October, 1996
Alfred K. (Kent) Morlan
October, 1996
Alfred K. (Kent) Morlan
John E. Willis, Jr. and Barbara J.
Willis v. Wanda Holley
Case No. 83,839
67 O.B.J. 2924 (OK 10/05/96)
Plaintiffs filed a quite title action alleging they were entitled to an esaement by prescription claiming that use of a road for many years created a presumption that use was adverse. The Washington County District Court entered judgment for plantiffs and defendant appealed. The Court of Appeals affirmed. The Supreme Court granted certiorari and reversed because the use of the road was permission and not averse to the owner. "To acquire possession by prescription, the `possession must be open, visible, continuous, and exclusive, with a claim of ownership, such as will notify the parties seeking information upon the subject that the premises are not held in suordination to any title or claims of others, but against all titles and claimants.'" "Furthermore, the possession must be actual, notorious, and hostile. If the owner acquieses in or consents to the use of the land, then the use is not adverse and title by prescritpion cannot be acquired."
Mary Joiner , as surviving spouse
of Carlos Joiner, v. Ron M. Brown, D.C.
Case No. 87,237
67 O.B.J. 2925 (Okla. 10/05/96)
Appellant in this appeal was dismissed by the District Court of Harmon County. Brown's counsel prepared an order memorializing the Court's action and got it approved by Joiner's counsel. Brown's attorney sent the order to the court clerk who obtained the judge's signature on the order and filed it on February 7, 1996. The clerk then sent a copy to Brown's attorney but not to Joiner's on attorney who did not learn of the filing of the order until March 5, 1996. Joiner appealed the district court's order on April 4, 1996. Brown's attorney sought dismissal of the appeal because it was filed out of time. Because the order was not delivered to Joiner's attorney, the Supreme Court refused to dismiss the appeal holding that the critical notice of the appealable event occurs when the appellant's attorney receives notice of the event, i.e., filing of the order.
Park View Hospital Trust Authority
v. The State of Oklahoma
Case No. 81,539
67 O.B.J. 2927 (Okla. 10/05/96)
Re-affirmed the decision in City of Oklahoma City v. State, 918 P.2d 26 (Okla. 1995), which declared the Oklahoma Minimum Wages on Public Works Act (40 O.S. 1991 sec. 196.1) unconstitutional.
Jack Sharp, Jr., et al. v. 251st
Street Landfill, Inc.
Case No.: 83,027
67 O.B.J. 2930 (Okla. 10/05/96)
Jack Sharp and the other plaintiffs in this action sued Defendant to enjoin the construction and operation of a solid wast disposal facility (landfile) based upon anticipatory nuisance (probable pollution of ground and surface water). The District Court of Okmulgee County, Oklahoma issued a permanent injunction against Defendant. The Supreme Court affirmed the district court holding that the decision was not clearly against the weight of the evidence.
Nordam v. The Board of Review of
the Oklahoma
Employment Security Commission, et al.
Case No. 84,208
67 O.B.J. 2937 (Okla. 10/05/96)
Willa Morrison was employeed by Nordam as an insurance clerk from October, 1990 to October, 1993. During an performance review, Morrison's supervisor presented her with a written memorandum regarding her work performance. Morrison protested and declared that she did not have to take it and began to leave her supervisor's office and was fired. Morrison's application for unemployment benefits was initally denied. An Appeals Tribunal reversed the Commission's denial. The Board of Review of the Commission affirmed and Nordam appealed allegeding that Morrison had quit and was ineligible for unemployment compensation. After a hearing and reviewing the transcripts the court entered judgemtn against Nordam, finding the decision of the Board of Review was supported by the evidence. Nordam claimed that the decision to give Morrison unemployment benefits was incorrect because she quit rather than having been terminated. The Supreme Court affirmed holding that Nordam had not made sufficient showing that Morrision's conduct was sufficient to warrant denial of benefits.
Jon Justin Gray v. Midland Risk
Insurance Company
Case No. 83,320
67 O.B.J. 2939 (Okla. 10/05/96)
Jon Justin Gray, a minor, was injured in an automobile accident. The driver of the case was a non-designated driver. The uninsured motorist policy on the car contained a clause which reduced the coverage from $50,000 to $10,000. Everyone agreed that Jon Justin's injuries and damages exceeded $50,000. The only issue was whether the provision in the policy reducing the coverage when a non-designated driver was driving the case was enforceable. The Supreme Court held that the policy provision was enforceable and that on $10,000 in coverage was available to cover the boy's injuries.
