No per Diem for Sun Ridge Landlord

Article excerpt

Following are 10th Circuit and local opinions filed recently. Oklahoma Supreme Court

For the week ending March 17, 1998 Sun Ridge Investors, Ltd. d/b/a Sun Ridge Apts. vs. Richard Parker, et al., No. 86,074. Landlord's per diem late charge was not enforceable because it violated 15 O.S. 1991, section 213, was usurious, and was an unenforceable penalty prohibited by North American Investment Co. vs. Lawson, 854 P.2d 384. Per diem charges are allowable as liquidated damages, but not as penalty for breach of lease. Robert M. Hoover, Jr. vs. Kiowa Tribe of Oklahoma, No. 87,139. Economic activity within state by federally recognized Indian tribe residing within state is subject to suit in state court on same terms as any other person. Tribe's contention that it retains sovereign immunity when it ventures anywhere in state and enters into contractual relationship is inconsistent with Oklahoma's historical relationship with Indian tribes located in Oklahoma. Accordingly, no injustice has been done by court's decision in Hoover vs. Kiowa Tribe of Okla., 909 P.2d 59. Dissent states that this case revolves around issue of waiver of sovereign immunity. Tribe did not clearly waive its sovereign immunity. Oklahoma has not met congressionally imposed conditions necessary to assume civil and criminal jurisdiction over Indian tribes and nations. Evidence does not support finding that Indian sovereignty in Oklahoma has been "diminished." Dissent states that court continues to misperceive status of tribal sovereign immunity in Oklahoma. Even if majority is correct, court should use restraint and defer its decision until U.S. Supreme Court has spoken. The very issue, with the very same tribe, is presently before that court. Mary Ellen Hulett vs. First Nat'l Bank and Trust Co. in Clinton, et al., No. 87,868. Oklahoma slayer statute, 84 O.S. Supp. 1994, section 231, which prevents persons convicted of murdering victim to inherit from victim, provides only that any benefit that would accrue to slayer upon death of his victim shall be distributed to other heirs of victim by laws of descent and distribution. It does not apply to murderer's conditional trust share because no part of it accrued to him upon victim's death. Also, summary judgment in favor of appellee was error. If appellant is, in fact, murderer's son (and victim's grandson), he is entitled to share in estate of victim as heir under will. Oklahoma Court of Civil Appeals For the week ending March 17, 1998 Oklahoma Sports Properties, Inc. vs. Indep. School Dist. #11 of Tulsa Cty., No. 88,408. Oklahoma independent school districts have implied power to charge and collect broadcast rights fees as incidental to powers expressly granted by statute. L. Nan Lockhart vs. Teachers' Retirement Sys. of Oklahoma, No. 89,122. In earlier proceeding, Board of Trustees of Oklahoma Teachers' Retirement System (OTRS) found that doctrine of equitable estoppel did not prevent it from decreasing number of years of teaching experience for which appellant could receive credit for her retirement. Appellant failed to assert compelling public policy as basis for imposing estoppel on OTRS which would outweigh its duty to administer the OTRS to all members based on existing rules and regulations. District court's order, which affirmed board's finding, was supported by law. Hotels, Inc. d/b/a Howard Johnson - Remington Park Lodge vs. Kampar Corp., et al., No. 89,400. Trial court abused its discretion in denying Kampar's plea to vacate default judgment previously entered against it as sanction for discovery misconduct. Trial court failed to consider Kampar's culpability and efficacy of lesser sanctions. Also, Kampar's misconduct did not seriously interfere with judicial process. Paula B. Robbins vs. Herman C. Robbins, Jr., No. 90,031. Trial court did not err in deferring jurisdiction to California to determine child custody case. Trial judge's consultation with commissioner/judge in California did not involve forbidden ex parte communications. …