Courts and More Vol. 1 | No. 22 | June 2, 2021

Oklahoma Court of Civil Appeals

Division I

118,567 – Jeremy T. Stumbo, Plaintiff/Appellant, v. Katherine T. Froman, Defendant/Appellee.  Appeal from the District Court of Tulsa County, Oklahoma.  Honorable Linda J. Morrissey, Trial Judge.  Plaintiff/Appellant, Jeremy T. Stumbo (“Stumbo”), appeals a decision of the trial court in favor of Defendant/Appellee, Katherine T. Froman (“Froman”).  Stumbo and Froman were divorced during 2012.  The Parties’ decree awarded Froman the marital home subject to a requirement to refinance the home into her own name within two years.  If Froman failed to refinance the home within that time period, the decree provided that title of the home would be conveyed to Stumbo.  The trial court determined that Stumbo waived his right to strict compliance with the decree based on an oral agreement between the parties and denied Stumbo’s Petition for ejectment, quiet title, and declaratory relief.  In particular, the trial court found that Stumbo waived specific performance of the Divorce Decree.  We hold that the trial court erred, as a matter of law, on the issue of waiver.  Stumbo merely waived strict compliance with the time deadline established by the Divorce Decree, not the right to enforcement of the decree in its entirety.  In this matter of equitable cognizance, to refuse specific performance of the Divorce Decree also was an abuse of discretion.  We further hold that Stumbo is entitled to Declaratory Judgment, as follows: that based on the facts of this case, Froman must be granted a reasonable deadline to refinance the home into her name and remove Stumbo’s name from the indebtedness; that, upon remand, the trial court must establish a reasonable deadline for Froman to refinance the property and remove Stumbo from the indebtedness; and, that the trial court shall proceed appropriately following expiration of that deadline to either grant or deny the additional relief requested by Stumbo – i.e., to quiet title in one of the Parties’ names and to make a ruling on the claim for ejectment.  Consequently, we AFFIRM in part, REVERSE in part, and REMAND for proceedings consistent with this Opinion.  Opinion by PRINCE, J.; GOREE, P.J., and MITCHELL, J., concur. May 28, 2021

118,954  – In the Matter of the Estate of John Eddie McKinney, deceased, Pamela McKinney, Appellant, v. Bradley Mills, Appellee.  Appeal from the District Court of Pushmataha County, Oklahoma.  Honorable Jana Wallace, Judge.  In this interlocutory probate appeal, the decedent’s daughter challenged the admission of her father’s will to probate.  The trial court, after an evidentiary hearing, admitted the will.  The daughter appeals, arguing that the statutory will formalities were not satisfied, that her father did not have the requisite testamentary capacity, and that the will was the product of the undue influence of its proponent, the appellee.  We AFFIRM.  Opinion by MITCHELL, J.; GOREE, P.J., and PRINCE, J., concur. May 28, 2021

119,349  – John Freeny, Plaintiff/Appellant, v. Tulsa Fin Tube, Inc., Defendant/Appellee.  Appeal from the District Court of Tulsa County, Oklahoma.  Honorable Caroline Wall, Judge.  On March 28, 2017, John Freeny (“Appellant”) filed an action against Tulsa Fin Tube, Inc. (“Appellee”), his former employer, seeking relief under a Burk-type wrongful discharge claim and a defamation claim.  On November 13, 2018, Appellee filed its Motion for Summary Judgment (“MSJ”), which came on for decision on December 9, 2020.  Appellant now appeals the trial court’s January 27, 2021 Order (“Order”), which granted summary judgment in favor of Appellee on Appellant’s claims for relief and dismissed Appellant’s Petition.  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 the trial court’s Order. Opinion by PRINCE, J.; GOREE, P.J., and MITCHELL, J., concur. May 28, 2021

