Courts and More Vol. 1 | No. 35 | September 1, 2021

Oklahoma Court of Civil Appeals

Division I

118,265  –  In Re The Marriage of: Kelly Garcia, Petitioner/Appellee, v. Jeffrey Garcia, Respondent/Appellant.  Appeal from the District Court of Tulsa County, Oklahoma.  Honorable Tammy Bruce, Judge.  Jeffrey Garcia, Respondent/Appellant, appeals the court’s orders enforcing a settlement agreement and granting a motion to modify child support in favor of Kelly Garcia, Petitioner/Appellee.  Held:  Property division judgments are not subject to modification absent fraud. Clifton v. Clifton, 1990 OK 88, ¶1, 801 P.2d 693, 694.  Husband’s timely installment payment of ad valorem tax pursuant to 68 O.S. §2913  was in accordance with the parties’ agreement that taxes be “current.”  Title 43 O.S. §114 applies only to past-due child support payments.  Parenting time adjustment is not mandatory but presumptive. 43 O.S. Supp. 2016 §118E.  Capital gains are considered income for child support computation. In re Children of Knight v. Lincoln, 2014 OK CIV APP 2, ¶12, 317 P.3d 210, 214.  Depreciation is not an allowable expense in calculating income. §118B(E)(2).  Affirmed in Part, Reversed in Part, and Remanded.  Opinion by GOREE, P.J.; MITCHELL, J., and PRINCE, J., concur.  August 27, 2021

119,102  –  ONB Bank & Trust Company, Plaintiff, v. Infrastructure, Inc., an Oklahoma Corporation; Gregory Allen Albert, individually, and Jane Doe, his unknown spouse, if any; Michelle Lorene Albert; Occupants of the premises; Richard A. Harris and Linda R. Harris, husband and wife; GE Capital Mortgage Services, Inc.; Loans at Wholesale, LLC; GMAC Bank; Wells Fargo Bank; United States Department of the Treasury ex rel. Internal Revenue Service; City of Tulsa, Oklahoma, Defendants, and Mid-Continent Casualty Company, Defendant/Appellant, and GMAC Mortgage, LLC, Plaintiff/Appellee, Green Tree Servicing LLC, Substitute Plaintiff/Appellee, v. Gregory Allen AKA Gregory Allen Albert; Unknown Spouse, if any, of Gregory Allen AKA Gregory Allen Albert; Michelle Lorene Albert; Unknown Spouse, if any, of Michelle Lorene Albert; Richard A. Harris; Linda R. Harris; ONB Bank & Trust Company, Unknown Tenant, if any, of 4526 East 85th Street, Tulsa, Oklahoma 74137, Defendants, Appeal from the District Court of Tulsa County, Oklahoma.  Honorable Daman Cantrell, Trial Judge. Appellant Mid-Continent Casualty Company (“MCCC”) , a lienholder second in priority only to Appellee GMAC Mortgage, LLC (“GMAC”), appeals the trial court’s September 15, 2020 Order Confirming [Sheriff’s] Sale of certain real property in favor of GMAC.  MCCC contends that the trial court confirmed the sheriff’s sale without regard to what was right and equitable given the circumstances, arguing an abused discretion.  Because this Court agrees with MCCC, this case is reversed and remanded for further proceedings consistent with this Opinion.  Opinion by PRINCE, J.; GOREE, P.J., and MITCHELL, J., concur.  August 27, 2021

119,269  –  Michael Pugliese, Plaintiff/Appellee v. State of Oklahoma, ex rel. Department of Public Safety, Defendant/Appellant.  Appeal from the District Court of Tulsa County, Oklahoma.  Honorable David Guten, Judge.                  State of Oklahoma, ex rel. Department of Public Safety (DPS) appeals from a trial court order setting aside the driver’s license revocation of Plaintiff/Appellee Michael Pugliese (Pugliese).  The Tulsa County District Court set aside the revocation on the ground that Pugliese’s breath test result was not admissible because the disposable mouthpiece utilized in his test had not been approved by the Board of Tests for Alcohol and Drug Influence (BOT).  After de novo review, we REVERSE AND REMAND for further proceedings.  Opinion by MITCHELL, J.; GOREE, P.J., and PRINCE, J., concur.  August 27, 2021

119,316  –  In The Matter of the Adoption of: L.B.L., Minor Child, Sara Pollard, Respondent/Appellant, v. Grant Lloyd and Kalan Lloyd, Petitioners/Appellees.  Appeal from the District Court of Cherokee County, Oklahoma.  Honorable Josh King, Judge.  Sara Pollard, Appellant, appeals the district court’s order granting the application of Grant and Kalan Lloyd, Appellees, and determining her child is eligible for adoption without her consent.  We reverse because the evidence was not clear and convincing that she willfully neglected to contribute support for the statutory time period.  Furthermore, she presented a valid defense that she was denied the opportunity to establish a substantial and positive relationship with her child.  REVERSED.  Opinion by GOREE, P.J.; MITCHELL, J., and PRINCE, J., concur.  August 27, 2021

