Oklahoma Court of Civil Appeals

Division I

119,199   – Thomas Fulton, Plaintiff/Appellant, v. Riverside Autoplex of Muskogee, Inc., Defendant/Appellee.  Appeal from the District Court of Muskogee County, Oklahoma.  Honorable Norman D. Thygesen, Trial Judge.  Plaintiff/Appellant, Thomas Fulton, (“Fulton”) appeals an adverse jury verdict.  Fulton purchased a vehicle from the Defendant/Appellee, Riverside Autoplex of Muskogee, Inc. (“Riverside”), and allegedly signed blank contracts at the time of purchase.  He received the completed contracts in the mail and claimed that Riverside altered the purchase price and added items that he did not agree to purchase.  Fulton sued Riverside for fraud, misrepresentation, forgery and breach of contract.  He later obtained a default judgment that, upon timely motion by Riverside, was set aside by the trial court.  At the conclusion of the trial, the jury returned a verdict in favor of Riverside.  Fulton commenced this appeal and claims that it was error for the trial court to vacate the default judgment and, further, that the defense verdict was error because Riverside allegedly did not present evidence to refute Fulton’s claims.  After reviewing the record and applicable law, we find that there were no errors and AFFIRM the trial court. Opinion by PRINCE, J.; GOREE, P.J., and MITCHELL, J., concur. – Dec. 3, 2021

119,229  – Ulisa Chloie Marek, Petitioner/Appellee, v. Shawn Patrick Marek, Respondent/Appellee. Appeal from the District Court of Murray County, Oklahoma.  Honorable Aaron Duck, Trial Judge.  Shawn Marek (Appellant) appealed the trial court’s denial of his Motion to Vacate, Correct, Modify, Reconsider or Vacate Judgment in the Temporary Order and the trial court’s finding that he was in indirect contempt of court. Because Appellant failed to show the trial court abused its discretion in denying his motion and Appellant presented no legal error as to the trial court’s jurisdiction to find Appellant in indirect contempt of court, we affirm. Opinion by GOREE, P.J.; MITCHELL, J., and PRINCE, J., concur. – Dec. 3, 2021

119,408  –  Boevers Homes, L.L.C., an Oklahoma Limited Liability Company, and Mark & Phil, L.L.C., an Oklahoma Limited Liability Company, Plaintiffs/Appellees, v. Kyle and Natalie Wagner, husband and wife; Ronald Cardwell, an individual; Johathan Hisey, an individual, Defendants/Appellants, and Kyle and Natalie Wagner, husband and wife; Ronald Cardwell, an individual, Third Party Plaintiffs, v. Phil Boevers, individually; Dodson-Thompson-Mansfield, P.L.LC., and Oklahoma Professional Limited Company; and Jason E. Thompson, an individual, Third Part Defendants. Appeal from the District Court of Canadian County, Oklahoma.  Honorable Paul Hesse, Trial Judge.  Appellants, Kyle and Natalie Wagner, Ronald Cardwell, and Jonathan Hisey, seek review of the Canadian County District Court’s order of February 25, 2021, denying the motions to dismiss of Appellants. On December 22, 2020, the Wagners, Cardwell and Hisey filed three motions to dismiss, asserting 12 O.S. Supp.2004 §2012(B)(6) motions for failure to state a claim upon which relief can be granted and also asserting motions to dismiss pursuant to 12 O.S. Supp.2014 §1432, under the Oklahoma Citizens Participation Act (OCPA). The Appellees, Boevers Homes, L.L.C. and Mark & Phil, L.L.C., filed a combined objection to the motions to dismiss on January 8, 2021. The district court denied the motions to dismiss by order on February 25, 2021. For the reasons provided, we affirm the appealed from order of the district court.  Opinion by GOREE, P.J.; MITCHELL, J., and PRINCE, J., concur. – Dec. 3, 2021

119,619 – Ronnie Burton, Sr., Petitioner, v. Multiple Injury Trust Fund and The Workers’ Compensation Court of Existing Claims, Respondents. Petitioner Ronnie Burton, Sr. (Claimant) appeals from an order of a three-judge panel of the Workers’ Compensation Court of Existing Claims vacating the trial court’s order that found Claimant was permanently totally disabled (PTD) and ordered Respondent Multiple Injury Trust Fund (the Fund) to pay PTD compensation.  We agree with the panel: the trial court’s award is void because the statute in effect at the time of Claimant’s last injury required Claimant to seek compensation for an increase in disability from a combination of injuries resulting in PTD from his most-recent employer, not the Fund.  Because the court did not have jurisdiction to enter an award against the Fund, the panel properly vacated the court’s order.  We SUSTAIN. Opinion by MITCHELL, J.; GOREE, P.J., and PRINCE, J., concur. – Dec 3, 2021