119,465  – Connor Smith, Plaintiff/Appellant, v. DFW Broadway Colorado, LLC d/b/a The Commons on Oak Tree Apartments; and Premier Property Management, LLC, Defendants/Appellees.  Appeal from the District Court of Cleveland County, Oklahoma.  Honorable Thad Balkman, District Court Judge. Connor Smith, Plaintiff/Appellant, appeals the summary judgment granted in favor of DFW Broadway Colorado, LLC and Premier Property Management, LLC, Defendants/Appellees, in an action for personal injury allegedly sustained as the direct result of a malfunctioning smoke detector in a residential apartment.  Defendants had no common law duty because they had no notice the smoke detector did not work.  Violation of Title 74 O.S. §324.11a(C), requiring a lessor to explain how to test a smoke detector, cannot be negligence per se in this action.  However, Defendants’ agreement in the lease to test the smoke detector may give rise to a duty in tort.  Summary judgment is affirmed in part and reversed in part. Opinion by GOREE, P.J.; MITCHELL, J., and PRINCE, J., concur. May 28, 2021

Division II

119,084 — Kevin Cross, Plaintiff/Appellee, vs. Daniel N. Littleton, Defendant/ Appellant.  Appeal from an order of the District Court of Lincoln County, Hon. Emily J. Mueller, Trial Judge.  Daniel N. Littleton appeals a trial court judgment in favor of Kevin Cross on his claim for diminution in the value of his vehicle arising from a car accident.  The issues on appeal are (1) whether the trial court erred in allowing expert testimony in this small claims action and (2) whether Cross’s claim for diminished value to his vehicle is supported by the evidence.  We find no error or abuse of discretion in the trial court’s decision to allow expert testimony when Littleton knew before the hearing that the expert was going to testify, had a copy of the expert’s evaluation, and did not pursue other avenues of relief open to him.  As to the second issue, Cross presented evidence of diminished value, and the trial court did not err in overruling Littleton’s demurrer to the evidence.  The trial court, weighing the evidence and considering the witnesses’ credibility, found in favor of Cross on his claim.  That determination is supported by the evidence, and we will not disturb the trial court’s decision.  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. May 26, 2021

Division III

119,203 – Jennifer Timmons, Petitioner, v. Flex N Gate Oklahoma LLC, Flex N Gate Oklahoma LLC (Own Risk 319362), and The Workers’ Compensation Court of Existing Claims, Respondents. Petitioner, Jennifer Timmons (Claimant), seeks review of an order of a three judge panel of the Workers’ Compensation Court of Existing Claims (Panel) which affirmed in part and modified in part the trial court’s decision.  The Panel found “THAT claimant failed to meet her burden of proving she had a date of awareness during a period when the court would have jurisdiction.”  Claimant argues this finding is against the clear weight of the evidence.  After de novo review of the record, this Court cannot find the Panel’s decision is against the clear weight of the evidence or contrary to law.  Accordingly, the Panel’s order is SUSTAINED. Opinion by BELL, J.; SWINTON, C.J., and PEMBERTON, P.J., concur. May 25, 2021 

118,804 – Spiritbank, Plaintiff/Appellee, v. Sean Griffin, Defendant/Appellant, and Vizalution, LLC, Defendant. Appeal from the District Court of Tulsa County, Oklahoma.  Honorable Linda G. Morrissey, Trial Judge. Defendant/Appellant Sean Griffin appeals from the denial of a motion to vacate default judgment in a collection action filed by Plaintiff/Appellee Spiritbank.  Appellant argues that his due process rights were violated because the journal entry of default judgment was entered with no meaningful notice, and that the district court lacked personal jurisdiction to enter a money judgment against Griffin where service was made by publication only.  Spiritbank argues that Griffin’s motion to vacate the default judgment was not timely filed.  We AFFIRM. Opinion by SWINTON, C.J.; PEMBERTON, P.J., and BELL, J., concur. May 26, 2021

