Dispositions Other Than By Published Opinion | Jan 19, 2022

Oklahoma Court of Civil Appeals

Division I

119-409  –  In the Matter of the Adoption of L.J.S. and K.R.S., minor children, Loyd Allen Rich, and Lois Dyanne Rich, Appellants, v. Jamie Horner, Appellee.  Appeal from the District Court of Payne County, Oklahoma.  Honorable Stephen R. Kistler, Trial Judge. Appellants, Lois Dyanne Rich and Loyd Allen Rich, appeal an order denying their petition for adoption and determining Appellee, Jamie Horner, was eligible to adopt the minor children.  The court made its decision after an evidentiary hearing, and based on the best interests of the children.  The record submitted by Appellants does not demonstrate that the trial court’s denial of their petition was based on something less than clear and convincing evidence. Affirmed. Opinion by GOREE, J.; BELL, P.J., and PRINCE, J., (sitting by designation), concur. – Jan. 18, 2022

119,288  –  Lorraine Delecia Breedlove, Petitioner/Appellant, v. David Kent Breedlove, Respondent/Appellee.  Appeal from the District Court of Grant County, Oklahoma.  The Honorable Jack Hammontree, Trial Judge.  In this dissolution of marriage proceeding, Petitioner/Appellant, Lorraine Delecia Breedlove (Wife), appeals from the trial court’s division of marital property, support alimony award and the trial court’s designation of an investment account as the separate property of Respondent/Appellee, David Dent Breedlove (Husband).  Wife also appeals from the trial court’s order denying Wife’s request for attorney fees.  For the reasons set forth hereinafter, we affirm the court’s designation of the investment account as Husband’s separate property.  We find the trial court abused its discretion when it awarded Wife inadequate support alimony.  This Court modifies the trial court’s award and awards Wife $72,000.00 in support alimony payable at the rate of $1,200.00 per month for 60 months effective as of the file date of the decree of dissolution of marriage.  We further find the trial court’s division of marital property and award of alimony in lieu of marital property was inequitable and an abuse of discretion.  This portion of the decree of dissolution of marriage is reversed and remanded for further proceedings consistent with this opinion.  Opinion by BELL, P.J.; GOREE, J., and PRINCE, J., (sitting by designation) concur. – Jan. 11, 2022

119,706 –  Packaging Solutions, Plaintiff/Appellee, v. Acme Engineering and Manufacturing Company, Defendant/Appellant.  Appeal from the District Court of Pittsburg County, Oklahoma.  Honorable Michael W. Hogan, Trial Judge. Acme Engineering and Manufacturing Company, Defendant/Appellant, appealed an order vacating a summary judgment in its favor against Packaging Solutions, Plaintiff/Appellee.  If more than thirty days has elapsed after entry of the judgment, the proper method to assert an alleged irregularity in obtaining a judgment is a motion to vacate.  12 O.S. §1031(3) and 12 O.S. §1032.  The district court did not abuse its discretion where it settled a factual controversy in favor of Packaging Solutions by finding counsel had not been timely served with the motion for summary judgment.  Affirmed.  Opinion by GOREE, J.; BELL, P.J., and PRINCE, J., (sitting by designation), concur. – Jan. 11, 2022

119,755  –  First Priority Bank, an Oklahoma Corporation, Plaintiff/Appellee, v. Sugar Rush Bakery, LLC, an Oklahoma Limited Liability Company: Angela S. Ellis a/k/a Angela S. Landrum-Ellis ; Kenneth C. Ellis; and Aurrad R. Murry, Defendants, and Doris Ellis, Trustee of the Doris J. Ellis Revocable Trust dated October 27, 1999, and Doris Ellis, Individually, Intervenor/Appellant.  Appeal from the District Court of Tulsa, County, Oklahoma.  Honorable Linda G. Morrissey, Trial Judge.

Plaintiff/Appellee, First Priority Bank (Bank), brought this action against Defendants to collect upon outstanding indebtedness due from Defendant Sugar Rush Bakery (Bakery) to Bank, and to enforce security interests and guaranties.  Bank loaned $299,000.00 and $35,000.00 to Bakery.  Defendant, Kenneth C. Ellis, the then acting Trustee of the Doris J. Ellis Revocable Trust dated October 27, 1999 (Trust), pledged certain Trust property as security for the $299,000.00 note.  Doris Ellis, individually and as current Trustee of the Trust (Intervenor), intervened in the action claiming Kenneth was not authorized to pledge Trust property as security for the loan; Bank had a duty to investigate Kenneth’s authority to pledge Trust assets; and Bank acted in bad faith in accepting the pledged Trust assets.  The trial court granted Bank summary judgment against Intervenor.  The court held Bank had no duty to inquire into the Trustee’s power or authority or the validity of any act of the Trustee nor was Bank liable for the application of any money paid or properly delivered to the Trustee.  As support, the court cited to 60 O.S. 2011 §175.57 and the Memorandum of Trust signed by the Settlor.  Upon entry of final judgment, Intervenor filed this appeal.  We hold the trial court properly granted judgment to Bank and affirm.  Opinion by BELL, P.J.; GOREE, J., and PRINCE, J. (sitting by designation) concur. – Jan. 11, 2022


Division II


Division III

119,097  –  Edward Wray, Petitioner/Appellee, v. Barbara Ardeno (now Fleming), Respondent, and Michael Christopher Fleming, Respondent/Appellant. Appeal from the District Court of Cherokee County, Oklahoma.  Honorable Jerry S. Moore, Trial Judge. Respondent/Appellant Michael Christopher Fleming appeals the trial court’s denial of his motion to intervene in a paternity action brought by Petitioner/Appellee Edward Wray. Because Fleming was named as a respondent from the beginning of this case and he has not been dismissed as a party, his motion to intervene is moot and the trial court therefore correctly denied the motion. We AFFIRM. Opinion by SWINTON, J.; MITCHELL, V.C.J., and PRINCE, P.J., concur. – Jan. 18, 2022

119,262 –  Eric Don Woolsey, Plaintiff/Appellant, v. State of Oklahoma, ex. rel. Oklahoma Bureau of Investigation, Defendant/Appellee. Appeal from the District Court of Latimer County, Oklahoma.  Honorable Bill D. Welch, Trial Judge. This case addresses whether the expungement of a felony conviction renders that felony conviction non‑existent for purposes of considering whether the petitioner is entitled to additional expungements stemming from other cases.  The trial court entered a detailed Order on November 13, 2020, determining that expungement of all but one of Eric Don Woolsey’s various charges and/or convictions was not warranted based on the plain meaning of 22 O.S. § 18, and its applicable subparts, which is that the mere fact that Woolsey’s prior felony conviction had been expunged does not mean that the felony conviction didn’t exist for purposes of determining whether his other charges and/or convictions could be expunged.  Based on our de novo review, we AFFIRM the trial court’s Order. Opinion by PRINCE, P.J.; MITCHELL, V.C.J., and SWINTON, J., concur. – Jan. 18, 2022

119,711 –  Melani G. Hill, Petitioner, v. Goodwill Industries of Duncan, Compsource Mutual Insurance Company, and the Workers’ Compensation Court of Existing Claims. Proceeding to Review an Order of the Workers’ Compensation Court of Existing Claims. Honorable Margaret Bomhoff, Trial Judge. Petitioner, Melani G. Hill (“Claimant”), appeals from an order of the Workers’ Compensation Court of Existing Claims (“WCC”), which ordered recoupment of overpayment made to Claimant.  Claimant argues on appeal that the order for recoupment is ambiguous and could be used later by Respondent, Goodwill Industries of Duncan (“Employer”) to seek a reduction in the benefits that are rightly owed to Claimant.  We disagree with Claimant and, consequently, AFFIRM the Orders entered herein on June 17, 2021 and June 21, 2021. Opinion by PRINCE, P.J.; MITCHELL, V.C.J., and SWINTON, J., concur. Jan. 18, 2022

119,713  – Mitchell Royalty Limited Partnership and Amcon Resources Corp., Plaintiffs/Appellees, v. Malcom Gatewood; Herschele White; Norma Jean White; Tommie Ballard; Charles Ballard; Charlton Rigsby; Alma Alice Gordon; and their heirs, assigns, executors and successors, Defendants, and Blackfoot Energy, LLC; Keystone Land & Minerals, LLC; and Chris Poston, LLC, Defendants/Third-Party Plaintiffs/Appellants, v. EOG Resources, Inc., Third-Party Defendant. Appeal from the District Court of Grady County, Oklahoma.  Honorable Kory Kirkland, Trial Judge. Defendants/Third‑Party Plaintiffs/Appellants Blackfoot Energy, LLC, Keystone Land & Minerals, LLC, and Christ Poston, LLC, (collectively, LLC Defendants) appeal from a summary judgment quieting title in certain mineral interests in Plaintiffs/Appellees Mitchell Royalty, LP, and Amcon Resources Corp. (collectively, Plaintiffs).  Plaintiffs obtained the mineral interests by a sheriff’s deed following an escheat proceeding.  LLC Defendants argued one interest in the minerals was held by a life estate and was not part of the escheat judgment. LLC Defendants have not presented evidentiary materials creating a question of fact. The record shows Plaintiffs were entitled to judgment as a matter of law and we AFFIRM. Opinion by SWINTON, J.; MITCHELL, V.C.J., and PRINCE, P.J., concur. – Jan. 18, 2022