Division II

118,645 – In re Marriage of: Buddy Leroy Scarberry, Petitioner/Appellant, v. Mary Scarberry, Respondent/Appellee.  Appeal from the District Court of Pottawatomie County, Hon. Emily J. Mueller, Trial Judge.  Buddy Leroy Scarberry (Husband) appeals from the Decree of Dissolution of Marriage (Decree) filed in January 2020.  We reject Husband’s challenge to the trial court’s award to Mary Scarberry (Wife) of $258,472, which the court awarded for the difference between the parties’ respective property award.  We also reject Husband’s contention that the entire award to Wife from the lost earnings portion of an award to Husband in a tort action must be vacated.  However, we agree with Husband’s alternative argument that the trial court erred in its calculation of this award, and that the calculation must be based on the proceeds actually recovered by Husband in the tort action.  Accordingly, we vacate the trial court’s award to Wife from the lost earnings portion of that award, and remand this case to the trial court with instructions to recalculate an equitable award based on Husband’s actual recovery, in a manner consistent with this Court’s Opinion.  VACATED IN PART AND REMANDED WITH INSTRUCTIONS.  Opinion from Court of Civil Appeals, Division II, by BARNES, J.; WISEMAN, P.J., and RAPP, J. (sitting by designation), concur.  August 27, 2021

119,182 — CBP Partners, LLC, Plaintiff/Appellee, vs. Robert Folsom and Bekki Liles, dba OG Organics, Defendants/Appellants.  Appeal from orders of the District Court of Oklahoma County, Hon. Susan Stallings, Trial Judge, which
(1) granted judgment to CBP Partners, Inc., in this forcible entry and detainer action and (2) denied Defendants’ motion to vacate.  OG asserts the trial court abused its discretion in denying OG’s motion to stay execution of the order of possession because the trial court found OG “failed to cure the default pursuant to 12 OS §1148.10B and failed to appeal pursuant to 12 OS §1148.10A.”  OG states it attempted to comply with 12 O.S. § 1148.10B and filed a motion to vacate and stay the execution within 72 hours of CBP filing its writ of assistance.  OG argues it had a good faith belief that it was allowed to forego paying rent because CBP failed to provide electrical services.  OG contends the trial court abused its discretion in denying its motion to stay on the ground that OG failed to comply with these statutes.  We conclude that OG has not shown that it met the requirements of 12 O.S.2011 § 1148.10B(A).  The record lacks any showing that OG met the requirement to provide written notice within ten days from the date its rent became due.  To the contrary, the trial court found there was no communication between OG and CBP for several months.  Based on our review, we see no abuse of discretion in the trial court’s failure to provide a judgment amount so that OG could cure the default.  OG also urges reversal for trial court error in denying its motion to vacate and affirming the order of possession.  OG challenges the trial court’s factual findings, in particular, its finding that OG’s electrical contractor cut the 125-amp service and that CBP reasonably believed that OG was carrying out its plan to install 400-amp service.  The parties presented conflicting evidence as to whether OG’s electrical contractor cut the 125-amp service to install 400-amp service.  The trial court decided that OG’s electrical contractor, not CBP, cut the 125-amp service causing the lack of electricity.  OG’s presentation of evidence divergent to CBP’s does not dictate that the trial court must find in OG’s favor.  Because there is sufficient record evidence to support the trial court’s decision in CBP’s favor on the question of whether it failed to provide electricity to OG and to support the court’s subsequent decision granting CBP possession of the Leased Premises, we can see no abuse of discretion in declining to vacate that decision.  Finding no abuse of discretion, we affirm the trial court’s forcible entry and detainer judgment and its order denying OG’s motion to vacate.  AFFIRMED.  Opinion from the Court of Civil Appeals, Division II, by WISEMAN, P.J.; BARNES, J., and BLACKWELL, J., concur.

August 31, 2021

Division III

119,286  –  Harry Kent Moore, Plaintiff/Appellant, v. State of Oklahoma, ex rel., Oklahoma Department of Public Safety, Respondent/Appellee.  Appeal from the District Court of Marshall County, Oklahoma.  Honorable Wallace Coppedge, Trial Judge.  Harry Kent Moore (Moore) seeks review of a district court order upholding the Department of Public Safety’s (DPS) revocation of Moore’s driver’s license in 2018 for having been in actual physical control of a motor vehicle while intoxicated in May 2010. We reverse the order and revocation because, under 47 O.S. § 753 and related jurisprudence and analysis, DPS was never vested with jurisdiction to revoke Moore’s license, given the arresting officer’s failure to include in his sworn affidavit the requisite statement that he had reasonable grounds to believe Moore had been driving or was in actual physical control of a motor vehicle while under the influence of an intoxicating substance. Opinion by PEMBERTON, P.J.; SWINTON, C.J., and BELL, J., concur. August 26, 2021