First Bank of Turley v. Fidelity
and Deposit Insurance Company of Maryland
Case No. 85,735
67 O.B.J. 2941 (Okla. 10/5/96)
An insured's failure to give proper notice when demanding that an insurer defend a suit or an insured's giving of inadequate notice does not constitute actionable conduct either ex contractu or ex delicto. The omission or deficincy in notice-giving is a contractual nonperformance or misperformance of a policy condition, which the insurer may invoke as a defense if sued for bad faith by the insured. An insurer does not have a "comparative bad faith defense in a bad-faith case under Oklahoma law.
Jo Ann Hatlestad v. Petrocorp.
Incorporated
Case No. 83,947
67 O.B.J. 2947 (Okla. 10/5/96)
Vacated the Court of Appeals order which modified a Corporation Commission unitization plan and affied the original Corporation Commission order.
Frank Calvert, et al. v. Tulsa
Public Schools Independant
School District No. 1 of Tulsa County, Oklahoma
Case No.: 85,045
67 O.B.J. 2949 (Okla. 10/15/96)
Ten-year old LaQuita Calvert died of a severe asthma attack while at school. Her parents brought suit against the School District under the Governmental Tort Claims Act for her death. The School District filed a motion for summary judgement claiming that the parents were not the proper parties to bring the action, and that the Governmental Tort Claims Act required that the suit be brought by an administrator or personal representative. The District Court of Tulsa County sustained the motion and the Oklahoma Court of Appeals affirmed. The Oklahoma Supreme Court granted certiorari and reversed holding: (1) that the Calverts fall within the statutory definition of "personal representative", and were thus the proper parties to bring the action; (2) that even if they were not the proper parties, the District Court should have allowed the substitution of the Calverts are personal representatives after their appointment as such; and (3) that the Calverts substantially complied with the notice requirements of the Governmental Tort Claims Act.
Roderick L. Smith v. State of
Oklahoma
Case No.: F-94-1199
67 O.B.J. 2958 (Okl.Cr. 10/05/96)
Roderick L. Smith found guilty by an Oklahoma County of five counts of First Degree Murder and futher found that that Smith was guilty of five aggravating circumstance and sentenced him to death on all counts. Smith was accused of killing his wife, Jennifer Smith, and her four children by a prior relationship on June 28, 1993. Appellant asserted a number of different basis for his appeal inculding that the procedures utilized in Oklahoma to determine a person's competency to stand trail are less protective that those accepted as sufficient by the United States Supreme Court and therefore do not meet federal constitutional standards of due process. The Oklahoma Court of Criminal Appeals affirmed the judgment and sentence of the Oklahoma County District Court.
Mark W. Baker v. The State of
Oklahoma
Case No. O-95-734
67 O.B.J. 2968 (Okl.Cr. 10/05/96)
Mark W. Baker appealed the revocation of the remaining portion of his suspended sentence in the District Court of Payne County, Oklahoma for Burglary in the Second Degree, After Former Conviction of One Felony. He was sentenced to a term of the years, with the sentence suspended under rules and conditions of probation. On August 24,1993, the District Court foudn Appellant had violated rules and conditions of probation and revoked three years of the suspended sentence. The District Court found that Baker had violated the rules and conditions of his probation by committing the offenses of Unlawful Possession of a Controlled Dangerous Substance, Carrying a Concealed Weapon, and Public Intoxication. The District Cour revoked the remainder of Baker's suspended sentence and order his to serve seven years in prison. Baker appealed claiminng that the District Court's order revoking his suspended sentence should be vacated because the two attorneys who represented him when he received the suspended sentences also appeared for the State during the process of revoling that sentence. He also claimed the order revoking his suspended sentece should be vacated because no hearing was held within twenty days of his arrest on this charge, and because due process was violated when no preliminary hearing was held. The Oklahoma Court of Criminal Appeals reversed the revocation off Baker's suspended sentence and remanded the case for further proceedings the in the District Court.
Lori Anderson v. Oklahoma Temporary
Services, Inc., d/b/a Express Personnel Services
Case No. 87,098
67 O.B.J. 2793 (Ok.Ct.App. 10/05/96)
Lori Anderson sued her former employer, Oklahoma Temporary Services, Inc., d/b/a Express Personnel in the District Court of Kay County for damages claiming intentional infliction of emotion distress and constructive discharge. The major component of her claim related to vulgar, insensitive and annoying conduct of one of her female supervisors. Express moved for summary judgment and the District Court sustained the motion. Ms. Anderson appealed. The Court of Appeals affirmed because Ms. Anderson did not provide evidence to the District Court that the conduct she complained about was so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. Liability does not extend to "mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities." In affirming the District Court, the Court of Appeals pointed out that not every abusive outburst or offensive verbal encounter may be converted into a tort.
