Courts and More Vol. 1 | No. 15 | April 14, 2021

Oklahoma Court of Civil Appeals

Division I

118,339 – Brian Friend, Petitioner/Appellant, v. Kirsten Friend, Respondent/Appellee. Appeal from the District Court of Seminole County, Oklahoma.  Honorable Timothy Olsen, Trial Judge. The issue presented in this appeal is whether the trial court had the authority to award attorney fees in a domestic relations matter without holding an evidentiary hearing when the party opposing the fees had agreed, in open court, that the only issue is whether the requesting party is entitled to any fees and that it boiled “down to argument”.  The Petitioner/Appellant, Brian Friend (“Father”), was ordered to pay the Respondent/Appellee, Kirsten Friend (“Mother”), attorney fees in the amount of $19,604.14.  Father appeals the judgment and claims that the trial court committed error when it issued an award of attorney fees in the absence of an evidentiary hearing.  We disagree and AFFIRM the trial court.  Opinion by PRINCE, J.; GOREE, P.J., concurs and MITCHELL, J., dissents. April 9, 2021

118,343 – In the Matter of the Estate of Pauline Z. Freeman: Elisha Lynn March, Appellant, v. Dennis Freeman, Appellee.  Appeal from the District Court of Tulsa, Oklahoma.  Honorable Kurt G. Glassco, Trial Judge.  In a probate action, Elisha March, Appellant, appeals two mid-probate orders: a Judgment concluding two bank accounts were excluded from the probate estate and an Order confirming the sale of property. Dennis Freeman, Appellee, is the Administrator of the estate of Pauline Z. Freeman, Decedent. Based on the record on appeal, the trial court’s Judgment including the bank accounts in the probate estate was clearly contrary to the weight of evidence and contrary to governing principles of law. The other Order complied with statutory requirements. Reversed in part and affirmed in part.  Opinion by GOREE, P.J.; MITCHELL, J., and PRINCE, J.,concur. April 9, 2021

118,830  – Melani G. Hill, Petitioner/Appellant, v. Goodwill Industries of Duncan, Compsource Mutual Insurance Company, and The Workers’ Compensation Court of Existing Claims, Respondents/Appellees. Proceeding to Review an Order of the Workers’ Compensation Court of Existing Claims.  Honorable Carla Snipes, Judge.  Petitioner/Appellant, Melani G. Hill (“Claimant”), appeals from an order of the Workers’ Compensation Court of Existing Claims (“WCC”), which ordered recoupment of the overpayment made to Claimant.  Claimant argues on appeal that the order for recoupment is too vague to identify the factual basis for, or the amount of the overpayment in question.  We agree with Claimant.  We reverse the Order Awarding Attorney Fees filed on April 8, 2020, and remand for further proceedings. REVERSED AND REMANDED.  Opinion by PRINCE, J.; GOREE, J., and MITCHELL, J., concur. April 9, 2021

119,013 – FIRST NATIONAL BANK & TRUST COMPANY OF WEATHERFORD, N.A., Plaintiff/Appellee, v. NEW FALLS CORPORATION, a foreign corporation, Defendant/Appellant, RYAN G. BLEVINS; JANE DOE NO. 1, the unknown spouse of Ryan Blevins, if married; DIANA WISSINGER; JOHN DOE NO. 1, the unknown spouse of Diana Wissinger if married; R & D GOLD CORP., a Colorado corporation; ROCKY MOUNTAIN RECLAMATION, INC., a North Dakota corporation; JOHN T. KARLIN; DAWN M. KARLIN; BANK OF COMMERCE, successor in interest by merger to Anadarko Bank and Trust Company; John  Doe  Occupant No. 1, the unknown occupant of 23820 W. Jensen Rd.m Calumet, OK; Jane Doe Occupant  No. 1, the  unknown  occupant  of 23820 W. Jensen Rd., Calumet, OK; John Doe Occupant No. 2,  the unknown occupant of the NE/4 of Section 27, T11N, R10W, Canadian County, Oklahoma; JANE DOE OCCUPANT NO. 2, the unknown occupant of the NE/4  of Section 27, T11N, R10W, Canadian County, Oklahoma; D.R.D. ENVIRONMENTAL SERVICES, INC., an Oklahoma corporation; DRD  WASTE TREATMENT SOLUTIONS, INC.; HIGH PLAINS EQUIPMENT LEASING CO., an Oklahoma corporation; FALCON BANCORP, INC., an Oklahoma corporation (Dissolved in 2015); and the UNKNOWN SUCCESSORS OF ANADARKO BANK AND TRUST COMPANY, Defendants.  Appeal from the District Court of Canadian County, Oklahoma.  Honorable Paul Hesse, Trial Jude. Defendant/Appellant New Falls Corporation (“Appellant”), judgment creditor of several of the abovenamed Defendants, appeals the trial court’s July 23, 2020 Order (“Order”), granting summary judgment in favor of Plaintiff/Appellee First National Bank & Trust Company of Weatherford, N.A. (“Appellee”), on its claims of breach of contract,  foreclosure and quiet title, and replevin.  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 IN PART, REVERSE IN PART, AND REMAND FOR FURTHER PROCEEDINGS. Opinion by PRINCE, J.; GOREE, P.J., and MITCHELL, J., concur. April 9, 2021

