Courts and More Vol. 1 | No. 38 | September 29, 2021

Oklahoma Court of Civil Appeals

Division I

Division II

117,986 — Bank of America, N.A., Plaintiff/Appellee, vs. Thomas Mortensen and Carrie Mortensen, Defendants/Appellants, and Jane Doe, as Occupant of the Premises; John Doe, as Occupant of the Premises; United States of America ex rel. Internal Revenue Service; and State of Oklahoma ex rel. Oklahoma Tax Commission.  Appeal from an Order of the District Court of Tulsa County, Honorable Rebecca Nightingale, Trial Judge.  Defendants Thomas and Carrie Mortenson appeal the district court’s denial of their motion to vacate the sale and the confirmation of sheriff’s sale made as part of a foreclosure proceeding.  On review, we find that the record on appeal indicates the court lacked jurisdiction to order the sale or to confirm the sale because Bank of America (BOA) assigned the involved judgment to Bayview Loan Servicing LLC (Bayview).  Bayview appears to be an essential party to this case and likely the only proper plaintiff.  Questions also remain as to how, if Bayview owns the judgment, BOA can assign the proceeds of sale to the Federal Home Loan Mortgage Corporation.  REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.  Opinion from the Court of Civil Appeals, Division II, by THORNBRUGH, J.; WISEMAN, P.J., and BARNES, J., concur.  September 23, 2021

119,063 — The Key Finance, Inc., Plaintiff/Appellee, vs. DJ Koon, Defendant/ Appellant.  Appeal from an order of the District Court of Oklahoma County, Hon. Susan Stallings, Trial Judge, denying Defendant Koon’s “Motion to Lift Stay and Modify and/or Vacate Arbitrator’s Award on Attorney Fees.”  The question here is whether it was trial court error to refuse to vacate the Arbitrator’s denial of Koon’s request for attorney fees although he was the prevailing party on The Key Finance, Inc.’s contract claim.  We must consider the holding of Midwest Livestock Systems, Inc. v. Lashley, 1998 OK 68, 967 P.2d 1197, and in doing so, we conclude that this holding dictates that when the Arbitrator failed to award attorney fees to the prevailing party pursuant to 12 O.S. § 936, we must reverse and remand the issue to the district court to determine and award reasonable attorney fees to Koon relating to his defense of Key’s breach of contract claim.  Further, because the Arbitrator did not specifically find that Key prevailed on a claim for which there is a statutory mandate for attorney fees and Key did not seek review of the Arbitrator’s order in this respect, the trial court may not consider the denial of Key’s request for attorney fees.  However, the fee award to Koon must be limited to those attorney fees and costs incurred in defending against Key’s claim to a deficiency judgment arising from the contract in question and in Koon’s pursuing his claim for rescission of that contract.  We reverse the trial court’s decision not to lift the stay and vacate the portion of the Arbitrator’s award denying Koon’s request for attorney fees as the prevailing party in the contract action.  We vacate that portion of the Arbitrator’s decision and remand for the trial court to determine the reasonable amount of attorney fees and costs pursuant to § 936 to which Koon is entitled consistent with this Opinion.  REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.  Opinion from the Court of Civil Appeals, Division II, by WISEMAN, P.J.; BARNES, J., concurs, and BLACKWELL, J., dissents.  September 29, 2021

Division III

119,064  –  Pridex Construction, LLC, An Oklahoma Limited Liability Company, Plaintiff/Appellant, v. Alan Dale Beck, Debra Ellis a/k/a Debbie Beck, Defendants/Appellees and Wells Fargo Bank, Defendant. Appeal from the District Court of Beckham County, Oklahoma.  Honorable Michelle Kirby Roper, Trial Judge. Plaintiff/Appellant Pridex Construction, LLC appeals from an award of attorney fees in its favor, asserting that the amount was too low and should be modified.  Following a jury trial wherein the jury found for Pridex on its breach of contract claim and for Defendants/Appellees Alan Dale and Debbie Beck on their counterclaim, both parties sought prevailing party attorney fees.  After considering the facts of the case, the jury’s verdict, and relevant case law, the trial court determined that a substantial reduction in fees was warranted for Pridex because of the apportionment of time between the instant case and a related criminal matter, and that no fees would be awarded to the Becks because their verdict was nominal.  We AFFIRM. Opinion by SWINTON, C.J.; PEMBERTON, P.J., and BELL, J., concur.  September 22, 2021 

