Oklahoma Court of Civil Appeals

DIVISION I

119,174 – David Shawn Fritz, Plaintiff/Appellant, v. The Estates of the Taliaferros and Andria Taliaferro Locke, Executrix, and Estates of Billy Pat Eberhart and Michael Eberhart/Debra Dobbs, Executors, and Dwight Crawfor d/b/a C&G Cattle Company, and Tom Crawford, and Eric & Joy Y. Skiles, and Pennymac, Inc., and One J. Doe, Deed Creator, Defendants/Appellees.  Appeal from the District Court of Love County, Oklahoma.  Honorable Wallace Coppedge. Plaintiff/Appellant, David Shawn Fritz, appeals a default judgment.  The trial court granted a default judgment after Fritz appeared at the pre-trial conference without a proposed pre-trial order in violation of Rule 5 of the Rules for District Courts of Oklahoma, Rule 4.2 of the Local District Court Rules for the Twentieth Judicial District and an Order for Pre-Trial Conference filed in the trial court.  Fritz was provided with notice of the requirement to prepare a proposed pre-trial order and the potential consequences for failure to prepare a proposed order approximately nine months prior to the pre-trial conference.  We find that the Final Order of the trial court striking all of Fritz’s pleadings and granting a judgment in favor of Appellees does not constitute an abuse of discretion.  Accordingly, the Final Order is AFFIRMED.  Opinion by PRINCE, J.; GOREE, P.J., and MITCHELL, J., concur. – Nov 5, 2021

119,372 – Jeremy Scott Franklin, Petitioner/Appellant, v. Kyra Ann Franklin, Respondent/Appellee.  Appeal from the District Court of Comanche County, Oklahoma.  Honorable Irma Newburn, Judge.  Petitioner/Appellant Jeremy Scott Franklin (Father) appeals from a Decree of Divorce and Dissolution of Marriage from Respondent/Appellee Kyra Ann Franklin and the denial of his Motion to Partially Vacate or Reconsider Judgment of the Divorce Decree (Motion to Vacate).  Specifically, Father challenges the trial court’s order requiring supervised visitation with his minor child, C.I.F.  We find, after de novo review, Father’s due process rights were not violated by the court’s sua sponte order for supervised visitation; the trial court’s decree was not otherwise against the clear weight of the evidence; and the court did not abuse its discretion when it denied Father’s Motion to Vacate.  Additionally, Father requested custody of C.I.F.  This issue was not addressed in the Motion to Vacate and is waived.  See 12 O.S. 2011 §991(b).  The judgment of the trial court is affirmed.  Opinion by MITCHELL, J.; GOREE, P.J., concurs, and PRINCE, J., specially concurs. – Nov. 5, 2021

119,536 – Kevin Easley, Plaintiff/Appellant, City of Norman, Defendant/Appellee.  Appeal from the District Court of Cleveland County, Oklahoma.  Honorable Michael D. Tupper, Judge.  Plaintiff/Appellant Kevin Easley (Easley) appeals from two trial court orders entered in favor of Defendant/Appellee City of Norman (City).  Easley sought district court review of the Norman Board of Adjustment’s denial of his request for a variance from the Norman Historical District Ordinance.  The court granted City’s motion to dismiss the appeal for untimeliness and denied Easley’s subsequent motion for new trial.  We AFFIRM.  Opinion by MITCHELL, J.; GOREE, P.J., and PRINCE, J.concur. – Nov. 5, 2021

DIVISION II

119,273 – Nichell Miko Garcia and Minor Child, Plaintiffs/Appellees, v. Adrian Adam Tarkington, Defendant/Appellant.  Appeal from the District Court of Oklahoma County, Hon. Perry Hudson, Trial Judge.  Adrian Adam Tarkington appeals from the district court’s order denying his motion to vacate a protective order.  Mr. Tarkington filed his motion to vacate eleven years after the filing of the protective order.  Because no basis for the vacating of a final order is applicable to this case, we conclude the trial court did not abuse its discretion in denying Mr. Tarkington’s motion to vacate.  AFFIRMED.  Opinion from Court of Civil Appeals, Division II, by BARNES, J.; WISEMAN, P.J., and BLACKWELL, J., concur. – Nov. 5, 2021

119,575 – Bryant Premium Real Estate, LLC, an Oklahoma Limited Liability Company, Plaintiff/Appellee, v. Michael C. Morgan and Marla M. Morgan, husband and wife, Defendants/Appellants.  Appeal from the District Court of Oklahoma County, Hon. Susan Stallings, Trial Judge.  In this action for encroachment and continuing trespass, Michael C. Morgan and Marla M. Morgan (collectively, Defendants) appeal from a judgment granting summary judgment to Bryant Premium Real Estate, LLC (Plaintiff) and denying Defendants’ counter-motion for summary judgment on their counterclaim of adverse possession and quiet title.  Based on the law and our review of the summary judgment record, we conclude the trial court properly granted summary judgment to Plaintiff on Defendants’ counterclaim of adverse possession and quiet title.  No controverted questions of material fact remain as to the needed element of hostility and claim of right; therefore, Defendants’ counterclaim fails.  We further conclude the trial court properly determined that Plaintiff’s continuing trespass claim is not barred by the statute of limitations.  However, the reasonableness of the use of alleged encroaching structures for purposes of the easement present a factual question not properly decided on summary judgment.  Therefore, we reverse the trial court’s grant of summary judgment to Plaintiff on its continuing trespass claim and remand for further proceedings on this issue.  Accordingly, we affirm in part, reverse in part, and remand for further proceedings.  AFFIRMED IN PART,REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS.  Opinion from Court of Civil Appeals, Division II, by BARNES, J.; WISEMAN, P.J., concurs, and BLACKWELL, J., concurs specially. –  Nov. 5, 2021

118,943 – In re the Marriage of: Zachary Aaron Coplon, Petitioner/Appellee, v. Kali Danielle Coplon, Respondent/Appellant.  Appeal from the District Court of Oklahoma County, Hon. Barry L. Hafar, Trial Judge.  Respondent (Mother) appeals from the district court’s Decree of Dissolution of Marriage and Order for Attorney Fees.  We vacate that portion of the Decree denying Mother’s request for reimbursement of day care expenses paid during the pendency of the proceedings, and we remand this case with instructions to the district court to order Petitioner (Father) to pay an appropriate portion of child care expenses that were reasonably necessary to enable Mother to attend school.  We otherwise affirm the Decree, and we also affirm the Order for Attorney Fees.  AFFIRMED IN PART, VACATED IN PART, AND REMANDED WITH INSTRUCTIONS.  Opinion from Court of Civil Appeals, Division II, by BARNES, J.; WISEMAN, P.J., and BLACKWELL, J., concur. – Nov. 4, 2021

118482 – Brian Smith, Plaintiff/Appellee, vs. Matt Farnsworth and Elizabeth Farnsworth, Defendants/Appellants. Appeal of an Order of the District Court of Oklahoma County, Hon. Geary Walke, Trial Judge. The appellants, Matt and Elizabeth Farnsworth, appeal a small claims judgment against them in the amount of $10,000 for damages to a residential property they leased from the appellee, Brian Smith. The tenants argue that because the landlord bothretained the tenants’ $1,400 security deposit (which was intended to cover damages) and requested a judgment of $10,000 for damages, the trial court was without subject matter jurisdiction because the landlord was attempting to recover an amount in damages greater than the $10,000 jurisdictional limit of small claims court. The statute in question requires only that “the amount sought to be recovered, exclusive of attorney fees and other court costs, does not exceed Ten Thousand Dollars ….” 12 O.S. § 1751. The amount received outside the judicial process has no bearing on the jurisdictional limit. The trial court, therefore, had jurisdiction to hear the landlord’s claim. The tenants also appeal the amount of damages proved at trial. However, the tenants failed to appear at trial, did not ensure that a stenographic recording of the relevant hearing was made, or provide a narrative statement on appeal in lieu of such a transcript, as permitted by Supreme Court Rule 1.30. The tenants have failed to produce a record supporting their claim that the evidence presented to the trial court was insufficient to support the judgment. AFFIRMED. Opinion from the Court of Civil Appeals, Division II by BLACKWELL, J.; WISEMAN, P.J., and BARNES, J., concur. – Nov. 9, 2021

Division III

119,235 – Kim Green, Appellant, v. Timmy Elliot, Appellee. Appeal from the District Court of Grady County, Oklahoma.  Honorable Michael C. Flanagan, Trial Judge. Appellant Kim Green appeals from an order denying a request to distribute the Estate of Charles Brown pursuant to a family settlement agreement and ordering a surcharge requested by Appellee Timmy Elliott, a judgment creditor of an heir.  Appellant argues on appeal that the trial court erred in allowing the judgment creditor standing to pursue the claim for a surcharge because Oklahoma law only allows creditors standing in very limited circumstances, and that it was error to deny the family’s request to distribute the Estate by agreement because there was sufficient evidence to support the family settlement.  We AFFIRM IN PART, REVERSE IN PART, AND REMAND the case for proceedings consistent with this opinion. Opinion by SWINTON, C.J.; BELL, P.J., and MITCHELL, J. (sitting by designation), concur. – Nov. 3, 2021

117,857 – Trak 1 Technology, Inc., an Oklahoma corporation; and Premier Staffing Services, LLC, an Oklahoma limited liability company, Plaintiffs/Appellees, v. Kimberly Kramer and Brett Kramer, Defendants/Appellants.  Appeal from the District Court of Tulsa County, Oklahoma.  Honorable Daman H. Cantrell, Trial Judge. Defendants/Appellants, Kimberly Kramer and Brett Kramer, appeal from the trial court’s judgment imposing a constructive trust on their home.  Brett Kramer also appeals from the trial court’s order finding he was unjustly enriched by Kimberly’s embezzlement of nearly $1.8 million from Plaintiffs/Appellees and that he fraudulently conveyed assets to purchase a new house.  Brett further appeals from a separate trial court order imposing a constructive trust on the new house.  AFFIRMED. Opinion by BELL, P.J.; SWINTON, C.J., and PRINCE, J. (Sitting by designation), concur.

119,194 –  Kirt Thacker, Plaintiff/Appellant, v. Scott Walton, John Singer, Steve Cox, Myron Grubowski, Bill Jones, Russell Guilfoyle, William “Bill” Higgins, Erin O’Quin, Carl Williams, Sally Williams and Edith Singer, Defendants/Appellees. Appeal from the District Court of Rogers County, Oklahoma.  Honorable Daman Cantrell, Trial Judge. In this action for defamation, Plaintiff/Appellant, Kirt Thacker, appeals the district court’s grant of summary judgment in favor of three of the Defendants/Appellees, John Singer, Steve Cox and Myron Grubowski. Thacker’s petition alleged Defendants, John Singer, Scott Walton, Steve Cox, Russell Guilfoyle, Bill Jones and Myron Grubowski signed and filed a “Petition for Grand Jury Investigation” with the Rogers County Court Clerk (Rogers County Case No. GJ-2013-01). AFFIRMED under Rule 1.202 (b) and (d). Opinion by BELL, P.J.; MITCHELL, J. (sitting by designation), and PRINCE, J. (Sitting by designation), concur.

119,464 – In the Matter of the Adoption of M.D.M, a Minor Child, Lawanna Mitchem, Petitioner/Appellant, v. Floyd Eugene Robertson, Brandy Lanette Miller, and, Jeremy Dale Miller, Respondents/Appellees.  Appeal from the District Court of Johnston County, Oklahoma.  Honorable Laura Corbin, Trial Judge. Appellant Lawanna Mitchem (Mitchem), maternal grandmother of minor child M.D.M., appeals the trial court’s denial of her Petition for Adoption of M.D.M. In adoption proceedings, the best interests of the child serve as the guiding principle. We AFFIRM the trial court’s order, finding the trial court did not abuse its discretion or incorrectly apply Oklahoma statutes by determining Mitchem’s adoption of M.D.M. was not in the best interests of the minor child. Opinion by BELL, P.J.; SWINTON, C.J., and PRINCE, J. (Sitting by designation), concur.

119,484 – In the Matter of A.R.S., Alleged Deprived Child, State of Oklahoma, Petitioner/Appellee, v. Athena Rae Roseann Collina, Respondent/Appellant. Appeal from the District Court of Tulsa County, Oklahoma.  Honorable Teresa Dreiling, Trial Judge. Respondent/Appellant Athena Rae Roseann Collins appeals from a jury verdict terminating her parental rights to A.R.S. (Child). At trial, Petitioner/Appellee the State of Oklahoma presented clear and convincing evidence showing it made active efforts to provide remedial services to prevent the breakup of an Indian family which were unsuccessful and that termination was in Child’s best interests.  We find no abuse of discretion in the trial court’s decision to allow Child to testify outside Collins’s presence. We AFFIRM.   Opinion by SWINTON, C.J.; BELL, P.J., and PRINCE, J. (Sitting by designation), concur.

119,632 – In the Matter of: J.L.G. and K.G., Adjudicated Deprived Children, Kyon Gray, Petitioner/Appellant, v. State of Oklahoma, Respondent/Appellee.  Appeal from the District Court of Bryan County, Oklahoma.  Honorable Trace C. Sherrill, Trial Judge. Kyon Gray (Appellant) requests the review of the April 26, 2021 Order terminating his parental rights to deprived children J.L.G. and K.G. Because the Order is supported by clear and convincing evidence, and Appellant received competent and effective assistance of counsel during his trial, we AFFIRM. Opinion by BELL, P.J.; SWINTON, C.J., and MITCHELL, J. (Sitting by designation), concur. 

119,765 – Janice Steidley and Larry Steidley, Plaintiffs/Appellants, v. Justin Thurman, Diana Thurman, John Spencer Bryan, Steven James Terrill, Bryan and Terrill Law, P.L.L.C., Salesha Wilken and Community Newspaper Holdings, Inc. d/b/a The Claremore Daily Progress, Defendants/Appellees.  Appeal from the District Court of Tulsa County, Oklahoma.  Honorable William J. Musseman, Trial Judge. Appellants, Janice and Larry Steidley, seek review of the following trial court orders: 1) the April 15, 2019 Order on Newspaper Defendants’ Motion to Amend Their Motion to Dismiss; 2) the August 5, 2019 Order on the Motion to Dismiss by the Newspaper Defendants and Amended Motion to Dismiss by the Newspaper Defendants; 3) orders granting summary judgment in favor of Law Firm Defendants and denying Steidleys’ motion for partial summary judgment as to John Spencer Bryan and Bryan & Terrill Law, PLLC; and 4) orders filed May 30, 2019 granting other defendants’ motions to dismiss. Each order is affirmed for these corresponding reasons: 1) The trial court committed no legal error by allowing Newspaper Defendants leave to file an amended motion to dismiss, to which Plaintiffs were permitted to respond; 2) The well-articulated August 5, 2019 dismissal order adequately explains the trial court’s decision and is affirmed under Rule 1.202(d); and 3) Plaintiffs’ propositions addressing the orders referenced in categories 3 and 4 (designated in Exhibit “C” to the Petition in Error as issues III-VII), above, are too generalized and imprecise to have preserved those issues for appeal. Opinion by BELL, P.J.; MITCHELL, J. (sitting by designation), concurs and GOREE, J. (Sitting by designation), dissents.

Division IV

119,263 – Mustang Creek HOA, Plaintiff/Appellee, vs. Lynn Garst, an individual, and Patty Garst, an individual, Defendants/Appellants. Appeal from an Order of the District Court of Canadian County, Hon. Khristan K. Strubhar, Trial Judge. The defendants, Lynn Garst and Patty Garst (collectively Garst), appeal a judgment in favor of Mustang Creek Home Owners Association (HOA) entered in a Small Claims action brought by HOA. Garst purchased property that contained restrictive covenants, including mandatory membership in a homeowners’ association. Garst paid the dues for the first year and did not pay thereafter. HOA sued and the trial court awarded judgment for the past due dues and associated costs. Garst maintains that the mandatory membership requirement never was enacted under the terms of the restrictive covenants. This Court ruled that the facts and terms of the conveyances show that the restrictive covenant requirement for mandatory membership was activated prior to Garst becoming an owner. Moreover, Garst voluntarily joined the HOA and paid dues the first year after acquiring their property. Thus, Garst is bound by the restrictive covenant requiring membership. The trial court did not err in awarding judgment against Garst.  AFFIRMED.  Opinion from Court of Civil Appeals, Division IV, by RAPP, J.; FISCHER, V.C.J., and HIXON, P.J., concur. – November 9, 2021

118,831 (Consolidated with Case No. 119,003) — Deep Well Tubular Services, Inc., an Oklahoma Corporation, Plaintiff/Appellee, vs. Mid-Continent Casualty Company, an Oklahoma Corporation, Defendant/Appellant.  Appeal from an Order of the District Court of Oklahoma County, Hon. Don Andrews, Trial Judge. Defendant Mid-Continent Casualty Company (MCC) appeals judgment following jury trial entered in favor of its insured, Deep Well Tubular Services, Inc. (DWT), on a claim for breach of contract, and an award of costs and fees to DWT as the prevailing party. DWT counter-appeals the trial court’s grant of summary judgment to MCC on breach of the covenant of good faith and fair dealing and a claim of unjust enrichment, the grant of demurrer to MCC on DWT’s claim that the contract was subject to construction under the doctrine of reasonable expectations, and the court’s refusal to instruct on its claim for consequential damages. On review of the facts of record and the arguments of the parties, we affirm the trial court’s grant of partial summary judgment, reverse the trial court’s judgment on breach of contract and direct the trial court to enter judgment for MCC on DWT’s claims in their entirety. Accordingly, we also reverse and vacate the trial court’s modified judgment incorporating attorney fees and costs. AFFIRMED IN PART, REVERSED IN PART AND REMANDED WITH INSTRUCTIONS. Opinion from Court of Civil Appeals, Division IV, by HIXON, P.J.; FISCHER, V.C.J., and RAPP, J., concur. – Nov. 4, 2021

119,107 — Golden Tribe, LLC, an Oklahoma limited liability company, Plaintiff/ Appellant, vs. City of Norman, Oklahoma, a municipal corporation, Defendant/ Appellee.  Appeal from an Order of the District Court of Cleveland County, Hon. Jeff Virgin, Trial Judge. Golden Tribe, LLC, appeals a Judgment denying its request for an injunction prohibiting City of Norman, Oklahoma (City) from enforcing certain zoning ordinances and land-use regulations and permitting it to develop real property. The conflicting evidence before the district court indicates City’s denial of Golden Tribe’s Applications was not arbitrary and capricious as it was fairly debatable whether the change in circumstances criteria had been satisfied. Thus, the district court was required to defer to City’s legislative judgment to retain the current zoning and land use designations for the real property. The district court’s judgment denying Golden Tribe’s requested relief is therefore not against the clear weight of the evidence and is affirmed.  AFFIRMED.  Opinion from Court of Civil Appeals, Division IV, by HIXON, P.J.; FISCHER, V.C.J., and RAPP, J., concur. – November 5, 2021