Division II

118,425  – In re the Marriage of:  Joni Thomas, Petitioner/Appellant, vs. Ronnie L. Thomas, Respondent/Appellee.  Appeal from an order of the District Court of Tulsa County, Hon. C. Kevin Morrison, Trial Judge, denying Joni Thomas’ application for attorney fees and costs incurred in this dissolution of marriage action.  Joni rests her case for attorney fees and costs on 43 O.S.2011 § 110(D) and 43 O.S.2011 § 112.6.  She argues a disparity in income, a disparity in the value of property awarded, and Ronnie’s failure to make a settlement offer at mediation, which she contends unnecessarily delayed the proceedings, all contribute to her entitlement to attorney fees and costs as a matter of equity.  She further argues she is entitled to fees and costs “because of the incidences of domestic violence.”  We have examined the record to ascertain whether the trial court abused its discretion in denying Joni’s quest for fees and costs in this divorce case.  We conclude the trial court properly denied this application, and finding no abuse of discretion, we affirm the order.  AFFIRMED.  Opinion from the Court of Civil Appeals, Division II, by WISEMAN, P.J.; BARNES, J., and HIXON, J. (sitting by designation), concur. April 8, 2021

118,477 –  In re the Marriage of:  Joseph Sucharda, Petitioner/Appellant, vs. Rhonda Sucharda, Respondent/Appellee.  Appeal from an order of the District Court of McClain County, Hon. Charles Gray, Trial Judge, awarding Rhonda Sucharda (Mother) fees of $83,901 following three years of post-decree litigation surrounding custody, visitation and child support issues.  The highly contentious nature of this post-decree litigation made substantial legal expenditures an inevitable consequence.  The trial court in equity determined that Mother should receive a fee award, and based on our review of the record, we find that decision, and the amount ordered, to be within its discretion.  AFFIRMED.  Opinion from the Court of Civil Appeals, Division II, by WISEMAN, P.J.; BARNES, J., and HIXON, J. (sitting by designation), concur. April 9, 2021

118,810 –  In the matter of D.D., Jr., deprived child:  Daniel DeLeon, natural father, Appellant, vs. State of Oklahoma, Appellee.  Appeal from Order of the District Court of Tulsa County, Hon. Theresa Dreiling, Trial Judge.  Daniel Deleon, Sr. appeals the district court’s adjudication of minor child DD as deprived.  After review of the record and applicable law, we find a lack of competent evidence to support the district court’s order adjudicating DD as deprived on the ground of failure to protect from physical abuse.  Those portions of the district court’s order adjudicating DD deprived as to Daniel are vacated.  VACATED IN PART.  Opinion from Court of Civil Appeals, Division IV, by FISCHER, V.C.J.; HIXON, P.J., and RAPP, J., concur.  April 9, 2021

Division III

117,623  – In The Marriage of Belk: John Belk, Petitioner/Appellant, v. Francia Kelly, f/k/a/ Francia Belk, Respondent/Appellee.  Appeal from the District Court of Tulsa County, Oklahoma.  Honorable Stephen R. Clark, Judge.  Petitioner/Appellant John Belk (Father) appeals the trial court’s order denying Father’s Motion to Reconsider its order granting Respondent/Appellee Francia Belk’s (Mother) application to relocate the residence of the parties’ child.  The parties have joint custody of the child and Mother is the designated primary physical custodian; accordingly, she was entitled to seek approval to relocate the child.  The trial court’s order approving relocation was not against the clear weight of the evidence or an abuse of discretion and we AFFIRM the denial of Father’s Motion to Reconsider. Opinion by SWINTON, C.J., PEMBERTON, P.J., and BELL, J., concur. April 6, 2021

