 4, 2021

Oklahoma Court of Civil Appeals

Division I

118,491 – Harold Clark, Plaintiff/Appellee, v. Michael K. McKinney, Defendant/Appellant. Appeal from the District Court of Oklahoma County, Oklahoma.  Honorable Aletia Haynes Timmons, Judge. Michael McKinney, Defendant/Appellant, appeals the jury verdict awarding Harold Clark, Plaintiff/Appellee, damages for breach of contract. For 20 years the parties operated under a written agreement to pay Clark commissions for contracts sold on behalf of McKinney’s business. Later, McKinney stopped paying commissions. After the trial, the jury returned a verdict for Clark.  McKinney appeals the final order claiming error for the trial court’s summary adjudication determining the parties breached the agreement, and in giving a particular jury instruction.  Because McKinney failed to demonstrate reversible error, we AFFIRM.  Opinion by GOREE, P.J.; MITCHELL, J., concurs, and PRINCE, J., special concurs. July 29, 2021

118,657 – Green Planet Servicing, LLC, Plaintiff/Appellee, v. Kathryn E. White, Richard Roe (real name unknown), Spouse, if any, of Kathryn E. White, Castle Credit Corporation, Stonebridge West Property Owners Association, Inc., John Doe (real name unknown), and Jane Doe (real name unknown), Defendants, v. Kathryn W. White, Appellants. Appeal from the District Court of Canadian County, Oklahoma.  Honorable Paul Hesse, Trial Judge.  This appeal arises out of a foreclosure action initiated on April 8, 2014, by Green Planet Servicing, LLC (“Appellee”) against Kathryn E. White (“White”), et al.  Appellee initiated the foreclosure after White (“Appellant”) ceased making payments to Appellee due under a promissory note dated August 18, 2010 (the “Note”).  On September 17, 2019, Appellee filed its Motion for Summary Judgment (“MSJ”), alleging that there was no genuine issue of material fact and that Appellee was, therefore, entitled to judgment as a matter of law.  On October 17, 2019, Appellant filed its Response to Appellee’s MSJ (“Response”).  The trial court thereafter requested that Appellee file a Reply to Appellant’s Response (“Reply”).  After Appellee’s Reply was filed, the trial court requested that Appellant file a Sur-Reply to Appellee’s Reply (“Sur-Reply”).  After reviewing the pleadings and exhibits, the trial court granted Appellee’s MSJ, entering its Order memorializing its decision in favor of Appellee on January 16, 2020.  Pursuant to Oklahoma Supreme Court Rule 1.36(a)(1) and In re Amendments to Oklahoma Supreme 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 16, 2020 Order granting Appellee’s MSJ.  Opinion by PRINCE, J.; GOREE, P.J., and MITCHELL, J., concur. July 29, 2021

118,761 – Kim Fox Jones, as Personal Representative of the Estate of Brennen James Atkeson, Deceased, Plaintiff. v. Union Carbide Corporation, Montello, Inc. and National Oilwell Varco, L.P., Defendants, and Khaliliah Smith-Atkeson, Appellant, Kim Fox-Jones, individually; Nakesha Atkeson in her capacity as mother of decedent’s minor child, K.A., and guardian of the person and property of K.A.; and Gregory (Rusty) Atkeson, individually, Appellees.  Appeal from the District Court of Pontotoc, Oklahoma.  Honorable Steven Kessinger, Judge.  In a prior appeal in the same trial court case, we affirmed a judgment, based on a jury’s verdict, in excess of $8 million in favor of a decedent’s estate. The estate had sued various manufacturers and suppliers of asbestos for damages stemming from the decedent’s death, which resulted from mesothelioma he contracted after inhaling asbestos fibers brought home on his stepfather’s clothing in the early 1980s. Prior to trial, the estate settled with two former defendants. The trial court entered an order distributing the settlement proceeds. Over her objection, the surviving spouse was denied any portion of the funds.  The surviving spouse appealed. Because the trial court correctly determined that the surviving spouse was not entitled to any of the settlement proceeds under our wrongful death statute, we AFFIRM.  Opinion by MITCHELL, J.; GOREE, P.J.,concur in result, and PRINCE, J., concurs. July 29, 2021

