fbpx

News

Dispositions Other than by Published Opinions | October 27

October 26, 2021

Courts and More Vol. 1 | No. 42 | October 27, 2021

Oklahoma Court of Civil Appeals

Division I

119,098  –  Steven Holder d/b/a Holder’s Quality Fencing & Land Service, Plaintiff/Appellee, v. Zac Kirby and ZK Enterprise, Inc., Defendants/Appellants. Appeal from the District Court of Kay County, Oklahoma.  Honorable David Wilike, Trial Judge. Defendants/Appellants, Zac Kirby and ZK Enterprise, Inc. (Defendants), appeal the order of the small claims court awarding damages to Plaintiff/Appellee, Steven Holder d/b/a Holder’s Quality Fencing & Land Service (Holder).  Holder brought suit for $9,774.36 to recover the unpaid cost of labor and materials he incurred in building a fence on Defendants’ property.  Defendants allege the parties had an unwritten contract that Holder would build the fence for $10,000.  Defendants had made  payments to Holder totaling $10,000.  Defendants filed a counterclaim seeking damages caused when Holder ruptured a gas pipe while constructing the fence.  The court found the issues in favor of Plaintiff/Holder and entered judgment for him in the amount of $7,774.36.  The court also granted attorney fees and costs to Holder as the prevailing party.  Both parties appeal.  Defendants contend they had paid everything they owed under their verbal contract with Holder.  Holder alleges the award of fees and costs is unreasonable and should be increased.  We find the court had competent evidence to enter judgment for Holder, and the court did not abuse its discretion in its calculation of attorney’s fees and costs.  We AFFIRM the underlying judgment and the award of attorney fees. Opinion by MITCHELL, J.; GOREE, P.J., and PRINCE, J., concur.  October 22, 2021

 119,209  –  In Re the marriage of Faulkenberry: Jessica Faulkenberry, Petitioner/Appellee, v. Jefferson Waylon Faulkenberry, Respondent/Appellant.  Appeal from the District Court of Tulsa County, Oklahoma.  Honorable Tammy Bruce, Judge.     Respondent/Appellant Jefferson Waylon Faulkenberry (Father) appeals from the trial court’s order entering a five-year victim’s protection order and modifying the parties’ prior joint custody arrangement to award sole custody to Petitioner/Appellee Jessica Faulkenberry (Mother).  Father contends the protective order was not warranted.  He also claims Mother failed to show the permanent change in circumstances required to modify custody.  We find the court’s decisions were not an abuse of discretion or against the clear weight of the evidence.  Accordingly, we AFFIRM.  Opinion by MITCHELL, J.; GOREE, P.J., and PRINCE, J., concur.  October 22, 2021

119,527  –  Kraftours Company. An Oklahoma corporation, Plaintiff/Appellee, v. Nu-Roof & Construction, Inc., an Oklahoma corporation Bradley Parson, an individual; Rickey Stanley, an individual; Cassidy Benner, an individual; Chris Merriott, an individual; and Shane Emerson, an individual, Defendants/Appellants.  Appeal from the District Court of Tulsa County, Oklahoma.  Honorable Doughlas E. Drummond, Judge. Defendants/Appellants Nu-Roof & Construction, Inc., Bradley Parson, Rickey Stanley, Cassidy Benner, Chris Merriott, and Shane Emerson (Tenants) appeal from the trial court’s order granting summary judgment to Plaintiff/Appellee Kraftours Company (Landlord) on Landlord’s breach of contract claim for unpaid rent.  Tenants contend their counterclaim for constructive eviction created disputed questions of material fact that should have prevented summary judgment.  After de novo review, we find Tenants’ constructive eviction defense fails as a matter of law because they did not show Landlord committed a grave or permanent act or omission or that they were unable to use the property for its intended purpose.  Accordingly, we AFFIRM.  Opinion by MITCHELL, J.; GOREE, P.J., and PRINCE, J., concur.  October 22, 2021