118-294  – In Re the Marriage of Meadows: Elizabeth Machell Meadows, Petitioner/Appellee, v. Casey Meadows, Respondent/Appellant.  Appeal from the District Court of Okmulgee County, Oklahoma.  Honorable Ken Adair, Judge.    In this dissolution of marriage proceeding, Respondent/Appellant, Casey Meadows (Husband), appeals the trial court’s division of property, support alimony award and child support calculation.  Husband also appeals the trial court’s determination that Husband’s child support was in arrears and the court’s award to Wife of attorney fees.  We hold the trial court erred when it designated the second home as separate property.  However, because the trial court has the discretion to accept Wife’s valuation of the second home as having no equity, the error is  harmless.  We affirm the trial court’s property division.  We hold the trial court did not abuse its discretion when it awarded Wife support alimony and when it determined Husband’s income for support purposes. We also hold the trial court properly ordered Husband to pay child support arrearage.  The attorney fee issue is not subject to review.  For the reasons set forth, we AFFIRM.  April 6, 2021

118,338 – OSU- AJ Homestead Medical Clinic, PLC, and Moore Primary Care, Inc., Plaintiffs/Appellants, v. Oklahoma Health Care Authority, Oklahoma Health Care Authority Board, and Rebecca Pasternik-Ikard, Administrator of the Oklahoma Health Care Authority, Defendants/Appellees. Appeal from the District Court of Cleveland County, Oklahoma.  Honorable Lori M. Walkley, Trial Judge.  Plaintiffs/Appellants, OSU-AJ Homestead Medical Clinic, PLC (Homestead), and Moore Primary Care, Inc. (MPC), appeal from two (2) trial court rulings, both of which were based, at least in part, on the Plaintiffs’ lack of standing.  Homestead appeals from the trial court’s order dismissing Homestead’s underlying case against Defendants/Appellees, the Oklahoma Health Care Authority and several of its employees (collectively OHCA).  MPC appeals from the trial court’s order granting summary judgment in favor of OHCA.  After OHCA performed Medicaid billing audits, Plaintiffs were required to refund substantial amounts of Medicaid payments to OHCA.  Administrative proceedings began and Plaintiffs brought the underlying district court actions for various relief, including a declaratory judgment.  Upon de novo review, we hold the trial court correctly dismissed both Petitions on standing grounds.  The OSU Center for Health Sciences, not Homestead, has a recognized legal interest in the application of the OHCA audit rules in this case.  MPC cannot show the subject rules interfered with or impaired, or threatened to interfere with or impair, its legal rights or privileges, because OHCA withdrew its audit of MPC and its administrative appeal was dismissed, and MPC ceased operating as a business in Oklahoma in 2017.  Further, MPC cannot maintain this suit because its corporate charter was suspended.  AFFIRMED.  Plaintiffs’ motion (1) challenging OHCA’s jurisdiction to conduct the subject audits, and (2) seeking a writ of prohibition is DENIED. Opinion by BELL, J.; SWINTON, C.J., and PEMBERTON, P.J., concur. April 9, 2021

119,293  – Tianjing Xinchao Machinery Electrical Equipment Co. LTD., and DCF, L.L.C., Plaintiffs/Appellees, v. Slyder Energy Solutions, L.L.C., Defendant/Appellant. Appeal from the District Court of Lincoln County, Oklahoma.  Honorable Cynthia Ferrell Ashwood, Trial Judge.  Slyder Energy Solutions, L.L.C. appeals the trial court’s grant of summary judgment in favor of Tianjing Xinchao Machinery Electrical Equipment Co. Ltd. and DCF, L.L.C., awarding Tianjing $259,481.26, plus interest, and DCF $5,523.38, plus interest, related to oilfield equipment Slyder ordered from Tianjing in November 2018 and which was delivered in March and April 2019. Slyder’s basic proposition is that disputed questions of material fact should have prevented summary judgment. As relates to Tianjing, the dispositive issue is whether Slyder timely, if ever, notified Tianjing of Slyder’s intention to deduct from amounts owed damages resulting from a purported breach of the contract, thereby legally justifying partial non-payment. The undisputed material facts reveal Slyder neglected to timely, if at all, notify Tianjing of a breach or any intention to withhold amounts owed, and therefore, Tianjing was entitled to judgment as a matter of law. DCF, however, was not entitled to judgment on the record presented, as the record does not reveal any agreement or obligation for Slyder to pay DCF. For those reasons, we affirm in part, reverse in part, and remand for further proceedings between Slyder and DCF. For the reasons provided, the December 4, 2020 order of the Lincoln County District Court granting the summary judgment motion of Appellees’, Tianjing and DCF, is AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Opinion by PEMBERTON, P.J.; SWINTON, C.J., and BELL, J., concur. April 9, 2021

118,704  – Steven Martinez, an indivudual, Gregorio Martinez, an individual, Plaintiffs/Appellants, v. City of Tulsa, Defendant/Appellant. Appeal from the District Court of Tulsa County, Oklahoma.  Honorable Rebecca Nightingale, Trial Judge. Steven Martinez and Gregorio Martinez, a same-sex couple who married in another jurisdiction prior to such unions being recognized in Oklahoma, seek reversal of the trial court’s order determining Appellee City of Tulsa did not violate Steven Martinez’s First Amendment rights and both Appellants’ Fourteenth Amendment rights related to the termination of Steven’s employment with the City of Tulsa and the denial of health insurance benefits to Gregorio, Steven’s claimed dependent. Steven contends the City of Tulsa violated his First Amendment rights by firing him in retaliation for engaging in instances of protected speech, namely related to aggressive efforts to secure health insurance benefits for Gregorio. Using the Garcetti/Pickering analysis, we find Steven’s instances of speech were not constitutionally protected. Therefore, the City of Tulsa did not violate Steven’s First Amendment rights. Appellants further contend the City of Tulsa violated their Fourteenth Amendment rights by not recognizing Appellants’ relationship as a legal marriage for purposes of spousal-employment benefits. For the duration of Steven’s employment with the City of Tulsa, same-sex marriage was not recognized under the Oklahoma Constitution. As such, pursuant to the applicable analysis, the City of Tulsa could not have, and did not, violate Steven’s Fourteenth Amendment rights. Thus, we AFFIRM the trial court’s Order.  Opinion by PEMBERTON, P.J.; SWINTON, C.J., and BELL, J., concur. April 12, 2021

119,002 –  Joann Hall, as personal Representative of the Estate of: William Ogletree, Deceased, Plaintiff/Appellant, v. AMS. Inc., Wade Starr, Randy Meyer, Rod Meyer and Davie Attalla, Defendants/Appellees. Appeal from the District Court of Oklahoma County, Oklahoma.  Honorable Aletia Haynes Timmons, Trial Judge. Plaintiff/Appellant Joann Hall, as personal representative of the Estate of William Ogletree, deceased (Plaintiff), appeals from an order granting summary judgment in favor of Defendants/Appellees AMS, Inc., Wade Starr, Randy Meyer, Rod Meyer and Dave Attalla (Defendants). Plaintiff argues that there were disputes of material fact which should have precluded judgment on her claims of wrongful death, negligence and premises liability. Upon review of the record and applicable law, the decision of the trial court is affirmed in part, reversed in part and remanded for further proceedings.  Opinion by SWINTON, C.J.; BELL, J., concurs and PEMBERTON, P.J., concurs in part and dissents in part. April 12. 2021

Division IV

118,929 – In the Matter of the Estate of Katherine A. Wanzer, Deceased, Jose Wanzer, Petitioner/Appellant, vs. Kathy Taylor, Respondent/Appellee.  Appeal from an Order of the District Court of Blaine County, Hon. Allison M. Lafferty, Trial Judge.  This is an appeal from an Order Confirming Sale of Real Property entered in the probate action of In the Matter of the Estate of Katherine A. Wanzer, Deceased (Wanzer).  The Last Will of Katherine A. Wanzer directed the Personal Representative, Kathy Taylor, to “allow” her family members to purchase her home and a lot.  The words “family members” are construed to mean her named children.  Taylor informed the children about the provision and none elected to purchase.  In that case the Last Will directed the Personal Representative to proceed to public or private sale.  Taylor did so by arranging an auction.  Then, Jose Wanzer made an offer of $11,000.00 for the property which was not accepted.  Jose objected to the sale at auction.  The trial court denied the Objection and confirmed the sale at auction for the sum of $14,000.00.  Jose has failed to provide an acceptable appellate record demonstrating that the trial court abused its discretion by confirming the sale.  Insofar as the Record shows, the sale was legally made and fairly conducted, at a price not disproportionate to the value of the property sold and a greater sum could not be obtained.  Thus, the trial court did not abuse its discretion in confirming the sale.  The Order Confirming Sale of Real Estate, which also denies the Objection to Sell (sic) of Estate Real Estate is affirmed.  AFFIRMED.  Opinion from Court of Civil Appeals, Division IV, by RAPP, J.; FISCHER, V.C.J., and HIXON, P.J., concur. April 8, 2021

