Dispositions Other than by Published Opinions | April 28 | Courts and More

April 27, 2021

Courts and More Vol. 1 | No. 17 | April 28, 2021

Oklahoma Court of Civil Appeals

Division I

118,223 – Alan Philip Niemann and Gwen Sue Niemann, individually and as Trustees of the Kingsbury Trust Dated November 27, 2007, Plaintiffs/Appellees, v. Doug Hartman, husband and wife, Defendants/Appellants. Appeal from the District Court of Oklahoma County, Oklahoma.  Honorable Cindy H. Truong, Trial Judge.  Defendants/Appellants, Doug Hartman and Marilee F. Hartman (the “Hartmans”), appeal from the trial court’s order granting the Motion to Enforce Settlement Agreement in favor of Plaintiffs/Appellees, Alan Phillip Niemann and Gwen Sue Niemann (the “Niemanns”). The Hartmans allege the trial court erred by settling the matter contrary to the terms and conditions of the settlement agreement. Based on review of the record and applicable law, we affirm the order. Opinion by GOREE, C.J.; MITCHELL, J., and PRINCE, J.,  concur. April 22, 2021

118,624  – Ali Torabi and Sanaz Torabi, Plaintiff/Appellants, v. Ford Homes, Inc., LLC, and Joshua Ford, and Joanna Ford, Defendants/Appellees, Whitacre Glass Works, Aspen Plumbing, L.L.C, D&J Custom Remodeling, Billy Amons Concrete, Dowd Heat & Air, Xpert Plumbing, Triple T. Roofing, LLC, and Dusty Day, an Individual, Third-Party Defendants.  Appeal from the District Court of Tulsa County, Oklahoma.  Honorable Caroline Wall, Trial Judge.  This appeal arises out of an action by Ali and Sanaz Torabi (“Appellants”) against Ford Homes, Inc., LLC (“Appellee”) and Joshua and Joanna Ford (the “Fords”), as individuals, for breach of a new home construction contract, negligence, misrepresentation and fraud, and violations of the Oklahoma Consumer Protection Act (“Consumer Protection Act”).  After a multiday trial, the jury returned a verdict, and the trial court entered judgment, in favor of Appellee on all issues.  Appellants timely filed a Motion for New Trial, which was denied.  In this appeal, Appellants restate their earlier propositions of error, which include: a facial challenge to the sufficiency of the evidence; attacks on the trial court’s admission of evidence; and allegations of “discriminatory litigation misconduct and judicial bias.”  After review of Appellants’ allegations of error under the appropriate standards, we affirm.  Opinion by PRINCE, J.; GOREE, J., and MITCHELL, J., concur. April 22, 2021

118,947 – Jerry Neal Harwood, Plaintiff/Appellant, v. Ardagh Group, Ardagh Glass Inc., Defendant/Appellee, and Patrick Thom McLaughlan, Defendant.  Appeal from the District Court of Creek County, Oklahoma.  Honorable Doughlas W. Golden, Trial Judge.  The question presented for our review is whether the Defendant/Appellee, Ardagh Group and Ardagh Glass Inc. (“Ardagh)” owed a duty of care to the Plaintiff/Appellant, Jerry Neal Harwood (“Harwood”), to make a public street as safe as possible while Harwood walked from his place of employment to an employer-provided parking lot.  Harwood appeals an order from the trial court dismissing his negligence claim against his former employer.  Ardagh.  One night after work, while Harwood was walking across a public street to his vehicle that was parked in an employer-provided parking lot, he was hit be a motor vehicle and serverly injured.  We find that Harwood did not state a claim upon which relief could be granted and therefore, AFFIRM the dismissal of Harwood’s Amended Petition.  Opinion by PRINCE, J.; GOREE, J., and MITCHELL, J., concur. April 22, 2021

119,147 – Christopher Barnett, Plaintiff/Appellee, v. Hall Estill, Hardwick, Gable, Golden, & Nelson, P.C., an Oklahoma Professional Corporation, J. Kevin Hayes, Special Administrator of the Estate of Patrick Cremin; Johnathan L. Rogers, individually; and University of Tulsa, a private university, Defendants/Appellants. Appeal from the District Court of Tulsa County, Oklahoma.  Honorable William D. LaFortune, Trial Judge.  This appeal stems from the denial of a Motion to Dismiss by the Appellants in which they asserted application of the Oklahoma Citizens Participation Act.  See 12 O.S. §1430, et seq. (“OCPA”).  Appellants’ Motion to Dismiss was deemed denied by operation of law, pursuant to 12 O.S. §1437, because the trial court failed to rule on the motion within thirty days following the date of the hearing on the motion.  Appellee claimed that the Appellants contacted the Oklahoma Attorney General’s Office and made a false threat report to the effect that Appellee “had made imminent threats.”  Based on a review of the entire record, we find that under the applicable OCPA standards and protocols the Motion to Dismiss should have been sustained and, therefore, reverse the deemed denial of the Appellants’ Motion to Dismiss.     Opinion by PRINCE, J; GOREE, P.J., and MITCHELL, J., concur. April 22, 2021