119,763  –  Matthew Comstock, Plaintiff/Appellant, v. Midland States Bancorp, Inc., an Illinois Corporation, Defendant, and Ebrahim Namdar, Defendant/Appellee.  Appeal from the District Court of Tulsa County, Oklahoma.  Honorable William D. LaFortune, Trial Judge.  The issue presented for review is whether an appraiser, who was hired by a lending company to appraise a home for financing purposes, may be liable to the purchaser of the property when the appraisal allegedly included false or misleading information.  Plaintiff/Appellant, Matthew Comstock, appeals an order granting summary judgment in favor of the Defendant/Appellee, Ebrahim Namdar.  Comstock purchased a home in Tulsa, Oklahoma and, in order to obtain financing for the purchase, Namdar appraised the home for the lending institution.  The first appraisal indicated that the home had 3,663 square feet of gross living area.  Comstock applied for a small business loan more than a year after he purchased the home.  A second appraisal was obtained for that lender.  The second appraisal listed the gross living area as 3,284 square feet.  Comstock sued the first appraiser, Namdar, because he alleged that Namdar’s inaccurate appraisal caused him to pay a substantially higher price for the home.  Namdar sought summary judgment, claiming that he owed no duty to Comstock and that Comstock was not a third party beneficiary of the appraisal obtained by Midland.  The trial court agreed and granted summary judgment.  We find that, based on the common law principle set forth in the Restatement of Torts (Second) § 552, Namdar did owe a duty of care to Comstock.  Notwithstanding that duty, the undisputed facts demonstrate that Comstock did not rely on the appraisal or the square footage listed in the appraisal prior to purchasing the home.  Absent reliance, Comstock cannot prove the elements necessary for negligence.  We additionally find that Comstock cannot maintain a lawsuit on any contract-based theory.  Accordingly, we AFFIRM the Final Journal Entry of Judgment granting summary judgment to Namdar.  Opinion by PRINCE, J; GOREE, P.J., and MITCHELL, J., concur.  October 22, 2021

119,773  –  (comp. w/119,772 and 119,774) FourPoint Energy, LLC, Plaintiff/Appellant, v. BCE-Mach II, LLC, Defendant/Appellee. Appeal from the District Court of Roger Mills County, Oklahoma.  Honorable Jill C. Weedon, Trial Judge. FourPoint Energy, LLC (“Appellant”) appeals the trial court’s July 6, 2021 interlocutory order, which in part sustained BCE-Mach II, LLC’s (“Appellee”) Motion to Dismiss (“MTD”) some of Appellant’s claims for lack of subject matter jurisdiction pursuant to 12 O.S. § 2012(F)(3).  In its Petition, which Appellee moved to dismiss, Appellant asked the trial court: (1) to declare Appellant operator of scores of oil and gas wells (many of which were subject to Oklahoma Corporation Commission (“Commission”) forced pooling orders); (2) to deliver physical operations of the wells at issue to Appellant; and (3) to grant Appellant a monetary award stemming from the alleged breach of dozens of joint operating agreements (“JOAs”).  This Court holds that the trial court properly sustained the Appellee’s MTD as to Appellant’s first two requests due to a lack of subject matter jurisdiction.  However, this Court also holds that the trial court erred in granting Appellee’s MTD on Appellant’s breach of contract claims.  Under the controlling law, Appellant should have been given leave to amend its Petition and allege breach of contract for reasons other than the Appellee’s failure to turn over operatorship to the Appellant.  Accordingly, we AFFIRM IN PART, REVERSE IN PART, AND REMAND this action for further proceedings consistent with this Opinion.  Opinion by PRINCE, J.; GOREE, P.J., and MITCHELL, J., concur.   October 22, 2021