Division II

119,248 – Deutsche Bank National Trust Company, as Trustee for the Registered Holder of the EquiFirst Mortgage Loan Trust 2005-1, Asset-Backed Certificates, Series 2005-1, Plaintiff/Appellee, v. Bernard K. Johnson, Defendant/Appellant, and Mary Roe (real name unknown), spouse, if any, of Bernard K. Johnson; Mortgage Electronic Registration Systems, Inc., as Nominee for EquiFirst Corporation, its successors and assigns; Federal Home Loan Mortgage Corporation; Valley View Regional Hospital; John Doe (real name unknown) and Jane Doe (real name unknown), Defendants.  Appeal from the District Court of Oklahoma County, Hon. Thomas E. Prince, Trial Judge.  In this mortgage foreclosure action, Appellant appeals from a Journal Entry of Judgment of Foreclosure granting summary judgment to Appellee and foreclosing a mortgage on certain real property.  From our review of the summary judgment record, we conclude the uncontroverted material facts demonstrate that even if Appellant’s attempted payments are considered a valid and legal tender, that tender was later abandoned by an agreement between the parties.  Other issues raised by Appellant are either unsupported by the summary judgment record or are moot.  We, therefore, conclude the trial court properly granted summary judgment to Appellee and entered the foreclosure judgment against Appellant.  Accordingly, we affirm. AFFIRMED.  Opinion from the Court of Civil Appeals, Division II, by BARNES, J.; WISEMAN, P.J., and FISCHER, V.C.J. (sitting by designation), concur.  July 30, 2021

119,601 – Lamar Central Outdoor, LLC, Plaintiff/Appellant, v. The City of Oklahoma City, an Oklahoma municipal corporation, Defendant/Appellee, and Heartland Cattle Company, a domestic for-profit corporation; Lex, LLC, an Oklahoma limited liability company; Jeffrey Moore, an individual; Midland Capital, LLC, an Oklahoma limited liability company; David Miller, an individual; and Broadway Landing, Inc., a domestic for-profit corporation, Intervenors/Appellees.  Appeal from the District Court of Oklahoma County, Hon. Don Andrews, Trial Judge.  The district court dismissed with prejudice the petition of Appellant on the basis that it lacks standing.  We summarily reverse under Oklahoma Supreme Court Rule 1.201, 12 O.S. 2011, ch. 15, app. 1, which provides that “[i]n any case in which it appears that a prior controlling appellate decision is dispositive of the appeal, the court may summarily affirm or reverse, citing in its order of summary disposition this rule and the controlling decision.”  The controlling decision is Cox Oklahoma Telecom, LLC v. State ex rel. Oklahoma Corporation Commission, 2007 OK 55, 164 P.3d 150.  SUMMARILY REVERSED UNDER RULE 1.201.  Opinion from Court of Civil Appeals, Division II, by BARNES, J.; WISEMAN, P.J., and RAPP, J. (sitting by designation), concur. August 2, 2021

Division III

118,908 – Jon Christian, Petitioner/Appellee, v. Daisy Christian, Respondent/Appellant.  Appeal from the District Court of Stephens County, Oklahoma.  Honorable Dennis L. Gay, Trial Judge. Daisy Christian (Wife/Appellant) appeals the June 11, 2020 denial of her motion for new trial, which Wife sought after a divorce decree was entered. The Stephens County District Court issued the June 30, 2016 Decree of Dissolution of Marriage, granting the divorce and property division of Jon (Husband/Appellee) and Daisy Christian after a four day trial. Wife raises seven propositions of error, each of which relate in some fashion to the trial court’s division of property and are subject to an abuse of discretion standard. With respect to Wife’s contentions, we find the trial court did not abuse its discretion; therefore, we AFFIRM.  Opinion by PEMBERTON, P.J.; SWINTON, C.J., and BELL, J., concur. July 29, 2021

Division IV

119,274 –  (Consolidated with Case No. 119,283) – In the Matter of M.B., M.B., and J.B., Deprived Children, Shawn Brading and Maria Garcia, Appellants, vs. State of Oklahoma, Appellee.  Appeal from an Order of the District Court of Craig County, Hon. Joseph Gardner, Trial Judge.  Shawn Brading (Father) and Maria Garcia (Mother, or collectively, Parents) appeal an Order terminating their parental rights to minor children M.B., M.B. and J.B., pursuant to 10A O.S. Supp. 2016, § 1-4-904(B)(14), following non-jury trial and adjudication of the children as deprived on the same grounds for which the children had been previously adjudicated deprived, and had received an opportunity to correct.  Parents each contend that the trial court erred by proceeding to immediate termination without conducting a dispositional hearing and entering a new Individualized Service Plan (ISP) to provide them additional opportunities to correct the conditions that led the children to be adjudicated deprived in the prior action.  Parents also contend that the trial court’s finding that their parental rights should be terminated is not supported by clear and convincing evidence that termination of Parents’ rights to the children is in their best interests.  We reject Parents’ assertions of error and affirm the trial court’s order of November 19, 2020.  AFFIRMED.  Opinion from Court of Civil Appeals, Division IV, by HIXON, P.J.; FISCHER, V.C.J., concurs, and RAPP, J., dissents. July 30, 2021