118,909  – Tyler Estep and Kathrine Estep, Plaintiffs/Appellees, v. Steve Brandley and Annette Brandley, Defendants/Appellants.  Appeal from the District Court of Kingfisher County, Oklahoma.  Honorable Paul K. Woodward, Trial Judge. The parties dispute whether their real estate contract was modified by a text message exchange between Appellants Steve and Annette Brandley’s (Appellants) realtor and Appellee Katherine Estep. Real estate contracts are governed by the statute of frauds, and must be in writing and subscribed by the party to be charged. The agent for the party to be charged may sign the agreement on the party’s behalf but must have a written agreement, signed by the party to be charged, to have authority to contract on their behalf. The trial court erroneously found as a matter of law the text message exchange—which does not comply with the statute of frauds—modified the contract. Because there was no modification to the contract, judgment in Appellees favor was flawed, and Appellees Tyler and Katherine Estep (Appellees) did not fulfill their contractual obligations and breached the contract. Therefore, we REVERSE.  Opinion by PEMBERTON, P.J.; SWINTON, C.J., and BELL, J., concur. May 26, 2021

118,904 – Eric Albright, Petitioner, v. City of Tulsa, Own Risk Employer and The Workers’ Compensation Commission, Respondents.  Petitioner, Eric Albright (Claimant), seeks review of the Workers’ Compensation Commission’s (Commission) order affirming an Administrative Law Judge’s (ALJ) determination that Claimant’s vertigo and request for a psychiatric evaluation were not related to his previously adjudicated work-related head injury.  Claimant, a police officer for Respondent, City of Tulsa (Employer) was injured on-the-job when his cruiser was struck from behind while stopped at a traffic light.  The Commission found Claimant sustained compensable injuries to his left arm, left shoulder and head as a result of the accident, and reserved all other issues.  In the instant proceeding, Claimant sought a Commission determination that the proximate cause of his Benign Paroxysmal Positional Vertigo (BPPV) was the concussion he sustained in the work-related accident.  He also sought an award of medical treatment for an evaluation with a psychiatrist for depression and anxiety due to his head injury.  The ALJ found Claimant’s BPPV was not caused by his head injury and also denied Claimant’s request for a psychiatric evaluation.  The Commission affirmed.  In view of the reliable, material, probative and substantial competent evidence presented below, we conclude the Commission’s decision to deny compensability for Claimant’s BPPV was clearly erroneous.  Because Employer conceded below that Claimant’s request for a psychiatric evaluation was tied to any BPPV ruling, his psychiatric evaluation request is also compensable. REVERSED. Opinion by BELL, J.; SWINTON, C.J., concurs and PEMBERTON, P.J., dissents. May 28, 2021

Division IV

117,762 (Companion with Case Nos. 118,649 and 119,091) – Rebecca Lauren Clem-Sherman, et al., Plaintiff/Appellee, vs. Kane S. Sherman, Defendant, and David J. Potter, II; Consolidated Healthcare, LLC; Featherstone of Arkansas, LLC; Featherstone Assisted Living of Durant, LLC; Featherstone Assisted Living of Moore, LLC; Featherstone Assisted Living of Ada, LLC; Featherstone Assisted Living of Miami, LLC; ALF-Miami, LLC; and Tutela Holdings, LLC, Defendants/Appellants. Appeal from the District Court of Bryan County, Hon. Mark Campbell, Trial Judge. David J. Potter, II; Consolidated Healthcare, LLC; Featherstone of Arkansas, LLC; Featherstone Assisted Living of Durant, LLC; Featherstone Assisted Living of Moore, LLC; Featherstone Assisted Living of Ada, LLC; Featherstone Assisted Living of Miami, LLC; ALF-Miami, LLC; and Tutela Holdings, LLC (collectively, “Appellants”) appeal an interlocutory order granting Rebecca Lauren Clem-Sherman’s (Clem-Sherman) motion for temporary injunctive relief. Appellants assert Clem-Sherman failed to show she would suffer irreparable harm if the injunction were denied, contending her evidence was speculative and based on past actions and unsubstantiated fear of future transfers. Clem-Sherman disagrees, asserting the transfers and the financial difficulties she endured are the irreparable harm. Upon examination of the evidence, this Court determines the trial court’s order granting the injunction was not an abuse of discretion or clearly against the weight of the evidence. Accordingly, the trial court’s order granting Clem-Sherman’s motion for temporary injunctive relief is affirmed. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by HIXON, J.; WISEMAN, C.J., and THORNBRUGH, P.J., concur. May 21, 2021 

