Dispositions Other than by Published Opinions | Dec 15

December 14, 2021

Oklahoma Court of Civil Appeals

Division I

119,178    –  Staci Welch, Petitioner/Appellee, v. Carol Shelley, Executive Director of the Oklahoma Merit Protection Commission, Tom Bates, Commissioner of the Oklahoma State Department of Health, Respondent/Appellant.  Appeal from the District Court of Hughes County, Oklahoma.  Honorable Timothy L. Olsen, Trial Judge. Staci Welch, Petitioner/Appellee, was terminated from her employment by the Oklahoma State Department of Health, Respondent/Appellant, after she brought a gun to work.  She was licensed to carry the weapon but mistakenly forgot to remove it from her purse.  Welch won reinstatement and the district court determined she is entitled to an attorney fee.  The record includes evidence Welch felt bullied and persecuted in a hostile work environment where her supervisors did not consider her complaints.  Co-workers described her personality as explosive and volatile.  This evidence constituted aggravating conditions which  accentuated the misconduct of bringing a firearm into a public office building.  The Oklahoma Merit Protection  Commission denied attorney fees because it decided the Health Department’s decision to immediately terminate appellee, instead of applying a lower level of discipline, was not wholly unfounded or clearly without merit.  We hold that determination was not arbitrary or clearly erroneous.  The district court’s judgment reversing the Commission and remanding for a hearing on an appropriate attorney fee is REVERSED. Opinion by GOREE, P.J.; MITCHELL, J., and PRINCE, J., concur. Dec. 9, 2021

119,249  – Malia Deanne Guerrero (now Eyler), Plaintiff/Appellee, v. Eric Sebastain Guerrero, Defendant/Appellant.  Appeal from the District Court of Tulsa County, Oklahoma.  Honorable Owen T. Evans, Trial Judge.  Appellant seeks reversal of the trial court’s November 12, 2020 Order (the “Order”) awarding Appellee an attorney fee award in the amount of $95,000.00 for post-divorce legal services.  Appellant contends that the Order must be reversed because the Order penalized, punished, and maligned him for conduct related to a previous appeal and because the trial court erred in balancing the equities.  Because we find that the trial court’s attorney fee award had a rational basis in the evidence and was based upon an adequate balancing of the equities as required by law, the Order is AFFIRMED as entered. Opinion by PRINCE, J., GOREE, P.J., and MITCHELL, J., concur. Dec. 9, 2021

119,821 – Erica Hodges, Plaintiff/Appellant, v. KSL Dirtworks, LLC, Defendant/Appellee, Porfirio Puentes Herrera, and Lucila Puentes, Defendants.  Appeal from the District Court of Tulsa County, Oklahoma.  Honorable Caroline Wall, Trial Judge.  The question presented for review is whether summary judgment was appropriately entered on the issue of whether Defendant, Porfirio Puentes Herrera (“Puentes”), was acting within the scope of employment at the time of the accident.  As outlined below, we find that genuine issues of material fact exist as to whether a service was being rendered to Puentes’ employer, either express or implied, with the employer’s consent when Puentes was traveling home with certain equipment at the end of the day.  The trial court concluded that, at the time of the accident, Puentes was not acting within the scope of his employment.  As a result, the trial court granted summary judgment in favor of the employer, Defendant/Appellee, KSL Dirtworks, LLC (“KSL”), holding that, as a matter of law, KSL could not be held liable for Puentes’ negligence.  After reviewing the pleadings and evidentiary materials in the record, we find that there are disputed issues of material fact that must be resolved by a jury.  A jury must resolve whether Puentes’ trip home involved a benefit to KSL and whether KSL had consented to Puentes’ actions.  Consequently, there exists a genuine issue as to whether or not Puentes was acting within the scope of his employment at the time of the accident, thereby precluding summary judgment in favor of KSL.  The matter is REVERSED and remanded for further proceedings consistent with this Opinion.  Opinion by PRINCE, J.; GOREE, P.J., and MITCHELL, J., concur. Dec.. 9, 2021