 119,322  –  Ryan Schoolfield, Individually, and as Parent and Next Friend of G.S., a minor, Plaintiff/Appellant, v. George May, as Parent, Court-Appointed Guardian, and Next Friend of A.M., a minor, Defendant, and Independent School District No. 4 of Tulsa County, Oklahoma, commonly known as Bixby Public Schools, Defendant/Appellee. Appeal from the District Court of Tulsa County, Oklahoma.  Honorable Daman H. Cantrell, Trial Judge. Plaintiff/Appellant Ryan Schoolfield, individually and as parent and next of friend of G.S., appeals from summary judgment granted to Defendant/Appellee Independent School District No. 4 of Tulsa County (District). Schoolfield asserted G.S. suffered an injury at school when another student, A.M., threw a pencil, and the injury was caused by District’s negligent supervision of its students. Schoolfield asserted negligence claims against District and Defendant George May, as parent and next of friend of A.M. The undisputed material facts show District was immune from liability for its discretionary supervision policy, and even if not, District’s action was not the proximate cause of Schoolfield’s harm because A.M.’s action was a supervening cause of the injury. District was therefore entitled to judgment as a matter of law. We AFFIRM. Opinion by SWINTON, C.J.; PEMBERTON, P.J., and BELL, J., concur. August 26, 2021

Division IV

118,533 – (Companion with Case No. 118,534) – Josh Glancy, an individual, Plaintiff/Appellant, vs. Circle 9 Resources, an Oklahoma limited liability company; Jay Northam Whipple IV, an individual; and Circle 9 Non-Operated Working Interest Fund I LP, an Oklahoma limited partnership, Defendants/Appellees.  Appeal from Order of the District Court of Oklahoma County, Hon. Don Andrews, Trial Judge.  Plaintiff Josh Glancy appeals the district court’s order dismissing with prejudice all claims in his amended petition against defendant Circle Nine Non-Operated Working Interest Fund I LP (Fund).  The appeal has been assigned to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36, 12 O.S. Supp. 2013, ch. 15, app. 1, and the matter stands submitted without appellate briefing.  Glancy’s November 2018 amended petition did not relate back to his original August 2016 petition and save his time-barred claims against the Fund.  The record does not demonstrate that Glancy made the type of “mistake concerning identity of the proper party” contemplated by 12 O.S.2011 § 2015(C)(3)(b), such that the Fund should have known that Glancy’s failure to name it as a defendant was due to that mistake.  Therefore, the district court did not err in dismissing Glancy’s claims against the Fund, and we affirm the district court’s judgment in favor of the Fund.  AFFIRMED.  Opinion from Court of Civil Appeals, Division IV by FISCHER, V.C.J.; HIXON, P.J., and RAPP, J., concur.  August 27, 2021

118,534 – (Companion with Case No. 118,533) – Josh Glancy, an individual, Plaintiff/Appellant, vs. Circle 9 Resources, an Oklahoma limited liability company; Jay Northam Whipple IV, an individual; and Circle 9 Non-Operated Working Interest Fund I LP, an Oklahoma limited partnership, Defendants/Appellees.  Appeal from Order of the District Court of Oklahoma County, Hon. Don Andrews, Trial Judge.  Plaintiff Josh Glancy appeals the district court’s order granting summary judgment in favor of Defendants Circle 9 Resources, LLC (Circle 9) and its sole owner Jay Northam Whipple IV (Whipple) in Plaintiff’s action alleging claims for fraudulent inducement and unjust enrichment/quantum meruit.  Glancy’s claims were based on allegations that Whipple and Circle 9 fraudulently induced him to leave his position as a senior reservoir engineer with another company and join Circle 9 by offering him an employment compensation package worth millions of dollars.  Most of that amount consisted of an alleged “promised” and “pledged” initial equity stake in Circle 9, worth over $2.3 million “in three (3) years,” which he alleged was set forth in a document entitled “Framework for Josh Glancy Compensation.”  Glancy alleged that Defendants terminated his employment and failed to pay him the accumulated amount of initial equity he earned during the 6-month period he worked for Circle 9.  He sought a monetary recovery from Defendants based on fraudulent inducement and unjust enrichment, which are quasi-contract theories.  Glancy’s stated beliefs regarding the Framework do not support his fraudulent inducement claim.  Glancy’s renaming of the Framework as a “Compensation Agreement” and his interpretation of the Framework as providing promised, assured or finalized terms of an employment compensation agreement are not supported by any reasonable interpretation of the document and require us to ignore the contradictory language on the document’s face.  Glancy’s unjust enrichment/quantum meruit claim incorporated the allegations of his fraudulent inducement claim.  There is nothing in the record showing that Glancy conferred an uncompensated benefit on Defendants.  The record does not support a claim for unjust enrichment or that Defendants fraudulently deprived Glancy of any promised or assured benefit.  The district court properly determined that no genuine issues of material fact existed regarding Glancy’s claims.  AFFIRMED.  Opinion from Court of Civil Appeals, Division IV by FISCHER, V.C.J.; HIXON, P.J., and RAPP, J., concur.  August 27, 2021

---

Return To: