Dispositions Other Than By Published Opinion | Aug. 3, 2022
Oklahoma Court of Civil Appeals
Division I
119,561 – Jovonna Fields, as Executrix of the Estate of Billy W. Bozarth, deceased and William George Robinson, individually, Plaintiffs/Appellees, v. Billy Ray Bozarth, individually, Billy Ray Bozarth as Trustee of the Bozarth Family Revocable Trust, Brian Wesley Bozarth, Richard D. Bozarth, Estate, Michael Bozarth, Kenny Bozarth and The Salvation Army of Fort Smith, AR. Defendants, The American Diabetes Association, Defendant/Appellant. Apeal from the District Court of LeFlore County, Oklahoma. Honorable Jonathan Sullivan, Trial Judge. Defendant filed a motion to vacate the default judgment against it. Defendant contends the trial court abused its discretion when it failed to exercise its term-time authority to vacate the default judgment pursuant to 12 O.S. 2011 §1031.1. It also contends the trial court abused its discretion when it declined to vacate the default judgment due to unavoidable casualty and misfortune pursuant to 12 O.S. 2011 §1031(7). We reverse and remand with directions. Opinion by GOREE, J.; BELL, P.J., concurs specially and DOWNING, J., dissents. July 26, 2022
Division II
119,937 — Michael C. Washington, Plaintiff/Appellant, vs. Aletia Timmons, Garland Pruitt, Pastor John A. Reed, Jr., Leonard Benton, Lee Cooper, Local Chapter of the N.A.A.C.P. and Gary Royal, Defendants/Appellees, and Patricia Parrish, Rex Hodges, Southwestern Urban Foundation Board of Directors, Willie B. Rogers, Anderson Floyd, Stanley Evans, John E. Green, Majorie Young, Horace Stevenson and Horace Stevenson Foundation, and Steve Lackmeyer, Defendants. Appeal from an order of the District Court of Oklahoma County, Hon. Cindy H. Truong, Trial Judge. Michael C. Washington appeals (1) a trial court order vacating its previous order dismissing the action against some defendants and finding the dismissal was appealable pursuant to 12 O.S. § 994(A) and (2) its subsequent order denying his motion to vacate that order of vacation. After review, we conclude the trial court did not abuse its discretion in vacating its May 2021 order and affirm that decision. However, the remaining issues raised in this appeal are not ripe for appellate review. We therefore affirm the vacation of the May 2021 order and dismiss the remainder of this appeal due to lack of an appealable order. AFFIRMED IN PART AND DISMISSED IN PART. Opinion from the Court of Civil Appeals, Division II, by WISEMAN, P.J.; BLACKWELL, J., and BARNES, J. (sitting by designation), concur. July 27, 2022
119,947 – Valerie Wilson, Petitioner, vs. Multiple Injury Trust Fund and The Workers’ Compensation Commission, Respondents. Proceeding to Review an Order of The Workers’ Compensation Commission, Hon. P. Blair McMillin, Administrative Law Judge. Claimant, Valerie Wilson, appeals the Workers’ Compensation Commission’s Order Affirming Decision of Administrative Law Judge. The Administrative Law Judge held Claimant was not permanently totally disabled due to a combination of her injuries and denied her claim against the Multiple Injury Trust Fund. The ALJ’s decision was neither against the clear weight of the evidence nor contrary to law. The Order Affirming Decision of Administrative Law Judge is sustained. SUSTAINED. Opinion from Court of Civil Appeals, Division II, by RAPP, J.; WISEMAN, P.J., and BLACKWELL, J., concur. July 27, 2022
119,980 – GreyT Estates, LLC, Plaintiff/Appellee, vs. Kenneth E. Richerson, III aka Kenneth Richardson, Defendant/Appellant, and Spouse of Kenneth E. Richerson, III aka Kenneth Richardson, if married and Occupants of the Premises, Defendants. Appeal from an Order of the District Court of Muskogee County, Hon. Brett Smith, Trial Judge. Kenneth Richardson appeals the district court’s granting of Greyt Estates, LLC’s motion to foreclose on a note and contract for deed by summary judgment. On review, we find that no certified or sworn copy of the note in question was presented during the summary judgment procedure as required by 12 O.S. § 2056. As such, we vacate the grant of summary judgment, the related award of attorney’s fees, and remand for further proceedings. VACATED AND REMANDED. Opinion from the Court of Civil Appeals, Division II by BLACKWELL, J.; HIXON, J. (sitting by designation), concurs, and WISEMAN, P.J., concurs specially. July 27, 2022
120,045 – In the Matter of S.D.T., Deprived Child: Susan Tidwell-Henderson, Appellant, vs. State of Oklahoma, Appellee. Appeal from an Order of the District Court of Okmulgee County, Hon. Deborah Reheard, Trial Judge. Ms. Susan Tidwell-Henderson appeals the trial court’s denial of her motion for a new trial and/or motion to vacate the judgment terminating her parental rights as to S.D.T., a minor child. After the verdict and judgment, the trial court became aware that the bailiff had inadvertently sent a witness’s unadmitted notes, used to refresh the witness’s recollection, back with the jury during deliberations along with the admitted exhibits. Ms. Tidwell-Henderson filed a motion for new trial arguing that the error so tainted the proceedings that a new trial was required. The trial court denied the motion. Upon review of the full record, we affirm. AFFIRMED. Opinion from the Court of Civil Appeals, Division II by BLACKWELL, J.; WISEMAN, P.J., and HIXON, J. (sitting by designation), concur. July 28, 2022
119,200 – In re the Marriage of: Laci Nicole Jennings, Petitioner/Appellee, vs. Timothy Jacob Jennings, Respondent/Appellant. Appeal from an Order of the District Court of Oklahoma County, Hon. Martha Oakes, Trial Judge. Timothy Jennings (Tim) appeals the trial court’s modification of custody of the parties’ minor child. Both Tim and his former wife, Laci Jennings, sought to end their previously agreed-upon joint custody arrangement and become their child’s sole custodian. After trial, the district court awarded sole custody to Laci and required Tim to complete at least twenty-six weeks of a batter’s intervention program before the court would consider allowing any visitation. On review, we find no error in the trial court’s decision and affirm. AFFIRMED. Opinion from the Court of Civil Appeals, Division II by BLACKWELL J.; WISEMAN, P.J., and HIXON, J. (sitting by designation), concur. July 28, 2022
119,426 — In re the Marriage of: Kayla Dawn Dauzart, Petitioner/Appellant, vs. Kenneth Lee Dauzart, Respondent/Appellee. Appeal from an order of the District Court of Oklahoma County, Hon. Barry L. Hafar, Trial Judge. Kayla Dawn Dauzart, now Carpenter, (Mother) appeals an order of the trial court granting Kenneth Lee Dauzart’s (Father) motion to modify custody, support, and visitation. The trial court also considered during trial Father’s objection to Mother’s notice to relocate and his application for a contempt citation. Our review of the evidence persuades us that the trial court did not abuse its discretion in its decisions, and we affirm. AFFIRMED. Opinion from the Court of Civil Appeals, Division II, by WISEMAN, P.J.; BARNES, J. (sitting by designation), concurs, and BLACKWELL, J., dissents. July 28, 2022
119,459 – Randy Jones, Plaintiff/Appellant, vs. Charles Cabler and Hobby Lobby Stores, Inc., Defendants, and AGC Comp & Safety Group and Smart Casualty Claims, Intervenors/Appellees. Appeal from the District Court of Oklahoma County, Honorable Susan C. Stallings, Trial Judge. Randy Jones appeals a decision of the district court finding his workers’ compensation insurer was entitled to a subrogation reimbursement of $44,254 from the proceeds of his tort recovery against the third parties who caused his injuries. Jones challenges (1) the constitutionality of the statutory workers’ compensation subrogation statute, and (2) whether, if the statute is constitutional, the insurer can recover reimbursement for amounts spent on a “medical case manager.” We affirm, finding the relevant statutory provision to be constitutional and that the appellant has failed to show that reimbursement for the medical case manager was outside the statutory framework. AFFIRMED. Opinion from Court of Civil Appeals, Division II, by BLACKWELL, J.; WISEMAN, P.J., and BARNES, J. (sitting by designation), concur. July 29, 2022
119,616 – In the Matter of A.V.K.J., C.L.T.B., JR., C.K.H.B., II and M.H., Alleged Deprived Children: Ashley Fraser, Appellant, vs. State of Oklahoma, Appellee. Appeal from the District Court of Oklahoma County, Honorable Cassandra Williams, Trial Judge. Ashley Fraser appeals the trial court’s order, entered after jury verdict, terminating her parental rights as to four of her minor children, C.B. Jr. (b. 2009), C.B. II (b. 2010), M.H. (b. 2013), and A.J. (b. 2019). Ms. Fraser argues on appeal that the trial court erred (1) in failing to apply the heightened standard of review required by federal law as to certain elements of her case; (2) by allowing the introduction of certain criminal convictions and arrest details. She also argues that the evidence was insufficient to support termination in two respects. After a careful review of the record, we affirm the order terminating Ms. Fraser’s parental rights. AFFIRMED. Opinion from Court of Civil Appeals, Division II, by BLACKWELL, J.; WISEMAN, P.J., and BARNES, J. (sitting by designation), concur. July 28, 2022
