Courts and More Vol. 1 | No. 33 | August 18, 2021

Oklahoma Court of Civil Appeals

Division I

119,135  –  Jeremy T. Stumbo, Plaintiff/Appellant, v. Katherine T. Froman, Defendant/Appellee.  Appeal from the District Court of Tulsa County, Oklahoma.  Honorable William Musseman, Trial Judge. This is the second appeal involving the same parties.  The issue in the first appeal was whether Plaintiff/Appellant, Jeremy T. Stumbo (“Stumbo”), could claim an ownership interest in the parties’ marital home.  Stumbo and the Defendant/Appellee, Katherine T. Froman (“Froman”), were divorced by Decree of Dissolution of Marriage in Tulsa County, Oklahoma.  Froman was awarded the marital home, but she was required to refinance the home into her own name within two years after the entry of the parties’ Decree of Dissolution of Marriage.   In Jeremy T. Stumbo v. Katherine T. Froman, Number 118,567 (OK CIV APP 5/28/21)(unpublished)(“Companion Case”), this Court on the issue concerning the parties’ marital home, affirmed in part, reversed in part, and remanded the matter to the trial court.  The issue presented in this second appeal is whether an award of attorney fees and costs to Froman in the amount of $13,125.88 was appropriate.  As a result of this Court’s Opinion in the Companion Case, we reverse and remand. Opinion by PRINCE, J.; GOREE, P.J., and MITCHELL, J., concur. August 12, 2021

119,138  –  Richard C. Blevens and Evelyn Blevens, Trustees of the Richard C. Blevens Trust; and Richard C. Blevens and Evelyn Blevens, Trustees of the Evelyn Blevens Trust, Plaintiffs/Appellants, v. Ralph E. Keith II and Janel Keith, Defendants/Third-Party Plaintiffs/Appellees v Richard C. Blevens and Evelyn Blevens, Third-Party Defendants. Appeal from the District Court of McClain County, Oklahoma.  Honorable Charles Gray, Trial Judge.  This appeal stems from an application for attorney fees and costs that Appellants Ricard C. and Evelyn Blevens submitted during protracted litigation involving a contested real estate transaction.  The trial court’s July 21, 2020 Journal Entry of Judgment denying Appellants’ Motion to Reconsider is the specific subject of this appeal.  Appellees Ralph E. and Janel Keith II counter-appealed the trial court’s Ruling on Monies Tendered and Attorney Fee Applications, alleging that the trial court erred when it ordered the McClain County Court Clerk to disburse to Appellants monies held in the court fund.  Upon review, we find that the trial court’s resolution of the attorney fee issue constituted, in part, legal error.  We affirm the trial court’s order that disbursed the funds that had been deposited with the Court Clerk.  Accordingly, we AFFIRM IN PART, REVERSE IN PART, AND REMAND this action for proceedings consistent with this Opinion.  Opinion by PRINCE, J.; GOREE, P.J., and MITCHELL, J., concur. August 12, 2021

119,466  –  In the Matter of the Adoption of L.P.M. and D.W.M. Minor Children, Warren Frank Moselely, Appellant, v. Paige Ellen Oberhammer and Steven Wade Frazier, Appellees.  Appeal from the District Court of Rogers County, Oklahoma.  Honorable Terrell S. Crosson, Trial Judge.  Appellees, Paige Ellen Oberhammer, now Frazier, and Steven Wade Frazier (“Appellees” or “Paige” and/or “Steven”) sought to adopt L.P.M. and D.W.M. without the consent of Appellant, Warren Frank Moseley (“Appellant” or “Warren”).  Appellees claimed that, for a period of twelve consecutive months out of the fourteen months immediately preceding the filing of the Petition for Adoption, Appellant failed to support the children in accordance with his financial ability and Appellant failed to establish and/or maintain a substantial and positive relationship with the minor children.  Warren claimed that he was not required to pay child support during the relevant time period and that he attempted to establish a relationship with the children but Appellees thwarted his attempts to have contact with the children.  After he was denied contact, Warren claimed he took sufficient legal action to establish a relationship with the children.  The trial court concluded that the adoption could proceed without Warren’s consent based on its finding that he failed to establish and/or maintain a substantial and positive relationship with the children during the relevant time period.  We reverse. OPINION BY PRINCE, J.; GOREE, P.J., and MITCHELL, J., concur. August 12, 2021