Division II

119,191 – Paul E. Quigley, Plaintiff/Appellant, vs. Jamestown Executive Center Office Condominiums Owners’ Association, Inc., an Oklahoma Corporation, and Karen Black, Individually, Defendants/Appellees.  Appeal from the District Court of Oklahoma County, Honorable Natalie Mai, Trial Judge.  The plaintiff, Paul E. Quigley, appeals a summary judgment granted in favor of defendants, Jamestown Executive Center Office Condominiums Owners’ Association, Inc. and Karen Black. Quigley claims that the trial court erred by applying the applicable statute of repose, 12 O.S. § 109, which limits claims of negligent design and construction made against a property owner ten years after substantial completion. We find that Quigley’s claim rests, unavoidably, upon a theory that his injuries were caused by the defective design or construction of the premises in question. As such, the trial court’s grant of summary judgment is affirmed. AFFIRMED.  Opinion from Court of Civil Appeals, Division II, by BLACKWELL, J.; WISEMAN, P.J., and BARNES, J., concur. – Dec. 3, 2021

119,804 (Consolidated with Case No. 119,864) – Thomas John Hammons a/k/a T.J. Hammons, Plaintiff/Appellant, v. Jennifer Tunder; Roland V. Combs, III; and Roland V. Combs, III and Associates, PLC, Defendants/Appellees.  Appeal from the District Court of Oklahoma County, Hon. Richard Ogden, Trial Judge.  Plaintiff appeals from the trial court’s order granting the motion to dismiss of Defendant, Jennifer Tunder, and from the trial court’s order granting the motion to dismiss of the remaining Defendants.  Plaintiff does not contest the fact that he failed to satisfy the requirement set forth in 12 O.S. Supp. 2017 § 2004(I) regarding service of process within 180 days, and he has failed to show good cause why such service was not made.  Consequently, we conclude the trial court did not err in granting the motions to dismiss.  AFFIRMED.  Opinion from Court of Civil Appeals, Division II by BARNES, J.; WISEMAN, P.J., and BLACKWELL, J., concur. – Dec. 2, 2021

118,772 – Karen Townsend, Donna Shatto, Petitioners, and Brian DuBuc, Petitioner/Appellant, vs. Linda Prichard, Defendant/Appellee, and April Prichard and Eugene Prichard, Appellees, and April Whitaker, Gene Whitaker and Other Pets, Respondents. Appeal from the District Court of Okmulgee County, Honorable Cynthia D. Pickering, Trial Judge.  Brian DuBuc appeals a decision of the small claims court holding that he could not proceed with a forcible entry and detainer action because the defendants raised a claim of title at the hearing, divesting the court of jurisdiction.  On review, we find that Mr. DuBuc has failed to show either that the small claims court’s decision, which rests on a finding that the defendants invoked a colorable claim of title to the real estate at issue, was not supported by competent evidence or that the order was premised on any other legal error. Accordingly, we affirm.  AFFIRMED.  Opinion from Court of Civil Appeals, Division II, by BLACKWELL, J.; BARNES, J., concurs, and WISEMAN, P.J., concurs in result. – Dec. 2, 2021

119,258 – In the Matter of the Estate of Robert Lee Pearson Sr., Deceased, Robert Lee Pearson Jr., Plaintiff/Appellant, vs. Quenisha Pearson, Personal Representative of the Estate of Robert Lee Pearson Sr., Deceased, Defendant/Appellee.  Appeal from the District Court of Oklahoma County, Honorable Allen Welch, Trial Judge.  Robert Lee Pearson Jr. appeals the probate court’s interlocutory order, appealable by right, which denied his motion to vacate an order setting aside certain real-property conveyances he made during pendency of the above-captioned estate. Pearson Jr. had sought additional proceedings on the grounds that two of his witnesses were apparently unavailable at the relevant hearing, but were now ready to testify. On review, we find the trial court abused its discretion by failing to consider Pearson Jr.’s motion under 12 O.S. § 1031.1. Accordingly, the order denying the appellant’s motion to vacate is itself vacated, and the cause is remanded for further consideration. VACATED and REMANDED.  Opinion from Court of Civil Appeals, Division II, by BLACKWELL, J.; WISEMAN, P.J., and BARNES, J., concur. – Dec. 2, 2021

Division III

119,687 -Lu-Ray Petroleum, LLC, Plaintiff/Appellant, v. Red Bluff Resources Operating, LLC, Payne Exploration Company, and W.C. Payne Energy, LLC, Defendants/Appellees. Appeal from the District Court of Loagn County, Oklahoma.  Honorable Louis A. Duel, Trial Judge. Plaintiff/Appellant Lu-Ray Petroleum, LLC, appeals from summary judgment granted to Defendants/Appellees Red Bluff Resources Operating, LLC; Payne Exploration Company; and W.C. Payne Energy (collectively, Defendants). Lu-Ray sued Defendants for breach of contract and an accounting.  Defendants asserted Lu-Ray’s action was barred by the statute of limitations.  The undisputed material facts show Lu-Ray filed its Petition more than five years after it had notice of what it alleges was a breach of the parties’ agreement. Defendants were entitled to judgment as a matter of law and we AFFIRM. Opinion by SWINTON, C.J.; BELL, P.J., and GOREE, J. (sitting by designation), concur.- Dec 2. 2021