119,302 – Carole Hatcher; Craig Dale Ames; Jimmy Mark Ames; Carol Elaine Baskett; Deborah Jo Bradt; Joanne K. Buckmaster & Jennifer Lynn Majma; Sandra Ruth Clark; Alan Deck; Chris Didier and Kari Didier; Daniel Dean Eyster; Carolyn Ervin and Bobby Ervin; David Eyster; Kathleen Eyster; Douglas Eyster, Trustee of the Melvin Eyster 1992 Revocable Trust; Beth Hollan, a/k/a Leah Beth Hollan; Chad Hutchison; Ray Hutchison and Cheryl Hutchison; Billy Ice and Priscilla Ice; Ferris H. Jones; Sallie A. Kaiser and Karen A. Dellinger, Co-Trustees of the Kaiser Marital Trust; Brett Kent Kirkpatrick and Kathy Jane Kirkpatrick; Kari Didier and Beth Switzer, Co-Trustees of the Emma Eugenia Kirkpatrick Family Trust; Benjamin O. Kraybill, Trustee of the Benjamin O. Kraybill Revocable Trust; James McAvoy, Trustee of the McAvoy Revocable Trust; Jennifer McManus; Margaret Beth Morris; Derrell L. Nantze; Rhonda Payne and Brent Payne; Scott Bradley Perkins; Donna Sue Moore, Trustee of the Barbara L. Potter Revocable Trust; Ralph S. & Phyllis E. Miller, Co-Trustees of the Ralph S. & Phyllis E. Miller Revocable Trust; Caroline Roof; Kenneth E. Roof, II; Kimberly Lynn Roof; Linda Russell; Richard Schmidt; Russell Schmidt; Kathie Switzer; Phillip Switzer; Joe Youngblood and Sandra Massey Youngblood; Dennis Zook, Trustee of the Jason R. Zook Revocable Intervivos Trust and as Successor-in-Interest to the Nellie E. Zook Revocable Intervivos Trust; Kari Didier and Beth Switzer, Co-Trustees of the Milton K. Kirkpatrick Revocable Trust; Dr. Ann Kaiser Stearns, Trustee of the Dr. Ann Kaiser Stearns Living Trust; John Brian Hamar; Donna Jean Alexander; and John Brian Hamar and Donna Jean Alexander, Trustees of the Eloise Keller 1993 Living Trust, Plaintiffs, and Gary Mol, Celia Mol, and Barbara Yearwood, Plaintiffs/Appellants, vs. Continental Resources, Inc., Defendant/Appellee.  Appeal from an Order of the District Court of Custer County, Hon. Jill C. Weedon, Trial Judge.  Three of the plaintiffs, Gary Mol, Celia Mol and Barbara Yearwood, appeal the Journal Entry which dismissed them as plaintiffs on the ground of lack of venue.  The dismissal was without prejudice to refiling in a court with proper venue.  Continental moved to dismiss several of the plaintiffs for lack of proper venue and the trial court sustained the motion.  This Court finds that 12 O.S.2011, § 134 is a special statute which addresses venue.  12 O.S.2011, § 2020 is a general statute which addresses venue only by implication.  Section 134 controls and applies.  The action of the appellants G. Mol and Barbara Yearwood has proper venue in Custer County because their oil and gas contract became effective in Custer County according to its terms as drafted by Continental.  The trial court erred in dismissing these two parties.  The appellant Celia Mol has no connection with Custer County which would afford venue under the controlling venue statute.  The trial court did not err by dismissing Celia Mol due to improper venue.  The judgment of the trial court is affirmed in part, reversed in part and remanded for further proceedings.  AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS.  Opinion from Court of Civil Appeals, Division IV, by RAPP, J.; FISCHER, V.C.J., and HIXON, P.J., concur.  August 3, 2021

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