Division II

118,975 — In re the Marriage of:  Raymond Felton, Petitioner/Appellee/Counter-Appellant, vs. Tabitha Felton, Respondent/Appellant/Counter-Appellee.  Appeal from an order of the District Court of Oklahoma County, Hon. Sheila D. Stinson, Trial Judge.  Tabitha Felton appeals a decree of dissolution of marriage objecting to the trial court’s decisions regarding the division of property.  Raymond Felton filed a counter-petition to challenge the trial court’s decision regarding funds paid to Tabitha pursuant to a temporary order issued in Texas.  After review, we cannot conclude the trial court abused its discretion in awarding Raymond all of the funds in the bank accounts as his separate property or in finding Raymond did not dissipate marital assets.  We also cannot conclude the trial court erred in declining to divide a 2018 tax refund.  As to Raymond’s counter-appeal, we see no trial court error in refusing to order Tabitha to reimburse him for the temporary support he paid in the Texas divorce proceeding.  We find no abuse of discretion or error of law, and affirm the trial court’s decision.  AFFIRMED.  Opinion from the Court of Civil Appeals, Division II, by WISEMAN, P.J.; BARNES, J., and HIXON, J. (sitting by designation), concur.  August 12, 2021

119,505 — Mark T. Fuller and Kristina N. Anderson, as parents and next friend of S. F., a minor child, and Mark T. Fuller and Kristina N. Anderson, as surviving parents and next of kin of Availa Fuller, a deceased minor child, Plaintiffs/ Appellants, vs. Good Neighbor Realty a/k/a Wagoner Good Neighbor Realty, Inc., Debi L. Hamilton, and Debi L. Roehm Trust, Defendants/Appellees.  Appeal from an order of the District Court of Wagoner County, Hon. Maxey Reilly, Trial Judge, granting Defendants’ motion for summary judgment and motion to tax costs.  Plaintiffs rented a mobile home managed or owned by Defendants.  A fire broke out in the mobile home while Plaintiffs and their two children were sleeping.  Plaintiffs’ younger child died and the older child sustained injuries.  Plaintiffs then brought the present action against Defendants for negligence per se and common law negligence.  Plaintiffs argue Defendants are negligent per se for violating 74 O.S. § 324.11a, the statute governing requirements for installing smoke detectors and penalties for violations.  Plaintiffs further allege Defendants negligently failed to exercise reasonable care in properly maintaining the mobile home including the installation of smoke detectors causing injuries to one child and the wrongful death of another.  After a hearing, the trial court granted Defendants’ motion for summary judgment on Plaintiffs’ common law negligence and negligence per se claims, and Defendants were subsequently granted certain costs pursuant to 12 O.S. §§ 929 and 942.  Pursuant to the express provisions of Part A of 74 O.S. § 324.11a, Defendants did not owe Plaintiffs a statutory duty to install a smoke detector.  As to Plaintiffs’ common law negligence claim, it is undisputed that Plaintiffs did not report the absence of a smoke detector to Defendants.  Because Defendants were not notified about the lack of a smoke detector, their duty was not triggered to install one.  The evidence does not support any inference that Defendants knew or should have known about the absence of a smoke detector, particularly when no statutory duty exists in this instance to install one.  Under the facts presented, Defendants owed no duty to Plaintiffs, arising from their general common law duty of care, to install a smoke detector.  We conclude the trial court did not err in granting summary judgment in favor of Defendants or in granting Defendants’ motion to tax costs, and these decisions are affirmed.  AFFIRMED.  Opinion from the Court of Civil Appeals, Division II, by WISEMAN, P.J.; BARNES, J., and FISCHER, V.C.J. (sitting by designation), concur.  August 13, 2021