119,129  –  Falconhead Condominium Association, Inc., Plaintiff/Appellant, v. 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. We AFFIRM. Opinion by PEMBERTON, P.J.; SWINTON, C.J., and BELL, J., concur.  September 22, 2021 

118,451  –  CTR Construction Services, LLC, an Oklahoma Limited Liability Company, Plaintiff/Appellee, v. Threasa Ann Martin, Defendant/Appellant and Leon Martin; Steven Leon Martin, individually and as Trustee of the Leon Martin Revocable Trust; Sherri Lee Spurlock; and The Unknown Heirs, Successors, and Assigns of Leon Martin, Defendants. Appeal from the District Court of Oklahoma County, Oklahoma.  Honorable Geary L. Walke, Trial Judge. Defendant/Appellant Threasa Ann Martin appeals from the trial court’s order denying Martin’s motion to dismiss the supplement to amended petition filed by Plaintiff/Appellee CTR Construction Services, LLC.  Martin contracted with CTR for plumbing work.  After Martin failed to pay, CTR filed suit for breach of contract and foreclosure of a mechanic’s lien. Martin failed to answer and CTR obtained default judgment against her.  CTR later sought to supplement its amended petition to add claims against the record owners of the property where CTR provided services. Martin appeared to seek dismissal of CTR’s supplement to its amended petition.  On de novo review, we find no error and AFFIRM. Opinion by SWINTON, C.J.; PEMBERTON, P.J., and BELL, J., concur.  September 22, 2021 

117,532  –  Laclaudia Samuels, Plaintiff/Counter-Defendant/Appellee, v. Raphael T. Glapion and Raphael T. Glapion, P.C., Defendants/Counter-Claimants/Third-Party Plaintiffs/Appellants, v. West Ylla Gosney, Robert Ylla, Sabre Weathers, Third-Party Defendants. Appeal from the District Court of Oklahoma County, Oklahoma.  Honorable Don Andrews, Trial Judge. Defendants/Counter-Claimants/Third-Party Plaintiffs/Appellants Raphael T. Glapion and Raphael T. Glapion, P.C., (collectively, “Lawyer”) appeal from judgment entered following a bench trial of Plaintiff/Counter-Defendant/Appellee LaClaudia Samuels’s (“Client”) legal malpractice claims. Lawyer and Client entered a contingency fee agreement under which he represented her in seeking damages for injuries she suffered in a car accident involving a drunk driver. Lawyer obtained insurance proceeds and then withdrew from representing Client before filing dram shop or products liability claims. The trial court found Lawyer breached his fiduciary duty to Client and breached his duty of care, which caused Client to lose her opportunity to sue two additional tortfeasors. The trial court additionally found Lawyer was liable for conversion of Client’s funds when he took a contingent fee out of her underinsured motorist proceeds in the absence of a contractual agreement covering Client’s insurance.  The trial court awarded damages of $831,478.47, representing unpaid medical expenses, converted UIM benefits plus interest, and $400,000 each for the lost dram shop claim and lost product liability claim.  Competent evidence supports the trial court’s judgment in favor of Client. However, Client failed to present expert medical testimony to prove her subjective future medical expenses and the Journal Entry fails to identify how the trial court determined Client’s damages for the lost dram show and products liability claims. We therefore reverse that part of the judgment and remand with directions to enter findings of fact showing how the trial court arrived at its award of $400,000 damages for each of those claims.  Opinion by SWINTON, C.J.; PEMBERTON, P.J., and BELL, J., concur.  September 28, 2021