Division II

119,738 – Rose Bowles, as Personal Representative of the Estate of James R. Bowles, Deceased, Plaintiff/Appellant, v. Oklahoma Heart Hospital South, LLC, an Oklahoma Limited Liability Company; Oklahoma Heart Hospital, LLC, an Oklahoma Limited Liability Company; Lindsay Harris, R.N.; and Chris Zielke, R.N., Defendants/Appellees.  Appeal from the District Court of Oklahoma County, Hon. Don Andrews, Trial Judge.  In this medical malpractice action, Plaintiff appeals from the trial court’s order granting summary judgment to Defendants.  Plaintiff argues the trial court erred as a matter of law because it granted summary judgment to Defendants on a basis different from that raised by them in their motion.  She asserts the trial court granted judgment on an argument Defendants raised for the first time in reply to her response in opposition to summary judgment and to which she was not given an opportunity to respond.  From our review of the summary judgment record and the applicable law, we conclude the trial court did not err in granting summary judgment to Defendants and Plaintiff failed to meet her obligation under Rule 13(b), Rules for the District Courts of Oklahoma, 12 O.S. Supp. 2013, ch. 2, app.  Accordingly, we affirm.  AFFIRMED.  Opinion from Court of Civil Appeals, Division II, by BARNES, J.; WISEMAN, P.J., concurs, and BLACKWELL, J., dissents. Dec. 14, 2021

Division III

118,998  –   Curtis Mark Myers, Plaintiff, vs. Larry Steve Myers, as Co-Trustee of the Patterson Revocable Living Trust, Defendant, and Guy W. Jackson, as Trustee Executor of the Patterson Revocable Living Trust, Defendant/Appellant, Danny Bob Myers, an individual, and Walter Kent Myers, an individual, Plaintiffs/Appellees, vs. Larry Steve Myers, individually, and as Co-Trustee of the Patterson Revocable Living Trust dated August 29th, 2007, Defendant, and Guy W. Jackson, individually and as Trustee of the Patterson Revocable Living Trust dated August 29, 2007, Defendant/Appellant, and Richard Franklin Myers, Defendant. Appeal from the District Court of Oklahoma County, Oklahoma.  Honorable Richard Ogden, Trial Judge. Defendant/Appellant, Guy W. Jackson, individually and as Trustee Executor of the Patterson Revocable Living Trust (Trust), appeals from the trial court judgment awarding attorney fees and expenses to Plaintiffs/Appellees, Danny Bob Myers and Walter Kent Myers (Trust Beneficiaries) and, taxing such fees and expenses against Jackson, individually.  In the companion case, Appellate Case No. 118,156 (mandated May 19, 2021), Trust Beneficiaries prevailed in their action against Jackson for breach of fiduciary duty.  The court held Jackson wrongfully appointed himself as trustee of the Trust, failed to resign as trustee, and failed to provide an accounting to the Trust Beneficiaries.  The court found Jackson wasted trust assets by paying himself trustee fees of $27,000.00; paying $29,390.24 in attorney fees to his attorney, Ken Felker, Esq; and paying $17,575.00 in attorney fees to J. John Hager, Jr., Esq., the attorney who represented Steve Myers, the Trust’s former trustee.  The trial court held these payments were not made in good faith and the court ordered Jackson to disgorge these fees and pay damages to the Trust in the total amount of $73,965.24.  In Case No. 118,156, Jackson appealed from the portion of the trial court’s judgment ordering Jackson to disgorge $17,575.00 in attorney fees paid to Mr. Hager.  This Court affirmed the trial court’s judgment.  Jackson’s petition for writ of certiorari was denied and the companion case was mandated.  Meanwhile, Trust Beneficiaries moved for an award of attorney fees and costs against Jackson pursuant to 60 O.S. 2011 §175.57(D).  The trial court found Trust Beneficiaries were entitled to such fees under §175.57(D).  At a subsequent evidentiary hearing, the trial court held Jackson should be taxed the reasonable amount of $208,003.53 for such fees and expenses, and the court awarded Trust Beneficiaries this amount.  Jackson now appeals from this judgment. This Court affirms the trial court’s determination that trust beneficiaries are entitled to the award, and we affirm the amount of the award of attorney fees and costs. Opinion by BELL, P.J.; GOREE, J. (sitting by designation), and MITCHELL, J. (sitting by designation),  concur. Dec. 14, 2021

119,129 – Falconhead Condominium Association, Inc., Plaintiff/Appellant, vs. Michelle Shelton, Defendant/Appellee. Appeal from the District Court of Love County, Oklahoma.  Honorable Wallace Coppedge, Trial Judge. Following a bench trial, Plaintiff/Appellant, Falconhead Condominium Association, Inc., seeks review of an order denying Falconhead monetary relief and attorney fees related to its claims that Michelle Shelton, an owner of a condominium unit in Falconhead, breached certain declarations and by-laws by making unapproved modifications to the interior and exterior of her unit.  Our previously promulgated opinion, handed down on September 24, 2001, is hereby withdrawn and replaced by this opinion.  This appeal is submitted on Falconhead’s brief only.  Upon review of the instant record, we hold Plaintiff’s brief in chief is reasonably supportive of the allegations of error raised therein.  REVERSED AND REMANDED. Opinion by BELL, P.J.; SWINTON, C.J., and GOREE, J. (sitting by designation), concur. Dec. 14, 2021

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