118,851 — In re the Matter of C.B. and C.B., Alleged Deprived Children, Asia Broussard, Appellant, vs. State of Oklahoma, Appellee.  Appeal from an Order of the District Court of Oklahoma County, Honorable Lydia Green, Trial Judge.  Asia Broussard (Mother) appeals termination of her parental rights to her minor children following jury trial.  Mother’s rights to the children were terminated on the grounds of failure to correct conditions under 10A O.S. Supp. 2016, § 1-4-904(B)(5), and length of time in foster care pursuant to 10A O.S. Supp. 2016, §§ 1-4-904(B)(16) and (B)(17), respectively.  We reject Mother’s contention that she was deprived of equal protection under the law with respect to the Indian Child Welfare Act (ICWA), 25 U.S.C.A. § 1901, et seq., which does not apply to the termination of parental rights to non-Indian children.  Based on review of the facts and applicable law, we find clear and convincing evidence supports the termination of Mother’s parental rights.  AFFIRMED.  Opinion from the Court of Civil Appeals, Division IV, by HIXON, P.J.; FISCHER, V.C.J., and RAPP, J., concur. May 27, 2021

119,187 — In re the Matter of C.B., an Alleged Deprived Child:  Darryl Hall, Appellant, vs. State of Oklahoma, Appellee.  Appeal from an Order of the District Court of Oklahoma County, Honorable Lydia Green, Trial Judge.  Darryl Hall (Father) appeals an order memorializing a jury verdict terminating his parental rights to the minor child, C.B., referred to as C.J.B.  C.J.B. was adjudicated as deprived and Father’s rights were terminated on grounds set forth in 10A O.S. Supp. 2016, § 1-4-904(B)(12), applied to an incarcerated parent.  Father asserts the jury’s verdict is not supported by clear and convincing evidence, that he was deprived of due process and equal protection of the laws because he was unable to appear in person for the trial, that juror misconduct necessitated a mistrial, and that he has been deprived of equal protection of the laws because he was subjected to a lesser standard of proof than applies to termination proceedings regarding an Indian child under the Indian Child Welfare Act (ICWA), 25 U.S.C.A. § 1901, et seq.  We reject Father’s assertions of error and affirm the trial court’s order terminating his parental rights to C.J.B.  AFFIRMED.  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. May 27, 2021

119,155 — Kristie Ho, Plaintiff/Appellant, vs. Tulsa Spine & Specialty Hospital, L.L.C., a domestic limited liability company, Defendant/Appellee.  Appeal from an Order of the District Court of Tulsa County, Honorable William Musseman, Trial Judge, granting Tulsa Spine & Specialty Hospital, L.L.C.’s (Hospital) motion to dismiss Appellant Kristie Ho’s (Ho) petition.  We review the trial court’s grant of Hospital’s motion to dismiss for failure to state a claim upon which relief may be granted de novo.  We conclude the order appealed neither allows for amendment nor contains a statement indicating amendment would not cure the defect(s).  The order therefore fails to comply with 12 O.S.2011, § 2012(G).  The order granting Hospital’s motion to dismiss is reversed and the matter remanded 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., and BARNES, J. (sitting by designation), concurs. May 27, 2021

118,799 — John Roscoe Caldwell, Jr., Petitioner/Appellant, vs. State of Oklahoma, ex rel. Oklahoma Horse Racing Commission, Respondent/Appellee.  Appeal from an Order of the District Court of Oklahoma County, Honorable Richard C. Ogden, Trial Judge.  John Roscoe Caldwell (Caldwell) appeals the district court’s Order Affirming the Decision and Order of the Oklahoma Horse Racing Commission (OHRC).  OHRC’s order affirmed fines assessed against Caldwell after two race horses tested positive for a prohibited substance.  Caldwell argued the agency’s order was clearly erroneous.  He also argued that the application of OKLA. ADMIN. CODE (OAC) 325:35-1-5(a), which provides a positive test is prima facie evidence that the prohibited substance was administrated by or with the knowledge of trainer or those under his supervision, violated his due process rights.  Caldwell points to no evidence admitted at the hearing rebutting the presumptions that arose when the horses tested positive for a prohibited substance, but complains that the veterinarian who collected the horses’ blood samples did not testify.  In view of the presumptions that arose under OAC 325:45-1-15, such testimony was not required.  Caldwell did not meet his burden to rebut the presumption by showing an anomaly in the collection, preservation, or transfer of the samples, and failed to establish application of agency regulations violated his due process rights.  We affirm the district court’s Order Affirming the Decision and Order of the OHRC.  AFFIRMED.  Opinion from the Court of Civil Appeals, Division IV, by HIXON, P.J.; FISCHER, V.C.J., and RAPP, J., concur. May 27, 2021

118,649 (Companion with Case Nos. 117,792 and 119,0191) – Rebecca Lauren Clem-Sherman, et al., Plaintiff/Appellee, vs. Kane Sherman, et al., Defendants, and David J. Potter, II; Consolidated Healthcare, LLC; and Tutela Holdings, LLC, Defendants/Appellants. Appeal from the District Court of Bryan County, Hon. Mark Campbell, Trial Judge. David J. Potter, II, Consolidated Healthcare, LLC, and Tutela Holdings, LLC (collectively, Appellants) appeal an order denying their motion to reconsider an order granting Rebecca Lauren Clem-Sherman (Clem-Sherman) partial summary judgment. Appellants’ motion to reconsider was properly a request for reconsideration of the trial court’s intermediate ruling granting Clem-Sherman partial summary adjudication. Appellants’ motion was not directed to a final order or judgment and was not the functional equivalent of a motion for new trial under 12 O.S.2011, § 651. Therefore, the trial court’s order denying Appellants’ motion to reconsider is not reviewable on appeal under 12 O.S.2011, § 952(b)(2). Further, Appellants did not seek to certify the order for immediate appeal. Consequently, the order from which Appellants seek to appeal does not fit into any of the categories from which a party may seek appellate relief. In the absence of an appealable order, this appeal is premature and subject to dismissal. We therefore dismiss the appeal and remand the case to the trial court for further proceedings. DISMISSED. Opinion from Court of Civil Appeals, Division IV, by HIXON, J.; WISEMAN, C.J., and THORNBRUGH, P.J., concur. May 21, 2021 

119,091 (Companion with Case Nos. 117,762 and 118,649) – Rebecca Lauren Clem-Sherman, et al., Plaintiff/Appellee, vs. David J. Potter, Sr.; David J. Potter, II; Consolidated Healthcare, LLC; Alf-Ada, LLC, Alf-Durant, LLC; Alf-Miami, LLC; Alf-Moore, LLC; Featherstone of Arkansas, LLC; Featherstone Assisted Living of Durant, LLC; Featherstone Assisted Living of Moore, LLC; Featherstone Assisted Living of Ada, LLC; Featherstone Assisted Living of Miami, LLC; Tutela Holdings, LLC, Defendants/Appellees, and Kane S. Sherman, Defendant. Appeal from the District Court of Bryan County, Hon. Mark Campbell, Trial Judge. David J. Potter, II; Consolidated Healthcare, LLC; and Tutela Holdings, LLC (collectively, Appellants) appeal an order denying a motion for new trial and/or motion to vacate an order granting Rebecca Lauren Clem-Sherman’s (Clem-Sherman) motion for order avoiding transfers. We find the trial court erroneously issued Clem-Sherman a provisional remedy without resolving necessary factual and legal issues and before resolving all outstanding claims, counterclaims, and cross-claims of the parties. Specifically, the court’s order is based on the erroneous assumption that Kane’s admission of a fraudulent intent to transfer the assisted living facilities entitled Clem-Sherman to wholesale avoidance of three transfers without consideration of whether an asset was transferred, the value or extent of Clem-Sherman’s creditor’s claim, whether Appellants were good faith transferees, the rights of subsequent transferees, the appropriate remedy available under Oklahoma’s Uniform Fraudulent Transfer Act, and other statutorily mandated considerations. This has resulted in lengthy piecemeal litigation and the grant of an inappropriate remedy founded on erroneous interlocutory orders. The court’s order is therefore reversed. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division IV, by HIXON, P.J.; FISCHER, V.C.J., concurs, and WISEMAN, J. (sitting by designation), concurs in result. May 21, 2021 

117,524 – Maria A. Laubach, Petitioner/Appellee, vs. Paul W. Laubach, Respondent/Appellant. Appeal from Order of the District Court of Blaine County, Hon. Ryan D. Reddick, Trial Judge. Paul Laubach appeals the district court’s order denying his application for contempt citation against Appellee Maria Laubach in the underlying action for divorce and child support. Paul claims that the district court’s denial of his application for contempt citation without a hearing was an abuse of discretion. After review of the record and applicable law, we find that the district court did not abuse its discretion. The order denying Paul’s application for contempt citation is affirmed. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by FISCHER, V.C.J.; HIXON, P.J., and RAPP, J., concur. May 20, 2021 

119,277 – Adelaide Sims, individually and on behalf of Donnie Sims, Jr., Plaintiff/Appellant, vs. Robert Johnson, Shelter Insurance, Defendant/Appellee. Appeal from an Order of the District Court of Oklahoma County, Hon. Catherine M. Burton, Trial Judge. The plaintiff, Adelaide Sims, individually and on behalf of D.S., Jr., appeal a Court Order on Defendant’s Motion to Enter Release and Satisfaction of Judgment and to Enforce Settlement Agreement entered in a Small Claims Court action brought by plaintiff against the defendant, Robert Johnson (Johnson). By Order of the Oklahoma Supreme Court, this appeal proceeds under Okla.Sup.Ct.R. 1.36, 12 O.S. Supp. 2020, Ch. 15, app. 1. Shelter has taken all steps to satisfy the trial court judgment and the settlement agreement. The trial court did not err by entering the Court Order on Defendant’s Motion to Enter Release and Satisfaction of Judgment and to Enforce Settlement Agreement. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by RAPP, J.; FISCHER, V.C.J., and WISEMAN, P.J. (sitting by designation), concur. May 20, 2021 

118,282 – Nina Flannery, individually and as a beneficiary of the Osborne Mineral Trust, Plaintiff/Appellant, vs. Ramona L. Wolf, attorney at law, individually and as acting Successor Trustee of the Osborne Mineral Trust; John E. Wolf, III, and John Justin Wolf, as acting Successor Trustees of the Osborne Mineral Trust, Defendants/Appellees.  Appeal from Order of the District Court of Oklahoma County, Hon. Don Andrews, Trial Judge.  Appellant Nina Flannery appeals the district court’s order finding in favor of Trustees Ramona Wolf, John E. Wolf, and John Justin Wolf.  After review of the relevant law and record, we find that the district court’s findings that Ramona “did not act in bad faith, engage in intentional misconduct, knowingly violate the law, or willfully violate or disobey” any orders of the court are not clearly against the weight of the evidence or contrary to a governing principle of law.  In addition, we have reviewed the record and conclude that the district court’s finding that Nina’s claim is barred by the doctrine of laches is also not against the clear weight of the evidence.  The order of the district court is affirmed.  AFFIRMED.  Opinion from Court of Civil Appeals, Division IV, by FISCHER, V.C.J.; HIXON, P.J., and RAPP, J., concur.  May 28, 2021

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