 119,774  –  (comp. w/119,772 and 119,773) FourPoint Energy, LLC, Plaintiff/Appellant, v. BCE-Mach II, LLC, Defendant/Appellee. Appeal from the District Court of Washita County, Oklahoma.  Honorable Jill C. Weedon, Trial Judge.  FourPoint Energy, LLC (“Appellant”) appeals the trial court’s July 6, 2021 interlocutory order, which in part sustained BCE-Mach II, LLC’s (“Appellee”) Motion to Dismiss (“MTD”) some of Appellant’s claims for lack of subject matter jurisdiction pursuant to 12 O.S. § 2012(F)(3).  In its Petition, which Appellee moved to dismiss, Appellant asked the trial court: (1) to declare Appellant operator of scores of oil and gas wells (many of which were subject to Oklahoma Corporation Commission (“Commission”) forced pooling orders); (2) to deliver physical operations of the wells at issue to Appellant; and (3) to grant Appellant a monetary award stemming from the alleged breach of dozens of joint operating agreements (“JOAs”).  This Court holds that the trial court properly sustained the Appellee’s MTD as to Appellant’s first two requests due to a lack of subject matter jurisdiction.  However, this Court also holds that the trial court erred in granting Appellee’s MTD on Appellant’s breach of contract claims.  Under the controlling law, Appellant should have been given leave to amend its Petition and allege breach of contract for reasons other than the Appellee’s failure to turn over operatorship to the Appellant.  Accordingly, we AFFIRM IN PART, REVERSE IN PART, AND REMAND this action for further proceedings consistent with this Opinion.   Opinion by PRINCE, J.; GOREE, P.J., and MITCHELL, J., concur.  October 22, 2021

119,865  –  Daniel Martin, Plaintiff/Appellant, v. Mercy Hospital, Thisomingo, Inc.  Defendant/Appellee.  Appeal from the District Court of Johnston County, Oklahoma.  Honorable Laura Corbin, Judge.  Plaintiff/Appellant, Daniel Martin, was an invitee on the premises of Mercy Hospital Tishomingo, Inc., Defendant/Appellee.  Reasonable minds could not differ that the alleged dangerous condition was open and obvious.  Appellee owes no legal duty and the district court’s summary judgment is affirmed.  Opinion by GOREE, P.J.; MITCHELL, J., and PRINCE, J., concur.  October 22, 2021

Division II

Division III

118,568  –  Marisol Ibarra-Hass, Petitioner/Appellee, v. Danny Hass, Respondent/Appellant.  Appeal from the District Court of Tulsa County, Oklahoma.  Honorable Owen Evans and Honorable Julie Doss, Trial Judges. In this proceeding to enforce the payment of child support,   Respondent/Appellant, Danny J. Hass (Father), appeals from the trial court’s judgment and sentence entered upon a jury verdict holding him in indirect contempt of court for failure to pay child support.  Father also appeals from a separate trial court order denying Father’s application to hold Petitioner/Appellee, Marisol Ibarra-Hass (Mother), in contempt for claiming the minor child as a dependent on her 2014 income tax return.  The divorce decree awarded Father the dependent child credit in even years and Mother was awarded the credit in odd years.  Father asserts Mother violated the parties’ agreement when Father allowed Mother to claim the minor child as a dependent in 2014, allegedly in exchange for Mother’s waiver of Father’s obligation to pay child support in 2016.  In Father’s contempt proceeding against Mother, the trial court held there was no “meeting of the minds” as to the alleged agreement and Mother did not willfully violate the divorce decree when she claimed the dependent child tax credit in 2014 because she believed Father allowed her to make that claim.  We AFFIRM the trial courts’ order and judgment. Opinion by BELL, P.J.; SWINTON, C.J., and MITCHELL, J. (sitting by designation), concur.  October 26, 2021

119,360  –  Charlene Skene, Petitioner, v. Dressbarn and Safety National Casualty Corporarion, Respondents.  Appeal from the workers’ compensation commission en banc. Petitioner Charlene Skene seeks review of an order of the Workers’ Compensation Commission which affirmed the ALJ’s award of 30% PPD to Skene’s right knee.  Petitioner’s medical expert found Skene sustained 75% PPD.  Respondent Dress Barn (Employer) submitted a medical report opining Skene sustained 37% PPD, of which 50% was due to pre-existing degenerative joint disease, despite there being no evidence or finding of pre-existing degenerative joint disease in the record. The award of 30% PPD is arbitrary and is clearly erroneous in view of the reliable, material, probative, and substantial competent evidence.  We VACATE AND REMAND with directions to enter an award supported by the medical evidence. Opinion by SWINTON, C.J.; BELL, P.J., and MITCHELL, J. (sitting by designation), concur.  October 26, 2021

Division IV


Return To:

News Category: