John Fischer

This case involved a law firm's attempt to collect on a default judgment for unpaid attorney fees through garnishment proceedings against Biscuit Hill Shell Foodmart, the employer of the judgment debtor. The district court entered a default judgment against the garnishee for failing to respond to the garnishment summons. On appeal, the Oklahoma Court of Civil Appeals reversed the denial of the garnishee's motion to vacate, holding that the summons had been served more than 180 days after issuance without a determination of good cause for the delay, which could affect the court's personal jurisdiction over the garnishee. The court remanded for further proceedings to determine whether good cause existed for the untimely service.

procedure

This case concerned the termination of parental rights of a mother to her two infant children, both members of the Cherokee Nation, after the children were adjudicated deprived due to the mother's substance abuse, prescription medication issues, and failure to provide proper care. Following notice and participation by the Cherokee Nation, a jury found that the mother had not corrected the conditions leading to the adjudication and had failed to pay required child support for at least six of the prior twelve months, leading the district court to enter judgment terminating her rights. On appeal, the court examined the sufficiency of the evidence under state standards requiring clear and convincing proof for termination grounds and the higher beyond-a-reasonable-doubt standard mandated by the federal and Oklahoma Indian Child Welfare Acts for findings that continued custody would likely cause serious harm to the children, including review of the state's active efforts at reunification and compliance with jury instructions on burdens of proof.

family lawfederal power

This case concerned a real estate broker's claim for a deferred portion of its commission following the sale of an apartment complex. Ferguson Advisors served as broker for Malherbe's sale to O'Malley's Property Management, earning a 5% commission, but agreed in writing at closing to delay payment of $13,755.82 until the buyer repaid the $825,000 seller-financed balance in full. After the buyer defaulted and deeded the property back to Malherbe in lieu of foreclosure, Ferguson sued for the unpaid amount, and the district court granted summary judgment to Ferguson. The appellate court reversed, concluding that the deferral language created a condition precedent requiring full repayment by the buyer, which had not occurred, so Ferguson had not established entitlement to judgment as a matter of law. The matter was remanded for further proceedings to interpret the contract and resolve any ambiguities.

business & regulatorypropertyprocedure

This case involved a dispute over insurance coverage under commercial general liability policies issued to a building contractor. The owners of a commercial property sued the contractor for breach of warranty and negligence after water intrusion, mold, and related damage occurred due to construction defects involving an exterior insulating finishing system (EIFS), improper brick ledge slope, and deteriorated caulking. The insurer filed a declaratory judgment action seeking a ruling that the policies provided no coverage and that it had no duty to defend or indemnify the contractor. The district court granted summary judgment to the insurer, and the appellate court affirmed, holding that the policies' EIFS exclusion applied to bar coverage because the damage was caused by factors including the EIFS system, making other potential causes or doctrines like efficient proximate cause irrelevant. The court did not reach issues such as whether the damage constituted an occurrence under the policies or the applicability of other exclusions.

business & regulatorypropertytorts & liability

This case involves a judgment creditor's repeated attempts to collect on a judgment by garnishing assets held in a trust for the debtor, including multiple garnishment proceedings and a later motion to levy and execute on the trust assets to satisfy the judgment. The appellate court affirmed the district court's denial of the motion to allow levy and execution against the trust as well as its award of attorney fees to the garnishee trustee. The core reasoning was that the creditor's substantive claims were barred by issue preclusion based on prior unappealed summary judgment rulings in the garnishment actions that found the trust not liable for the debtor's obligations, and the governing statute authorized the fee award.

procedureproperty

The case involved homeowners Elton and Malissa Rhoades who sought to vacate a default judgment obtained by Northwest Roofing Supply, Inc., to enforce a materialmen's lien on their homestead after they had paid their contractor in full. Northwest had supplied materials for a home remodel but failed to provide the pre-lien notice required by 42 O.S. § 142.1 to the homeowners before furnishing materials. The district court denied the Rhoadeses' petition to vacate the judgment, which had been entered after they did not file an answer in the foreclosure suit. The Court of Civil Appeals reversed, holding that the lien was unenforceable due to the missing statutory notice and that the default judgment should therefore have been vacated, with the matter remanded for further proceedings.

propertyprocedure

This case involved a civil forfeiture proceeding in which the State sought to seize $457.02 found on Embry Jay Loftis during his arrest for drug possession under Oklahoma's Uniform Controlled Dangerous Substances Act. After Loftis failed to appear at the scheduled hearing due to a claimed medical conflict, the trial court entered a default judgment of forfeiture. Loftis later sought relief, which the court treated as a motion for new trial and denied. The appellate court reversed, holding that a default does not relieve the State of its statutory burden to prove by a preponderance of the evidence that the currency was subject to forfeiture under the Act, and remanded for further proceedings. The decision turned on the statutory requirements for forfeiture hearings rather than the dismissal of the underlying criminal charge.

criminal lawpropertyprocedure

The case involved post-divorce proceedings in which the mother sought to modify joint child custody and support and to determine outstanding support obligations, resulting in a default judgment against the father as a sanction for his attorney's failure to comply with a pretrial order. The district court terminated joint custody, awarded sole custody to the mother, modified child support by imputing an in-kind benefit to the father's income, ordered payment of arrearages and medical expenses, denied the father's motion to vacate the default, awarded attorney fees to the mother, and later denied the father's motion to modify support after job loss. On appeal, the court affirmed in part, reversed in part, and remanded, holding that default judgment was improperly entered without advance notice to the appearing party, consideration of lesser sanctions, or a hearing on the merits of the custody and support issues. The decision emphasized Oklahoma's policy disfavoring defaults, particularly in cases affecting parental rights, and required proceedings consistent with these standards.

family lawprocedure

The case involved Antonio Bryson, who was arrested and taken to the Oklahoma County jail, where a detention officer used physical force including knee strikes to subdue him after he refused orders and was verbally abusive, leading to the officer's termination. Bryson sued the County for tort claims including assault, battery, and negligence, as well as constitutional claims under the Oklahoma Constitution and the U.S. Constitution's Fourth and Eighth Amendments via 42 U.S.C. § 1983, alleging excessive force and inadequate training or policy. The district court granted summary judgment to the County on all claims. On appeal, the Court of Civil Appeals affirmed summary judgment regarding the tort claims, Eighth Amendment claims, and certain policy and training claims, primarily due to governmental immunity and lack of vicarious liability, but reversed on the Fourth Amendment § 1983 claim and the parallel state constitutional claim under Okla. Const. art. 2, § 30, finding potential issues of material fact regarding county policy or custom that required further proceedings.

civil rightstorts & liabilityprocedurecriminal law

In Breen v. Gardner, plaintiff Lawrence Breen sued defendant Courtney Gardner for negligence after their vehicles collided, seeking damages for injuries. During trial, a highway patrol trooper testified about collecting information including insurance at the accident scene, prompting Gardner to move for a mistrial on grounds that the reference to insurance prejudiced the jury. The district court denied the motion, finding no prejudice because Oklahoma's compulsory liability insurance law made such inquiries routine and the testimony did not reveal whether either party was insured or who would pay. The jury returned a $170,000 verdict for Breen, and the court also denied Gardner's motion for a new trial. On appeal, the Oklahoma Court of Civil Appeals affirmed, holding that the district court did not abuse its discretion in denying the motions given the lack of specific disclosure about insurance coverage.

torts & liabilityprocedure

The case involved borrowers Maurice and Margaret Massey who refinanced their Oklahoma City property with a loan from Interbay Funding (later acquired by Bayview Loan Servicing) that included a five-year Lockout Fee and Prepayment Consideration provisions in the promissory note. After agreeing to sell the property, the Masseys paid a $117,613.20 Lockout Fee and additional consideration under protest to obtain a mortgage release and then sued to recover the amounts, arguing the provisions were unenforceable. The trial court granted summary judgment to Bayview and Interbay and denied the Masseys' cross-motion. On appeal, the Oklahoma Court of Civil Appeals reversed, holding the provisions void under Oklahoma statutes on liquidated damages and penalties because they did not reasonably estimate anticipated loss from prepayment. The court remanded with directions to grant the Masseys' motion for summary judgment on enforceability and to determine the lender's actual damages from the breach.

propertybusiness & regulatoryprocedure

The case involved a dispute among owners of adjacent lakefront lots regarding shared ownership and use of a swimming dock constructed under a 1985 agreement, after Mitchell purchased one lot and began paying all related costs while disputing others' rights. Plaintiffs obtained a final, unappealed district court order enjoining Mitchell from interfering with their use and one-fifth ownership interests in the dock. Plaintiffs then moved for attorney fees, which the district court granted under the Nonjudicial Marketable Title Procedures Act and related statutes. The appellate court affirmed the entitlement to fees as authorized by statute but reversed the amount awarded, finding it must be reasonable and remanding for further proceedings to determine the proper sum under applicable standards.

propertyprocedure

Twin Creek Estates sued Gary and Jacquelyn Tipps to enforce restrictive covenants on their property in a real estate development, seeking to require approval of the architectural plans for their home and use of an approved builder. After the district court ordered the Tipps to submit their plans for approval, it granted Twin Creek's motion for attorney fees under the Real Estate Development Act, 60 O.S.2001 § 856. The Tipps appealed, arguing that Twin Creek was not the prevailing party because they were permitted to use their chosen builder. The appellate court affirmed the fee award, holding that Twin Creek succeeded on the plan-approval aspect of its claim and that the statute authorizes fees to the prevailing party without requiring a formal judgment or all requested relief.

property

The case involved a high school teacher and coach who sued a television station and its employees for defamation and false light invasion of privacy after a news broadcast reported that he had been accused of threatening to shoot students following a basketball game incident involving a cowbell and a referee; the broadcast also referenced recent school terrorism threats and a campus shooting. The district court granted summary judgment to the media defendants. On appeal, the Oklahoma Court of Civil Appeals affirmed in part, reversed in part, and remanded, holding that genuine issues of material fact existed regarding whether the broadcast could reasonably be interpreted as falsely portraying the plaintiff as a terrorist in a manner that invaded his privacy. The court reasoned that the statements must be viewed in context, that the plaintiff was a limited public figure requiring proof of actual malice for the privacy claim, and that the defendants had not sufficiently addressed all material facts to support summary judgment on that claim.

torts & liabilityfree speech

The case involved BNSF Railway appealing an order from the Oklahoma Corporation Commission approving the Board of County Commissioners of Tulsa County's application to open a new railroad crossing at South 49th West Avenue to facilitate an industrial park, with costs to be paid by the developer. BNSF challenged the Commission's jurisdiction under 17 O.S. § 81, claiming no established public highway existed across its tracks, and argued the crossing was unnecessary and unsafe. The court held that the Commission had jurisdiction, relying on precedent that it may authorize crossings even when highway extensions are planned or contingent on acquisition of rights-of-way, and found the order supported by substantial evidence regarding public convenience, safety, and traffic needs. The Commission, not the railroad, determines when such openings serve public interests.

business & regulatoryproperty

This case involved Brett Clymer's appeal of the forfeiture of his 1997 GMC pickup truck to Beckham County, Oklahoma. The State sought forfeiture after Clymer pled guilty to charges related to concealing and transporting stolen property, which he had taken from a barn in Texas using the truck. The district court granted the petition, and the appellate court affirmed. The court reasoned that the relevant statute, 21 O.S. § 1738, authorizes forfeiture of a vehicle used in the commission of burglary in the second degree or motor vehicle theft, and Clymer's admissions established that his truck was used for those acts even without a conviction for those specific offenses. The proceeding was an in rem civil forfeiture independent of any criminal conviction.

criminal lawproperty

The Davises sued Burggraf Restoration for breach of contract, negligence, fraud, and home repair fraud arising from fire and water damage restoration work on their home. Burggraf had previously filed two small claims actions against the Davises to collect payment for the same work, which ended in settlements and a voluntary dismissal with prejudice in the second case without any counterclaims being filed by the Davises. The district court granted judgment to Burggraf on the grounds that the claims were barred by the Small Claims Procedure Act's counterclaim rules and res judicata. The Court of Civil Appeals reversed and remanded, holding that the appellate record lacked the judgment rolls from the small claims cases, making it impossible to determine whether a final judgment existed or whether the compulsory counterclaim rule applied to bar the current claims.

procedurepropertytorts & liability

The case involved a dispute over access to property via a section line road in Oklahoma. The Mayeses sought an injunction to prevent the Williamses from blocking their use of a road abutting the Williamses' property to access the northern part of their own land, relying on a statute preserving ingress and egress rights for fee owners. The district court granted the injunction, and the appellate court affirmed, holding that the statute grants abutting owners the right to reasonable use of the section line for access without requiring proof of material dependence or lack of alternatives, as supported by prior precedents.

property

The case involved Shannon Wilson appealing the termination of her parental rights to her two minor children after they were adjudicated deprived in 2006 based on allegations of neglect, including leaving them unattended, exposure to unsafe influences, domestic violence, and inadequate supervision and support. Following a jury trial, the district court terminated her rights on findings that she had not corrected the conditions of neglect, willfully failed to contribute to the children's support, and that the children had spent fifteen of the most recent twenty-two months in foster care. The Court of Civil Appeals affirmed, holding that Wilson received proper notice of the conditions to be corrected via the treatment plan, had adequate time and opportunity to comply, was afforded due process, and that termination served the children's best interests.

family law

The case concerned a lawsuit by B.A.P., L.L.P. against Anesthesiologists of Bartlesville, P.C. (AOB) and Dr. Michael Pearman alleging fraud and abuse of confidence in the handling of partnership funds, seeking damages and other relief. Defendants moved to compel arbitration under a clause in the BAP Partnership Agreement, which the district court denied on grounds that the clause applied only to disputes among partners, that AOB and Dr. Pearman lacked standing to enforce it, and that mediation preconditions had not been met. The Court of Civil Appeals reversed and remanded, directing an evidentiary hearing to determine the parties' intent regarding the arbitration clause's scope and applicability to the manager and its agent, applying de novo review and principles favoring arbitration under state contract law.

business & regulatoryprocedure