119,894 – Tamra Simmons and Shannon Harrison, Plaintiffs/Appellants, vs. Susie Myers, Individually and Trustee of the Susie Myers Living Trust dated August 30, 2012 and Karen Black, Defendants/Appellees. Appeal from the District of Caddo County, Honorable Kory Kirkland, Trial Judge. Tamra Simmons and Shannon Harrison appeal the trial court’s grant of summary judgment to Susie Myers and Karen Black on three separate bases. They first claim the trial court erred in construing the trust as revocable as opposed to irrevocable. Second, they argue that the trial court erred in giving effect to a deed of homestead that was not executed by the spouse of the grantor. Finally, they insist the trial court erred in finding no issue of material fact on their claim that the deeds in question were the result of the undue influence and/or fraud of the appellees. On appeal, we affirm the trial court as to the first two rulings, but reverse and remand on the question of the possibility of undue influence and/or fraud. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. Opinion from Court of Civil Appeals, Division II, by BLACKWELL, J.; WISEMAN, P.J., and BARNES, J. (sitting by designation), concur. July 28, 2022
119,034 (Companion with Case No. 119,596) — First Christian Church of Blackwell, Plaintiff/Appellee, vs. Brotherhood Mutual Insurance Company, an Indiana Corporation, Defendant/Appellant. Appeal from an order of the District Court of Kay County, Hon. David R. Bandy, Trial Judge. Defendant Brotherhood Mutual Insurance Company appeals from a judgment entered on a jury’s verdict against it for breach of contract, breach of the duty of good faith, and punitive damages. After full review of the record and relevant law, we affirm the trial court’s rulings. AFFIRMED. Opinion from the Court of Civil Appeals, Division II, by WISEMAN, P.J.; BLACKWELL, J., and BARNES, J. (sitting by designation), concur. August 2, 2022
Division III
119,885 – In re the Marriage of: Jani Jo Reibold, Petitioner/Appellee, v. Kelley M. Riebold, Respondent/Appellant. Appeal from the District Court of Comanche County, Oklahoma. Honorable Irma Newburn, Trial Judge. Mother and Father divorced in August 2019. Consistent with their agreement, the trial court entered a joint custody plan with equal visitation of the party’s two minor children, ages five and seven. The following year, both parents sought sole custody through a modification of the divorce degree. The court granted custody to Mother, and Father appealed. In the record on appeal, Father provided a narrative statement because there was no stenographic transcript of the trial. The court adopted Father’s statement without modification because Mother did not provide a statement nor an objection or amendment to Father’s statement. We find the grant of custody to Mother to be clearly against the weight of the evidence before us. We AFFIRM the vacation of the joint custody order, REVERSE the award of custody to Mother, AND REMAND for further proceedings to determine child support and visitation. Soon after trial, Father filed a motion for attorney fees based on his prevailing status on a motion to enforce visitation. Father also filed a motion to appoint a guardian ad litem. We do not find error in the trial court’s denial of both motions because Father does not meet the statutory requirement for attorney fees and the appointment of a guardian ad litem is discretionary with the trial court.. Opinion by MITCHELL, V.C.J.; PRINCE, P.J., and SWINTON, J., CONCUR. July 29, 2022
119,940 – Joshua Vogler and Tiffany Vogler, husband and wife, Plaintiffs/Petitioners, v. Advance Oil Corporation, an Oklahoma domestic business corporation, Defendant/Respondent. Appeal from the District Court of Okmulgee County, Oklahoma. Honorable Pandee Ramirez, Trial Judge. Plaintiffs/Petitioners Joshua and Tiffany Vogler appeal from an interlocutory order denying their request for an evidentiary hearing on their motion for an abatement and cleanup order related to alleged pollution by Defendant/Respondent Advance Oil Corporation. Plaintiffs argue that the trial court improperly denied the request to present evidence under Rule 4 of the Rules for District Courts of Oklahoma. We agree and REVERSE the matter for proceedings consistent with this opinion. Opinion by SWINTON, J.; MITCHELL, V.C.J., and PRINCE, P.J., CONCUR. July 29, 2022
120,056 – [Comp. with 120,057 and 120,058] In the Matter of T.R., Jr., I.R. and I.R., Deprived Children: State of Oklahoma, Petitioner/Appellee, v. Misty Adams, Respondent/Appellant. Appeal from the District Court of Pontotoc County, Oklahoma. Honorable Lori L. Jackson, Trial Judge. Respondent/Appellant Misty Adams (Mother) appeals from the trial court’s order terminating her parental rights to three of her children, T.R., Jr., I.R., and I.R. Mother gave birth to two other children while this case was pending, both of whom were born with methamphetamine in their systems and were adjudicated deprived in separate proceedings. After the second birth, the State of Oklahoma criminally charged Mother with child abuse by injury. Mother proposed and executed a plea agreement in which she agreed to stipulate to the grounds for termination in her deprived cases in exchange for the State’s agreement to let her enter Drug Court as an alternative to criminal prosecution. The court agreed to hold Mother’s stipulation under advisement as long as she was in “good standing” with Drug Court. On appeal, Mother’s argues the court erred by finding she violated the agreement, alleging “good standing” meant her parental rights could not be terminated as long as she remained in Drug Court. After de novo review, we find the court did not erroneously interpret Mother’s agreement. Further, there was clear and convincing evidence, independent of Mother’s stipulation, to support termination. Accordingly, we AFFIRM. Opinion by MITCHELL, V.C.J.; PRINCE, P.J., and SWINTON, J., CONCUR. July 29, 2022
120,057 – [Comp. with 120,056 and 120,058] In the Matter of W.R., A Deprived Child: State of Oklahoma, Petitioner/Appellee, v. Misty Adams, Respondent/Appellant. Appeal from the District Court of Pontotoc County, Oklahoma. Honorable Lori L. Jackson, Trial Judge. Respondent/Appellant Misty Adams (Mother) appeals from the trial court’s order terminating her parental rights to her daughter, W.R. W.R. was born during the pendency of another deprived proceeding involving Mother’s three older children. Because she was born with methamphetamine in her system, W.R. was immediately taken into emergency custody and adjudicated deprived. Approximately one year after W.R.’s birth, Mother had another child who also tested positive for methamphetamine. After the second birth, the State of Oklahoma criminally charged Mother with child abuse by injury. Mother proposed and executed a plea agreement in which she agreed to stipulate to the grounds for termination in her deprived cases in exchange for the State’s agreement to let her enter Drug Court as an alternative to criminal prosecution. The court agreed to hold Mother’s stipulation under advisement as long as she was in “good standing” with Drug Court. On appeal, Mother’s argues the court erred by finding she violated the agreement, alleging “good standing” meant her parental rights could not be terminated as long as she remained in Drug Court. After de novo review, we find the court did not erroneously interpret Mother’s agreement. Further, there was clear and convincing evidence, independent of Mother’s stipulation, to support termination. Accordingly, we AFFIRM. Opinion by MITCHELL, V.C.J.; PRINCE, P.J., and SWINTON, J., CONCUR. July 29, 2022
120,058 – [Comp. with 120,056 and 120,057] In the Matter of P.R., A Deprived Child: State of Oklahoma, Petitioner/Appellee, v. Misty Adams, Respondent/Appellant. Appeal from the District Court of Pontotoc County, Oklahoma. Honorable Lori L. Jackson, Trial Judge. Respondent/Appellant Misty Adams (Mother) appeals from the trial court’s order terminating her parental rights to her son, P.R. P.R. was born during the pendency of two other deprived proceedings involving Mother’s children. Because P.R. was Mother’s second child within a span of approximately fifteen months to be born with methamphetamine in his system, the State of Oklahoma criminally charged Mother with child abuse by injury in addition to seeking termination of her parental rights to the children. Mother proposed and executed a plea agreement in which she agreed to stipulate to the grounds for termination in her deprived cases in exchange for the State’s agreement to let her enter Drug Court as an alternative to criminal prosecution. The court agreed to hold Mother’s stipulation under advisement as long as she was in “good standing” with Drug Court. On appeal, Mother’s argues the court erred by finding she violated the agreement, alleging “good standing” meant her parental rights could not be terminated as long as she remained in Drug Court. After de novo review, we find the court did not erroneously interpret Mother’s agreement. Further, there was clear and convincing evidence, independent of Mother’s stipulation, to support termination. Accordingly, we AFFIRM. Opinion by MITCHELL, V.C.J.; PRINCE, P.J., and SWINTON, J., CONCUR. July 29, 2022
