Courts and More Vol. 1 | No. 30 | July 28, 2021

Oklahoma Court of Civil Appeals

Division I

Division II

Division III

118,601  –  Michael Andrews, Petitioner/Appellant, v. Heather Andrews, Respondent, Jacob W. Aycock, Guardian ad Litem/Appellee.  Appeal from the District Court of Tulsa County, Oklahoma.  Honorable C. Kevin Morrison, Trial Judge. Petitioner/Appellant Michael Andrews (Husband) appeals from the trial court’s order granting the Guardian ad Litem’s (GAL) Motion to Reduce Fees to Judgment. The order appointing the GAL directed Husband and Respondent Heather Andrews (Wife) to pay the GAL’s fees and costs equally divided.  After the parties failed to pay the amounts due to the GAL, he sought to reduce the balances to judgment. Husband sought dismissal of the GAL’s motion, arguing it was an untimely application for attorney fees, but the record plainly shows it was a motion to reduce to judgment an order made at the time the GAL was appointed. We AFFIRM.  Opinion by SWINTON, C.J.; PEMBERTON, P.J., and BELL, J., concur.  July 22, 2021

119,522  –  Akeshia Releford-Clark, individually and as parent of K.R., Plaintiff/Appellant, v. Tulsa Public Schools, Defendant/Appellee.  Appeal from the District Court of Tulsa County, Oklahoma.  Honorable Caroline Wall, Trial Judge. Akeisha Releford-Clark (Plaintiff) filed suit against Tulsa Public Schools (TPS) alleging that her minor son was injured on an elementary school playground as a direct result of negligence by school employees. Because Plaintiff failed to present to TPS notice of a tort claim within one year of the incident as required under the Governmental Tort Claims Act (GTCA), the trial court dismissed the claim with prejudice. The issue most central to this appeal is whether the time within which to present notice of the tort claim was tolled due to the purported incapacitation of the minor child for a few days immediately following the incident or due to the discovery rule. We hold that the time within which to present notice was not tolled, and because Plaintiff presented notice after the statutorily mandated deadline, the claim is barred. The trial court’s March 18, 2021 Order of Dismissal is otherwise free from error. We AFFIRM. Opinion by PEMBERTON, P.J.; SWINTON, C.J., and BELL, J., concur.  July 23, 2021

118,355  –  MTGLQ Investors LP, Plaintiff/Appellant, v. Joe H. Witherspoon, Cindy D. Witherspoon, Occupants of the Premises, Defendants/Appellees.  Appeal from the District Court of Tulsa County, Oklahoma.  Honorable Jefferson D. Sellers, Trial Judge.  In this mortgage foreclosure action, Plaintiff/Appellant, MTGLQ Investors LP, appeals from the trial court’s grant of summary judgment in favor of Defendants/Appellees, Joe H. Witherspoon and Cindy D. Witherspoon, on statute of limitations grounds.  Plaintiff’s predecessor in interest filed a foreclosure petition alleging a December 1, 2010, default and accelerating the debt.  The predecessor dismissed the suit without prejudice in 2014 and subsequently assigned the note and mortgage to Plaintiff.  On December 7, 2018, Plaintiff filed the instant foreclosure action, alleging a January 1, 2013, default.  We adopt the ruling in PNC Bank, Nat’l Ass’n v. Unknown Successor Trustees of the Robert C. Keck Revocable Living Trust, 2020 OK CIV APP 60, 479 P.3d 238, and hold neither the note nor mortgage authorized Plaintiff to deaccelerate the debt, Plaintiff took no action evidencing intent to deaccelerate the debt, and Plaintiff gave no notice to Defendants of deacceleration.  The mere voluntary dismissal of the previous foreclosure suit brought by Plaintiff’s predecessor did not toll the six (6) year statute of limitations set forth in 12A O.S. 2011 §3-118(a). AFFIRMED.  Opinion by BELL, J.; SWINTON, C.J., and PEMBERTON, P.J., concur.  July 27, 2021