Division IV

118,879 — Ryan Underwood, Plaintiff/Appellant, vs. Compsource Mutual Insurance Company, Intervenor/Appellee, and Carolyn Auten, Defendant.  Appeal from the District Court of Tulsa County, Honorable William LaFortune, Trial Judge.  Ryan Underwood (Underwood) appeals a journal entry granting CompSource Mutual Insurance Company’s (CompSource) Motion to Enforce Workers’ Compensation Lien and denying his Motion to Enforce Attorney’s Lien.  Underwood asserts the trial court erred in its interpretation and application of 85A O.S. Supp. 2014, § 43.  Underwood contends the court erred by not deducting a portion of the fees and costs of collection from CompSource’s first lien.  We find based on the unambiguous language of § 43, an employer or insurer is not required to pay a proportionate share of the expenses and fees an employee incurs in effecting recovery against a third-party tortfeasor.  Rather, the Legislature set forth a specific formula to be applied to determine an employer or carrier’s first lien on any recovery an employee or dependent receives from a third-party tortfeasor.  Accordingly, we conclude the Legislature intended to change existing law when it adopted § 43.  The trial court’s judgment granting CompSource’s Motion to Enforce Workers’ Compensation Lien and denying Underwood’s Motion to Enforce Attorney’s Lien is therefore affirmed.  AFFIRMED.  Opinion from Court of Civil Appeals, Division IV, by HIXON, P.J.; FISCHER, V.C.J., and RAPP, J., concur.  September 22, 2021 

119,225 – Warren G. Low; Mike and Tommi Sue Fisher; Jeffery and Peggy Kelly; Dr. James Brown; Terry and Mollie Miller; James and Susan Gill; Brenda Gatto; and Ryan Bloom, Protestants/Appellants, vs. The Corporation Commission of the State of Oklahoma; and YDF, Inc., Applicants/Appellees.  The protestants, Warren G. Low, Mike and Tommi Sue Fisher, Jeffery and Peggy Kelly, Dr. James Brown, Terry and Mollie Miller, James and Susan Gill, Brenda Gatto, and Ryan Bloom (Homeowners), appeal an Interim Order of the Oklahoma Corporation Commission (Commission) which permits the applicant YDF, Inc, (YDF) to operate a saltwater disposal well on conditions stated in the Interim Order.  The Interim Order further conditions the commencement of the well operation on the performance and evaluation of specified testing.  YDF applied to the Commission for administrative approval of two saltwater disposal wells to be placed in operation after reworking two plugged wells.  The Commission assigned two Cause numbers to the application.  The wells are in close proximity to each other in the same quarter section, otherwise the facts and issues are the same in each Cause.  On this date, this Court has decided the companion appeal, Low v. Oklahoma Corporation Commission, Case No. 119,224.  This Court affirmed Commission’s Interim Order in that appeal.  Case No. 119,224 is identical to this cause as to Interim Order provisions, issues on appeal and the Record with the exception that this Case No. 119,225 involves SWD 1, a separate saltwater disposal well.  Therefore, Low v. Oklahoma Corporation Commission, Appeal 119,225 is affirmed pursuant to Okla.Sup.Ct.R. 1.201, 12 O.S.2011, Ch.15, app. 1.  AFFIRMED.  Opinion from Court of Civil Appeals, Division IV, by RAPP, J.; FISCHER, V.C.J., and HIXON, P.J., concur.  September 23, 2021

119,224 – Warren G. Low; Mike and Tommi Sue Fisher; Jeffery and Peggy Kelly; Dr. James Brown; Terry and Mollie Miller; James and Susan Gill; Brenda Gatto; and Ryan Bloom, Protestants/Appellants, vs. The Corporation Commission of the State of Oklahoma and YDF, Inc., Applicants/Appellees.  Appeal from the Oklahoma Corporation Commission.  The protestants, Warren G. Low, Mike and Tommi Sue Fisher, Jeffery and Peggy Kelly, Dr. James Brown, Terry and Mollie Miller, James and Susan Gill, Brenda Gatto, and Ryan Bloom (Homeowners), appeal an Interim Order of the Oklahoma Corporation Commission (Commission) which permits the applicant YDF, Inc. (YDF) to operate a saltwater disposal well on conditions stated in the Interim Order.  The Interim Order further conditions the commencement of the well operation on the performance and evaluation of specified testing.  The Interim Order appealed by Homeowners is supported by substantial evidence and its provisions are within the discretion of the Commission.  The Court is confident that the Commission will require thorough and accurate testing as required by its Interim Order as affirmed and that saltwater disposal wells will not be permitted which do not conform to applicable statutes and Commission Rules.  AFFIRMED.  Opinion from Court of Civil Appeals, Division IV, by RAPP, J.; FISCHER, V.C.J., and HIXON, P.J., concur.  September 23, 2021