Special Indemnity Fund v. Virgil L.
Betterton and The Workers' Compensation Court
Case No. 87,017
67 O.B.J. 2975 (Ok.Ct.App. 10/05/96)
The question in this case was whether the Special Indemnity Fund can be required to pay a worker who has sustained numerous work related injuries permanent total disability more than once. The Court pointed out that indeed, under Oklahoma law, it is possible for a claimant to be permanently totally disabled more than once if more than one injury is involved. The crucial time for determining a Claimant's condition in a case against the Fund is at the time of the last, i.e., most recent injury.
Liberty Bank & Trust Company of
Tulsa, N.A. v. Ted Murray, et al.
Case No.: 85,230
67 O.B.J. 2979 (Ok.Ct.App. 10/05/96)
Liberty brought an interpleader action against defendants to determine the rightful owner of funds from the redemption of a bond registered in joint tenancy. Defendant Murray denied donative intent in placing another personal name on the bond in question. Murray had put his secretary's name on a bond in other to avoid exceeding the FDIC insurance limit. When the bond was called, Murray asked his secretary to endorse the bond so that he could cash the bond but she refused. Liberty filed the action seeking a court determination of to whom it should pay the money. The secretary claimed that she was the recipeint of a gift interest in the bond. The District Court of Tulsa County found that Murrary was the owner of the bond and awarded attorney fees to Liberty but denied Murrary attorney fees against the secretary. Murray appealed. Oklahoma courts may normally only award attorney fees to a prevailing party when empowered to do so by contract or statute. Because there was not statute authorizing the award of attorney fees to Murray against the secretary, the District Court was correct in denying Murrary attorney fees against the secretary.
Wanda Baker v. Lawrence Baker
Case No.: 86,186
67 O.B.J. 2988 (Ok.Ct.App. 10/05/96)
Social security payments paid directly to minor children as a result of their father's past employment suffice as child rupport when they are equal to the father's support obligations.
Dan Cantrell v. United States
Soccer Federation, et al.
Case No.: 86,367
67 O.B.J. 2988 (Ok.Ct.App. 10/05/96)
The provisions of Title 36 U.S.C. sec. 391 generally prevent an amateur coach who has been suspended for alleged improper behavior from bringing a state court action for breach of contract or tortious interference with his rights.
Evelyn Kluver v. City of Hinton,
Oklahoma
Case No.: 86,996
67 O.B.J. 2990 (Ok.Ct.App. 10/05/96)
Municipal governments are exempt from tort liability for claims resulting from naturally occurring snow or ice in a public place under the provisions of 51 O.S. sec. 155(8).
Lois Phelps and Harvey Phelps v.
Hotel Management, Inc. d/b/a Seasons Inn, or All Season's Inn
Case No.: 86,683
67 O.B.J. 3045 (Ok.Ct.App. 10/12/96)
Whether a glass bowl which protruded into a seating area and which harmed Lois Phelps was an open and obvious danger was a question of fact and summary judgment should not have been sustained by the District Court of Oklahoma County.
DPW Employees Credit Union v.
Tinker Federal Credit Union and David Sisco
Case No.: 85,805
67 O.B.J. 3045 (Ok.Ct.App. 10/12/96)
Filing of bankruptcy petition by debtor stays enforcement of a granishment summons issued and served before the bankruptcy.
Farmers Insurance Comapny, Inc. v.
Estate of Cecil Clifton Stark and Shelter Mutual Insurance
Company
Case No. 86,368
67 O.B.J. 3057 (Ok.Ct.App. 10/12/96)
Statute of limitation applicable to an uninsured motorist insurance company's action against a tort-feaor for payment made pursuant to 36 O.S. 1991 sec. 3636(E)(2) is two years under 12 O.S. 1991 sec. 95 (Third).
Gilliam Y. Parris, et al. v. Andy
Flinn and Evelyn Keith
Case No.: 87,375
67 O.B.J. 3061 (Ok.Ct.App. 10/12/96)
Removal of axels and addition of improvements does not convert a mobile home into a non-restricted permanent residential structure exempt from a restrictive convenant prohibiting mobile homes in a subdivision plat. Also, one acknowledged violation of an anti-moible home covenant in a subdivision plat is not sufficient to establish a pattern of habitual or continuous violations necessary to find abandonment of a convenant.