119,192 – Derrick Swiftbird, Plaintiff/Appellee, v. State of Oklahoma, ex rel., Department of Public Safety, Defendant/Appellant.  Appeal from the District Court of Canadian County, Oklahoma.  Honorable Douglas Kirkley, Trial Judge. The State of Oklahoma, ex rel. Department of Public Safety, Defendant/Appellant, appealed the district court’s order interpreting 47 O.S. §751(B) of Oklahoma’s implied consent law.  The district court determined the refusal of a chemical test by Derrick Swiftbird, Plaintiff/Appellee, was invalid because, under the circumstances, the statute required a breath test and not a blood test.  We reverse in accord with Wolfe v. State ex rel. Department of Public Safety, 2005 OK CIV APP ¶21, 122 P.3d 879, 883, “the consequence of revocation follows solely from the refusal, not the test.”  REVERSED.  Opinion by GOREE, P.J.; MITCHELL, J., and PRINCE, J., concur. April 22, 2021

Division II

Division III

118,138 – Reverse Mortgage Solutions, Inc., a Foreign Corporation, Plaintiff/Appellee, v. Estate of Kenneth A. Sperling, Deceased, and Karen Sue Sperling, Defendant/Appellant, and Residential Mortgage Services, Inc.; Citifinancial Mortgage Company, Inc.; Paul Davis Systems of Tulsa, Inc., d/b/a Paul Davis Restoration; John Doe, as Occupant of the Premises; and Jane Doe, as Occupant of the Premises, Defendants, Estate of Kenneth A. Sperling, Deceased, and Karen Sue Sperling, Third Party Plaintiffs, vs. Reverse Mortgage Solutions, Inc., a Foreign Corporation; World Alliance Financial Corporation, a/k/a Senior Lending Network, a/k/a Lender Lead Solutions, a/k/a   Vertical Lend, a Foreign Corporation; Roy True d/b/a Roy True Homes; National Field Network, a Foreign Corporation; Buffalo Land Abstract Company, Inc., an Oklahoma Corporation; National Field Network, a/k/a National Field Network Now, LLC, a/k/a National Field Management & Preservation Services, LLC,  a Foreign Corporation; Rich Erickson, an Individual; Jeremy Snyder, an Individual; Dorothy Swearingen, a/k/a Dottie Swearingen, a/k/a Dottie Swearinger, an Individual; John Does I-V; and John Does I-X, Third Party Defendants.  Appeal from the District Court of Creek County, Oklahoma.  Honorable Lawrence W. Parish, Trial Judge. Defendant/Appellant Karen Sue Sperling (Appellant) appeals from the trial court’s order confirming the sheriff’s sale following foreclosure on the reverse mortgage held by Plaintiff/Appellee Reverse Mortgage Solutions, Inc. (“RMS”).  We find no abuse of discretion and AFFIRM. Opinion by SWINTON, C.J.; PEMBERTON, P.J., and BELL, J., concur. April 21, 2021