120,062 – In The Matter of: M.S., Child Adjudicated to be Deprived. Marc Ssali, Natural Father, Respondent/Appellant, v. State of Oklahoma, Petitioner/Appellee. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Martha Rupp, Trial Judge. Appellant, Marc Ssali (“Father”), appeals the jury decision terminating his parental rights as to the minor child, M.S. Immediately following M.S.’s birth, the State moved for emergency custody due to the natural mother’s admitted drug use during pregnancy and Father’s incarceration. M.S. was removed from the custody of his parents, placed in DHS custody, and subsequently adjudicated as deprived. The State then moved for termination of Father’s parental rights. After a two day trial, the jury found that, based on clear and convincing evidence, termination of Father’s parental rights was in in the best interest of the child on two separate grounds: first, that Father was incarcerated and continuation of his parental rights would result in harm to the child; and, secondly, that the child was less than four years old at the time of foster placement, had been in foster care for six of the last twelve months, and that Father was responsible for the child being in such foster care. We have reviewed the record and applicable law and find that the order of the trial court is supported by clear and convincing evidence. The order terminating Father’s parental rights as to M.S. is AFFIRMED. Opinion by PRINCE, P.J.; MITCHELL, V.C.J., and SWINTON, J., CONCUR. July 29, 2022
120,183 – In the Matter of the Adoption of M.H.T. a minor child, Robin Worthington, Movant/Appellant, vs. Whitney Allison Hicks, Petitioner/Appellee.. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Kurt G. Glassco, Trial Judge. Movant/Appellant Robin Worthington (Grandmother) appeals from an order denying her motion to intervene in this adoption proceeding initiated by Petitioner/Appellee Whitney Allison Hicks (Foster Mother). An earlier court ruling found good cause to deviate from the ICWA placement preferences in this case and Grandmother did not have court ordered visitation to preserve in this proceeding. Accordingly, Grandmother did not have an interest necessary to intervene as of right. The record also shows no abuse of discretion in denying Grandmother permissive intervention. We affirm. Opinion by SWINTON, J.; MITCHELL, V.C.J., and PRINCE, P.J., CONCUR. July 29, 2022
120,191 – Floyd Smith, Petitioner/Appellant, v. City of Tulsa and the Worker’s Compensation Commission, Respondents/Appellees. Appeal from the District Court of the Worker’s Compensation Commission of Oklahoma. Floyd Smith (“Smith”) seeks review of an Order Affirming Decision of Administrative Law Judge by the Oklahoma Workers’ Compensation Commission En Banc (“Commission”) filed on January 18, 2022. Smith asserts several constitutional challenges to the application of the 350 week limitation on PPD awards set out in 85A O.S. § 46H. Most of Smith’s arguments have previously been resolved by prior opinions of this Court. For the reasons stated, we answer the questions presented in the negative and AFFIRM the decision of the Commission. Opinion by PRINCE, P.J.; MITCHELL, V.C.J., and SWINTON, J., CONCUR. July 29, 2022
Division IV
120,016 (Consolidated with Case No. 120.021) — In the Matter of C.S., Alleged Deprived Child, Cassandra Stoker and Jimmy Stoker, Appellants, vs. State of Oklahoma, Appellee. Appeal from the District Court of McIntosh County, Hon. Brendon Bridges, Trial Judge. Cassandra Stoker (“Mother”) and Jimmy Stoker (“Father”) appeal Orders entering the jury’s verdicts terminating their parental rights to the minor child, C.S. Based on our review of the evidence at trial, we find State presented clear and convincing evidence to support termination. For the reasons detailed in our opinion, we affirm the trial court’s Orders terminating Mother and Father’s parental rights. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by HIXON, J.; FISCHER, C.J., and BARNES, P.J., concur. August 1, 2022