119,688 – In the Matter of the Estate of Sandra K. Dice, Deceased, Sue Crase, Personal Representative, Appellant, v. Michael Martin, Appellee. Appeal from the District Court of Haskell County, Oklahoma.  Honorable Brian C. Henderson, Trial Judge. Appellant Sue Crase appeals the trial court’s June 2, 2021 Order, in which the trial court awarded Appellee Michael Martin, a secondary beneficiary, the decedent’s entire estate pursuant to the wording of the admitted will.  While Appellant purports to raise two discrete propositions of error on appeal, we hold that the dispositive question before us is whether the order appealed from is clearly contrary to the weight of the evidence or to some governing principle of law concerning the admitted will’s No Contest Clause.  We hold that the order appealed from is not clearly contrary to the weight of the evidence or to some governing principle of law and, therefore, AFFIRM. Opinion by PRINCE, P.J.; MITCHELL, V.C.J., concurs  and SWINTON, J., concurs in result. – Jan. 13, 2022

119,077 – Laura Nicole Sheldon, Petitioner/Appellee, v. Erick Curtis Sheldon, Respondent/Appellant. Appeal from the District Court of Garfield County, Oklahoma. Honorable Paul K. Wooward, Trial Judge. Respondent/Appellant Erick Curtis Sheldon (Father) appeals from the trial court’s order which vacated an agreed order resolving both Father’s motion to modify visitation and an application for contempt citation filed by Petitioner/Appellee Laura Nicole Sheldon (Mother).  The trial court vacated the order based on its finding that, pursuant to the Oklahoma Uniform Child Custody Jurisdiction and Enforcement Act, 43 O.S.2021 §§ 551-201 et. seq. (the Act or UCCJEA), it did not have jurisdiction.  It is undisputed the parties lived in Oklahoma at the beginning of their dissolution proceedings and Oklahoma properly exercised jurisdiction to make the initial custody determination.  Mother later moved to Texas and Father, a naval pilot at the beginning of this proceeding, lived in various places due to his employment in the Navy and Air Force Reserves and as a commercial pilot.  Father was residing in Enid at the time of the modification hearing. While Mother had registered the decree in Texas, neither Texas nor any other state had exercised jurisdiction in this case and no court had made a finding Oklahoma no longer had jurisdiction at the time the parties agreed on modification and contempt. Accordingly, under the UCCJEA, Oklahoma had continuing, exclusive jurisdiction at the time of the agreed order modifying visitation. On de novo review, we find the trial court erred as a matter of law in vacating the agreed modification order based on a retroactive determination it no longer had jurisdiction.  We therefore REVERSE.  Opinion by SWINTON, J..; MITCHELL, V.C.J., and PRINCE, P.J., concur. – Jan. 12, 2022

119,646 –  In the Matter of: E.F., a Child Under 18 Years of Age, Christopher Forte, Appellant, v. State of Oklahoma, Appellee. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Martha Rupp Carter, Trial Judge. Appellant, Christopher Forte (“Father”), appeals a decision of the trial court adjudicating his child, E.F., an Indian Child, as deprived.  E.F. was removed from the custody of her parents at birth during January, 2021.  This action was commenced by Appellee, the State of Oklahoma (“State”), on January 20, 2021, due to the fact that the parents of E.F. had previously allowed another minor child to be subjected to abuse/neglect and that they are respondents in a deprived proceeding concerning that other child.  Following a two day trial, the trial court held that, based on clear and convincing evidence, it was not in E.F.’s best interest to be placed with Father and that allowing Father to have custody would likely result in serious emotional or physical damage to E.F.  Father asserts three errors on appeal.  Father claims that the trial court committed error when it determined that it was not in E.F.’s best interest to be placed with him because there was no evidence presented indicating that Father had abused or neglected E.F., that no evidence was presented to demonstrate that E.F. was likely to suffer serious emotional or physical injury if returned to Father, and that the Department of Human Services (“DHS”) failed to take active efforts to aid Father with the completion of his services.  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 adjudicating E.F. as deprived is AFFIRMED. Opinion by PRINCE, P.J.; MITCHELL, V.C.J., and SWINTON, J., concur. – Jan. 12, 2022

119,900 –  Tianny Mize, Plaintiff/Appellant, v. APC Veterinary, LLC a/k/a Affordable Pet Care; SDOK, LLC., d/b/a APC Veterinary a/k/a Affordable Pet Care; Scott Carlin, Defendants/Appellees, and Michelle Harris, Defendant. Appeal from the District Court of Osage County, Oklahoma. Honorable Stuart Tate, Trial Judge. Plaintiff/Appellant Tianny Mize appeals from an order granting summary judgment to Defendants/Appellees APC Veterinary, LLC a/k/a Affordable Pet Care and Scott Carlin in a negligence action related to personal injuries sustained while riding a jet ski at a work-sponsored event.  Because we agree that there were no material facts in dispute, and that a waiver related to the activities executed by Plaintiff was valid, the trial court properly granted summary judgment to Defendants.  We AFFIRM. Opinion by SWINTON, J.; MITCHELL, V.C.J., and PRINCE, P.J., concur. – Jan. 12, 2022


Division IV