118,729 – Dr. Peter A. Boateng, Plaintiff/Appellant, v. State of Oklahoma, ex rel., The Board of Regents for the Oklahoma Agricutlral and Mechanical Colleges, a Constitutional State Agency, Defendant/Appellee, Dr. Kent Smith, Jr., Defendant/Appellee, Dr. Clyde Montgomery, Jr., Defendant/Appellee, Dr. Solomon S. Smith, Defendant/Appellee, Dr. Roger Merkel, Defendant/Appellee. Appeal from the District Court of Payne County, Oklahoma.  Honorable Stephen R. Kistler, Judge. Dr. Peter Boateng (“Appellant”), a former professor at Langston University, was denied tenure and his teaching contract was not renewed due to substantiated plagiarism.  Appellant then filed suit against the Board of Regents for the Oklahoma Agricultural and Mechanical Colleges (“Board of Regents”) and Dr. Kent Smith, Jr., Dr. Clyde Montgomery, Jr., Dr. Solomon Smith, Dr. Roger Merkel (“Individual Defendants”), employees of Langston University (collectively “Appellees”), for the alleged denial of a supposed guaranteed additional year of employment given to professors denied tenure. Prior to trial, the district court granted summary judgment in favor of the Individual Defendants, finding Appellant’s defamation claims against the Individual Defendants were not supported by evidence. After a jury trial later held to address the claims against the Board of Regents, the jury rendered a verdict in favor of the Board of Regents. Dr. Boateng appealed, asserting: 1) There was no competent evidence to support the jury’s verdict finding the Board of Regents did not breach its contract with Appellant; 2) The trial court erroneously allowed the Board of Regents to cross-examine Appellant with extrinsic character evidence in violation of 12 O.S. § 2608(B); 3) The trial court erred by submitting erroneous jury instructions to the jurors; and 4) The trial court’s order granting summary judgment on Appellant’s defamation claim against the individual defendants should be reversed. We AFFIRM the jury verdict and the grant of summary judgment. Opinion by PEMBERTON, P.J.; SWINTON, C.J., and BELL, J., concur. April 21, 2021

118,763 – In Re the Marriage of: Carrie A. Byrd, Petitioner/Appellee, vs. Atwell B. Byrd, Respondent/Appellant. Appeal from the District Court of Comanche County, Oklahoma.  Honorable Gerald F. Neuwirth, Judge. Respondent/Appellant Atwell Byrd (Husband) appeals from the decree of dissolution entered following trial of Petitioner/Appellee Carrie Byrd’s (Wife) petition for dissolution of the parties’ marriage.  Husband challenges the trial court’s award of support alimony to Wife, as well as the trial court’s decision to impute  income of minimum wage to Wife for purposes of calculating child support. The trial court’s decisions on these issues were not clearly against weight of the evidence nor an abuse of discretion and we AFFIRM. Opinion by SWINTON, C.J.; PEMBERTON, P.J., and BELL, J., concur. April 21, 2021

119,221 – In the Matter of A.S. and S.H., Deprived Children: Christina Jackson and James Heck, Appellants, vs. State of Oklahoma, Appellee. Appeal from the District Court of Pittsburg County, Oklahoma.  Honorable Mindy Beare, Judge. This parental termination case stems primarily from unsafe conditions created by the parents’ tragic addiction to illicit substances. The questions presented on appeal are whether 1) the State of Oklahoma presented clear and convincing evidence to support termination of parental rights and 2) the Oklahoma Department of Human Services provided reasonable efforts to reunite Ms. Jackson and Mr. Heck with their child(ren). We answer both in the AFFIRMATIVE.  Opinion by PEMBERTON, P.J.; SWINTON, C.J., and BELL, J., concur. April 21, 2021

119,376 – Davina Langwell, Plaintiff/Appellant, v. Community Action Resource and Development, Inc. And Wes Barbee Construction, Defendants/Appellees.  Appeal from the District Court of Wagoner County, Oklahoma.  Honorable Dennis Shook, Trial Judge. This appeal concerns Appellant Davina Langwell’s (“Appellant”) failure to timely serve her lawsuit filed in January 2016. Almost a year and a half after the requisite time period expired, Appellant attempted to make a showing of good cause for an extension to serve her action on the defendants. The parties dispute whether the trial court possessed jurisdiction to make a determination on Appellant’s Application for Extension of Time to Serve Petition. The outcome turns on 12 O.S. § 2004(I) and 12 O.S. § 100, relevant interpretations of which have recently been provided by Oklahoma appellate courts. The Court of Civil Appeals has held the 2017 amendment of Section 2004(I)—requiring good cause to be shown within 180 days of the filing of suit—does not retroactively apply to lawsuits filed prior to the date the amendment went into effect. Regarding Section 100, the Oklahoma Supreme Court recently determined the one year refiling period provided by the savings statute commences either the day after the filing of an appealable order dismissing the case, or where the dismissal order is appealed, on the day after the appeal is mandated. Based on precedent, we find the trial court did, and does, have jurisdiction to make a determination on Appellant’s Application for Extension of Time to Serve Petition but does not have the ability to dismiss the case with prejudice based on an application of the savings statute. Therefore we AFFIRM IN PART, REVERSE IN PART, AND REMAND this action for proceedings consistent with this opinion. Opinion by PEMBERTON, P.J.; SWINTON, C.J., and BELL, J.,  concur. April 27, 2021

Division IV

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