118,833 – In the Matter of the Estate of Roy M. Johnson, Deceased, Edward J. Cassity, Martin M. Cassity, Jr., and George Cassity, Petitioners/Appellants, vs. Ardmore Institute of Health, f/k/a Ardmore Sanitarium and Hospital, Thomas F. Dunlap, as Personal Representative of the Estate of Roy M. Johnson, Respondents/Appellees.  Appeal from an Order of the District Court of Carter County, Hon. Dennis Morris, Trial Judge.  Trial court petitioners appeal the trial court’s Findings of Fact, Conclusions of Law and Order sustaining the Motion to Dismiss of Respondents in this action to vacate a 1962 Order Authorizing and Directing Executors to Execute Conveyance and the resulting conveyances of certain properties.  The question presented on appeal is whether the trial court erred in finding Cassity v. Pitts, 1992 OK 139, 839 P.2d 192, is “res judicata and controlling in this matter,” and thereby determining the Settlement Agreement barred Petitioners from pursuing the present action.  This Court finds the trial court did not err in sustaining Respondents’ Motion to Dismiss.  The trial court’s Findings of Fact, Conclusions of Law and Order 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. April 9, 2021

118,522 — In re the Marriage of:  Audrey Parker Dressler, Petitioner/Appellant, vs. Richard Dressler, III, Respondent/Appellee.  Appeal from an Order of the District Court of Tulsa County, Honorable Tammy Bruce, Trial Judge, appointing Richard Dressler, III (“Father”) as the primary physical custodian of the parties’ minor child so that Audrey Parker Dressler (“Mother”) could not invoke 43 O.S.2011, § 112.3, the statutory procedure by which the parent entitled to custody of a child may seek to relocate with the child.  Father objected to Mother’s relocation, arguing that because Mother was not specifically designated as the primary physical custodian of the child in the decree and joint custody plan, she was not entitled to relocate the child pursuant to Boatman v. Boatman, 2017 OK 27, 404 P.3d 822.  The trial court found that pursuant to Boatman, it must first appoint a primary physical custodian before proceeding with the relocation issue.  We conclude the trial court abused its discretion by appointing Father as the child’s primary physical custodian without first considering whether Mother was the primary physical custodian at the time she attempted to invoke the statutory relocation procedure.  Thus, upon remand, the trial court shall determine which parent was the primary physical custodian of the child at the time Mother attempted to invoke the statutory relocation procedure.  If the trial court finds there was no primary physical custodian, then one should be appointed.  If the trial court determines that Mother was the child’s primary physical custodian, the court should employ the two-step process outlined in Boatman to determine whether the relocation with the child is proper.  Accordingly, we reverse the trial court’s order and remand the case for further proceedings consistent with our Opinion.  REVERSED 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. April 13, 2021

119,284 – Melanie Fultz, Plaintiff/Appellant, vs. Pamela Collins, Defendant/Appellee.  Appeal from an Order of the District Court of Pittsburg County, Hon. Tim Mills, Trial Judge.  The plaintiff, Melanie Fultz (Fultz), appeals a judgment dismissing her action against the defendant, Pamela Collins (Collins).  This appeal proceeds under Okla.Sup.Ct.R. 1.36, 12 O.S. Supp. 2020, Ch. 15, app. 1.  This is an appeal from a judgment dismissing the action on the ground that the petition fails to state a claim.  “A pleading must not be dismissed for failure to state a legally cognizable claim unless the allegations indicate beyond any doubt that the litigant can prove no set of facts which would entitle him to relief.”  Indiana Nat’l Bank v. Dep’t of Human Servs., 1994 OK 98, ¶ 3, 880 P.2d 371, 375 (citations omitted).  The Oklahoma statutes provide a trust beneficiary a remedy of constructive trust and equitable lien and tracing when a trustee breaches the duties as trustee.  The constructive trust may be pursued against third parties to prevent unjust enrichment.  However, Fultz’ petition lacks the specificity to constitute notice pleading.  The statute and case law require that the trial court permit amendment when the petition only defectively states a claim.  Therefore, the dismissal of the petition is reversed, and the cause is remanded with Instruction to permit Fultz to amend the petition regarding her claim against Collins.  This Court expresses no opinion regarding Collins’ claim that the action is barred by the Statute of Limitations.  REVERSED AND REMANDED WITH INSTRUCTION.  Opinion from Court of Civil Appeals, Division IV, by RAPP, J.; FISCHER, V.C.J., and HIXON, P.J., concur. April 13, 2021

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