Division IV

118,596 — The Sloan Family Trust, Martha Jo Sloan, Trustee, Plaintiff/Appellant/ Cross-Appellee, vs. Butkin Oil Company, L.L.C., Defendant/Appellee/Cross-Appellant, John Majors, an individual, and J & R Well Service, Inc., Defendants.  Appeal from an Order of the District Court of Garvin County, Honorable Leah Edwards, Trial Judge.  The Sloan Family Trust, Martha Jo Sloan, Trustee (Trust) appeals an order denying its motion for an attorney’s fee and costs.  Butkin Oil Company, LLC (Butkin) counter-appeals the trial court’s order denying its motion for an attorney’s fee and costs.  Both parties assert they are the prevailing party entitled to fees and costs pursuant to 12 O.S.2011, § 940(A).  Trust was the only party that was awarded relief on the merits of its claims and received a money judgment.  However, Trust did not prevail on a fee-bearing claim.  The trial court’s order denying Trust’s motion for fees and costs is therefore affirmed.  Furthermore, any success Butkin had in defending Trust’s theories of recovery does not make it the prevailing party.  Accordingly, Butkin was not entitled to fees under § 940(A).  The order denying Butkin’s motion for an attorney’s fee and costs is also affirmed.  AFFIRMED.  Opinion from the Court of Civil Appeals, Division IV, by HIXON, P.J.; FISCHER, V.C.J., and RAPP, J., concur.   July 22, 2021

118,836 — Adrian Sconyers, Plaintiff/Appellee, vs. Oklahoma Department of Human Services, Defendant/Appellant, and Oklahoma Merit Protection Commission, Defendant/Appellee.  Appeal from an Order of the District Court of LeFlore County, Honorable Jonathan K. Sullivan, Trial Judge.  Oklahoma Department of Human Services (DHS) appeals an order finding that Adrian Sconyers (Sconyers) was entitled to have his costs, in the amount of $11,421.39, paid by DHS pursuant to 12 O.S.2011, §§ 930, 942.  DHS asserts that costs could only be awarded pursuant to 75 O.S.2011, § 318(D), but that Sconyers was not entitled to an award of costs under such statute.  We find the trial court erred by awarding costs under sections 930 and 942.  We also find section 318(D) does not provide for an award of costs payable by DHS in the present case.  We therefore reverse the district court’s order finding Sconyers was entitled to an award of costs pursuant to sections 930 and 942.  REVERSED.  Opinion from the Court of Civil Appeals, Division IV, by HIXON, P.J.; FISCHER, V.C.J., concurs, and RAPP, J., dissents.   July 23, 2021

118,991 – William J. Nedbalek, Jr. and Patricia Nedbalek, Plaintiffs/Appellees, and William J. Nebelek, III and Carolyn A. Nedbalek, Plaintiffs, vs. Bryan D. Raymer and BDR Ranch, LLC, a domestic limited liability company, Defendants/Appellants, and Covell 100, LLC, Defendant.  Proceeding to review an Order of the District Court of Canadian County, Hon. Paul Hesse, Trial Judge.  Bryan D. Raymer appeals the trial court’s July 20, 2020 judgment against him in the amount of $48,384.88 in favor of William J. Nedbalek, Jr. and Patricia Nedbalek, for violation of the statutory right to lateral support of their real property.  BDR Ranch, LLC also appeals the trial court’s finding that it failed to prove Mr. Nedbalek trespassed on its property.  Based on our review of the record and applicable law, we affirm the trial court’s finding that Mr. Raymer violated the Nedbaleks’ statutory right to lateral support and the award of damages.  However, we reverse the trial court’s conclusion that Mr. Nedbalek did not trespass on BDR Ranch’s property despite finding that he constructed a berm on its property without permission, and we remand for further proceedings consistent with this Opinion.  AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS.  Opinion from the Court of Civil Appeals, Division IV by HIXON, P.J.; FISCHER, V.C.J., concurs, and RAPP, J., concurs in part and dissents in part.  July 27, 2021

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