Division III

118,862  –  Francis Oliver, M.D., and Southern Oklahoma Cardiology Specialists, Plaintiffs/Appellees, vs. MHM Support Services, a foreign not for profit Corporation; Mercy Hospital Ardmore, Inc., an Oklahoma Corporation; and Ann Rucker, Defendants/ Appellants. Appeal from the District Court of Carter County, Oklahoma.  Honorable Dennis Morris, Trial Judge. This appeal stems from the trial court’s denial of Defendants’, MHM Support Services and Mercy Hospital Ardmore, Inc., request for dismissal under the Oklahoma Citizen’s Protection Act (OCPA). On remand from a prior appeal in which it was determined the OCPA applies to plaintiff’s claims, the district court analyzed and denied a subsequent motion to dismiss filed pursuant to the OCPA. Under the applicable standard of review and burden shifting framework set out in  Krimbill v. Talarico, 2018 OK CIV APP 37, 417 P.3d 1240, and after consideration of the appellants’ Petition for Rehearing, we AFFIRM IN PART, REVERSE IN PART, and REMAND for further proceedings. Opinion by PEMBERTON, P.J.; BELL, J., concurs and SWINTON, C.J., dissents. August 12, 2021

Division IV

118,832 – J.W., Plaintiff/Appellant, vs. Independent School District No. 10 of Dewey County, Oklahoma, Defendant/Appellee.  Appeal from Order of the District Court of Dewey County, Hon. Justin Eilers, Trial Judge.  Plaintiff, J.W., appeals a Journal Entry of Judgment granting defendant Independent School District No. 10, of Dewey County, Oklahoma’s, motion for summary judgment.  J.W. alleged that she was the victim of bullying at school and that District employees were negligent in developing and implementing a statutorily required anti-bullying policy to protect her from that bullying.  The district court found that the Oklahoma Governmental Tort Claims Act, specifically 51 O.S. Supp. 2013 §§ 155(4) and 155(5), granted the District immunity from J.W.’s claims.  The district court was correct in all but one respect.  The Tort Claims Act does not immunize the District from a claim that a District employee was negligent in implementing the District’s anti-bullying policy on an operational level.  With respect to that aspect of J.W.’s claim, the fact issues have not been resolved and, therefore, it cannot be determined whether the District is entitled to a judgment on all issues.  The judgment in favor of the District in this respect is vacated.  On remand, the district court shall resolve J.W.’s negligent operational level claim in accordance with this Opinion.  AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS.  Opinion from Court of Civil Appeals, Division IV by FISCHER, V.C.J.; HIXON, P.J., concurs, and RAPP, J., concurs in part, specially concurs in part, and dissents in part.  August 12, 2021

119,123 — In the Matter of the Marriage of:  Susan Kierl, Petitioner/Appellee, vs. T. Philip Kierl, Jr., Respondent/Appellant.  Appeal from an Order of the District Court of Oklahoma County, Hon. Richard Ogden, Trial Judge.  T. Philip Kierl, Jr. (Husband) appeals the trial court’s Order of Correction on Remand, correcting the previously entered Decree of Dissolution of Marriage to reflect its intention to apply a uniform valuation date to all marital assets and amending the property division judgment amount owed to Susan Kierl (Wife) accordingly.  This appeal concerns the trial court’s decision on remand about the date used to value certain marital oil and gas entities in the parties’ decree.  The parties disputed whether such assets should be valued as of April 30, 2015, which was near the time of separation, or as of August 31, 2016, which was closer to the time of trial.  Both the decree and the trial court’s written findings state the April 2015 date was the fair and equitable date to use to value the entire marital estate.  However, the trial court’s written findings indicate it used the August 2016 date to value a non-operating oil and gas entity called “TPK Jr & Susan Kierl Oil & Gas LLC” (“TPKOG”).  Both parties noted such discrepancy in the appeal from the decree filed in Case No. 116,133 (Kierl I).  In Kierl I, the Court remanded for the trial court to “consider its valuation date determination, as the decree erroneously states the trial court used only a single valuation date[], when a later date was used for one marital asset.”  In view of these remand instructions, the trial court did not err on remand by entering an order explaining its intent to use the uniform April 2015 date and to adopt the values proposed by Wife’s expert, noting its mistaken use of the later date to value TPKOG, and amending the property division judgment amount in the decree accordingly.  We also find the trial court did not err by declining to grant an evidentiary hearing.  Thus, we affirm the trial court’s order.  AFFIRMED.  Opinion from Court of Civil Appeals, Division IV, by HIXON, P.J.; FISCHER, V.C.J., and RAPP, J., concur. August 17, 2021

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