Courts and More Vol. 1 | No. 23 | June 9, 2021

Oklahoma Court of Civil Appeals

Division I

Division II

118,220 – In re the Marriage of: R. Smith, Petitioner/Appellee, v. K. Smith, Respondent/Appellant.  Appeal from the District Court of Tulsa County, Hon. Owen T. Evans, Trial Judge.  In this dissolution of marriage proceeding, Appellant K. Smith (Father) appeals from the trial court’s decree of dissolution of marriage, the court’s denial of his motion to reconsider/new trial, and its order awarding attorney fees to Appellee R. Smith (Mother).  From our review of the law and facts, we conclude the trial court did not err as a matter of law with respect to its findings of fact and conclusions of law and its visitation schedule, or abuse its discretion with respect to its custody and visitation award.  We also conclude the trial court did not abuse its discretion in its division and award of marital assets and debts between the parties except we conclude the trial court abused its discretion in its award to Mother of a credit for one half of the marital funds used for the repair and improvement of the rental property;  consequently, we modify that part of the Decree by reducing the award of debts and credits to Mother to $10,530.50 and by reducing the $12,926 money judgment to $11,667.25, for a total net award to each party of $10,704.75.  We further conclude the trial court did not abuse its discretion in its award of attorney fees to Mother.  Consequently, the trial court did not abuse it discretion in denying Father’s motion for new trial.  Accordingly, we affirm as modified.  AFFIRMED AS MODIFIED.  Opinion from Court of Civil Appeals, Division II, by BARNES, J.; WISEMAN, P.J., and HIXON, J. (sitting by designation), concur. June 3, 2021

Division III

Division IV

118,650 – Tres C, LLC, Plaintiff/Appellee, vs. Raker Resources, LLC; Continental Resources, Inc. and DewBlaine Energy, LLC, Defendants/Appellants.  Appeal from an Order of the District Court of Blaine County, Hon. Paul K. Woodward, Trial Judge.  The defendants, Raker Resources, LLC (Raker); Continental Resources, Inc. (Continental); and DewBlaine (DewBlaine), appeal a Journal Entry of Judgment ruling in favor of the plaintiff, Tres C, LLC (Tres), and cancelling an oil and gas lease held by Defendants.  This is an appeal of the trial court’s ruling cancelling an oil and gas lease on the ground that there was a cessation of production and no successful remedial action or drilling of a new well occurred within the sixty-day grace period agreed upon in the oil and gas lease.  The trial court’s findings of the facts regarding cessation of production and absence of successful remedial action or drilling are not disputed.  The Cowan Lease is clear, and the grace period is sixty days rather than the common law reasonable time.  The trial court did not err in its ruling applying the facts to the Cowan Lease contract.  There was a cessation of production in paying quantities and a failure to cure the issue within the contractually allotted time.  In the absence of a noncontractual defense, the Cowan Lease expired.  However, the trial court left unaddressed the noncontract defense of obstruction.  This defense was raised in the trial court and briefed by the parties on appeal.  Because the Appellate Court does not make first instance finding of facts and law, this case must be remanded to the trial court to rule on the obstruction defense.  CONDITIONALLY AFFIRMED AND REMANDED WITH INSTRUCTIONS FOR FURTHER PROCEEDINGS.  Opinion from Court of Civil Appeals, Division IV, by RAPP, J.; FISCHER, V.C.J., and HIXON, P.J., concur. June 8, 2021

118,835 – Kelly Centre, LLC, Plaintiff/Appellee, vs. KMDP, LLC, and Kim Massay, Defendants/Appellants.  Appeal from an Order of the District Court of Oklahoma County, Hon. Aletia Haynes Timmons, Trial Judge.  The defendants, KMDP, LLC (KMDP) and Kim Massay (Massay), appeal a Journal Entry denying their application for attorney fees in an action brought by Kelly Centre, LLC (KC).  After dismissal of the action, KMDP and Massay sought attorney fees.  They specifically relied on Section 936 and Section 940 of Title 12.  These statutes are prevailing party statutes.  They also cite Section 2011 of Title 12, a sanctions statute that is also a prevailing party statute.  The trial court dismissed the action because the named plaintiff no longer existed because its charter had expired, or because a separate action was pending with a current plaintiff.  There must be a judgment on the merits to qualify a party as a prevailing party.  The dismissal here did not qualify as a judgment on the merits.  KMDP and Massay are not prevailing parties.  Therefore, they are not entitled to attorney fees.  In addition, Counsel for KMDP and Massay did not follow the procedure established under Section 2011 and this constitutes an additional ground to deny an award of attorney fees under Section 2011.  The trial court’s denial of the Application for attorney fees is affirmed.  AFFIRMED.  Opinion from Court of Civil Appeals, Division IV, by RAPP, J.; FISCHER, V.C.J., and HIXON, P.J., concur. June 8, 2021

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