118,769 (Consolidated with Case Nos. 118,978 and 119,046) — Darrel Johnson, Petitioner/Appellee, vs. Robyn Johnson, Respondent/Appellant.  Appeal from the District Court of Oklahoma County, Honorable Sheila D. Stinson, Trial Judge.  Robyn Johnson (Wife) appeals from the trial court’s Decree of Dissolution of Marriage and an Order denying her application for an attorney’s fee and costs.  Darrel Johnson (Husband) counter-appeals from the decree and an Order denying his application for fees and costs.  Based on our review of the record and applicable law, we affirm the decree to the extent the trial court found a certain portion of the increase in value of Husband’s separate business during marriage was marital, that the Sheffield property was marital, and that Wife was not entitled to restitutionary alimony or support alimony.  However, we reverse the decree to the extent the trial court found all of the sale proceeds from the Broken Bow property were marital, and we remand for further proceedings consistent with this Opinion.  We also affirm both orders denying the parties their respective attorneys’ fees and costs.  AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS.  Opinion from Court of Civil Appeals, Division IV, by HIXON, P.J.; FISCHER, V.C.J., and RAPP, J., concur.   September 23, 2021

119,072 – Mako Resources, L.L.C., an Oklahoma Limited Liability Company, and TMN Resources, LLC, an Oklahoma Limited Liability Company, Plaintiffs/Appellees, vs. Marbet, LLC, an Oklahoma Limited Liability Company, Defendant/Appellee, vs. Richey Resources, LLC, an Oklahoma Limited Liability Company, Defendant/Appellant, and The Estate of Roley Scott Richey and Golden Trend Land & Cattle, LLC, Third-Party Defendants.  Appeal from an Order of the District Court of Logan County, Hon. Phillip C. Corley, Trial Judge.  The defendant, Richey Resources, L.L.C., appeals (1) an Amended Order granting summary judgment to the plaintiffs, Mako Resources, L.L.C. (Mako), and TMN Resources, L.L.C. (TMN); (2) an Order Granting Defendant, Marbet L.L.C.’s (Marbet), Motion for Summary Judgment, and by Amended Petition-in-Error; and (3) an Order granting Marbet’s Motion for Attorney Fees and denying Richey Resources’ Motion to Modify, Open, Correct, or Vacate Previous Orders of the Court.  This appeal proceeds under Okla.Sup.Ct.R. 1.36, 12 O.S. Supp. 2020, Ch. 15, app. 1.  Marbet retained Richey Resources as an agent.  Richey Resources’ duties as agent were to acquire oil and gas leases in two counties and arrange for division order title opinions.  The leases were acquired in the name of Richey Resources.  Marbet offered participation to Plaintiffs, and they accepted.  Then, Richey Resources’ duty was to issue assignments reflecting all parties’ interests.  All parties, including Richey Resources, conducted their affairs as if the assignments were made when, in fact, they had not been made.  The owner of Richey Resources died and his wife assumed management.  Plaintiffs and Marbet then discovered the absence of the assignments and requested them from Richey Resources, which refused, and this litigation followed.  The trial court properly granted summary judgments to Plaintiffs and Marbet because the undisputed and unrefuted evidence demonstrated that there was no substantial, material fact dispute about the business arrangement with Richey Resources, as agent, and its duties and that Plaintiffs and Marbet were entitled to assignments.  Plaintiffs and Marbet moved for attorney fees and costs.  Marbet is entitled to fees as prevailing party in Richey Resources’ claim under the Oklahoma Production Revenue Standards Act, but not under the enforcement provisions of the Discovery Code.  Plaintiffs are entitled to fees pursuant to the enforcement provision of the Discovery Code, but not under the Nonjudicial Marketable Title Procedures Act.  Richey Resources’ Motion to Correct, Open, Modify, or Vacate is moot because of the fee rulings.  Therefore, the judgments of the trial court are affirmed except for the ruling that Marbet is entitled to attorney fees pursuant to the enforcement provisions of the Discovery Code and the ruling that Plaintiffs are entitled to fees under the Nonjudicial Marketable Title Procedures Act.  These latter two rulings are vacated.  AFFIRMED IN PART, VACATED IN PART AND REMANDED FOR FURTHER PROCEEDINGS.  Opinion from Court of Civil Appeals, Division IV, by RAPP, J.; FISCHER, V.C.J., and HIXON, P.J., concur.  September 29, 2021

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