Dispositions Other Than By Published Opinion | July 27, 2022
Oklahoma Court of Civil Appeals
Division I
119,551 – Terry Larose and Bertha LaRose, husband and wife, Plaintiffs/Appellees, v. Adair County Board of County Commissioners, Defendant/Appellant. Appeal from the District Court of Adair County, Oklahoma. Honorable Timothy King, 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., and DOWNING, J. concur. July 21, 2022
120,102 – In the matter of the Estate of Linda Marie Ortega, deceased, Sandra Eileen Moore, Appellant, v. Judith Tolbert, Personal Representative of the Estate of Linda Marie Ortega, Deceased; Vanessa Ortega-Hicks, and Stephanie Moore Mower, Appellees, Appeal from the District Court of McIntosh County, Oklahoma. Honorable Brian McLaughlin, Judge. In this probate proceeding, Appellant, Sandra Eileen Moore, appeals from the probate court’s order approving the allowed creditor’s claim filed by Appellee, Vanessa Ortega-Hicks (Claimant), against the estate of Linda Marie Ortega, deceased (Decedent). The court found Claimant is entitled to assert a creditor’s claim against the estate for $288,114.28 because Decedent held that amount in a constructive trust for Claimant’s benefit. We cannot find the probate court’s determination is clearly contrary to the weight of the evidence or to some governing principle of law. The probate court’s approval of Claimant’s creditor’s claim is affirmed. Opinion by BELL, P.J.; GOREE, J., and DOWNING, J., concur. July 21, 2022
120,180 – In the matter of the adoption of D.S.J.H. and J.D.T., minor children, Miracle Thompson, Respondent/Appellant, v. Kelly Dawn Edwards, Petitioner/Appellee. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Kurt G. Glassco, Trial Judge. Miracle Thompson, (Appellant) appeals an order of the court determining her children are eligible for adoption by Kelly Dawn Edwards, (Appellee) without her consent. We hold the evidence was clear and convincing that Appellant did not maintain a substantial and positive relationship with her children, and her defense that she was denied the opportunity to maintain the required relationship was not sustained by proof that she took sufficient remedial legal action to enforce her visitation rights. A phone call to the office of the clerk of the district court was not sufficient legal action within the meaning of 10 O.S. §7505-4.2(H)(2). Affirmed. Opinion by GOREE, J.; BELL, P.J., and DOWNING, J., concur. July 21, 2022
120,269 – Chad Hughes and Jennifer Hughes, husband and wife, Plaintiffs/Appellees, Kilkenny Arms Inc., an Oklahoma corporation, Defendant/Appellant. Appeal from the District Court of Grady County, Oklahoma. Honorable Kory S. Kirkland, Trial Judge. Defendant/Appellant, Kilkenny Arms Inc., attempts to appeal from the trial court’s order granting partial summary judgment to Plaintiffs/Appellees, Chad and Jennifer Hughes. Plaintiffs sued Defendant for defamation, quiet title and slander of title. Defendant counterclaimed for specific performance. On Plaintiffs’ motion, the trial court granted summary judgment “as to all contract claims” and allowed Defendant twenty (20) days to amend its petition. Defendant thereafter filed an amended counterclaim and also filed the instant appeal. This Court directed Defendant to show cause within twenty (20) days why this appeal should not be dismissed as premature. Defendant’s response asserted counsel had forwarded documentation to the trial court and averred Defendant would file an amended response after receipt of documentation from the trial court. Plaintiffs objected to Defendant’s response and reasserted their belief that this appeal is premature. Plaintiffs also filed a separate motion for appeal related attorney fees. We hold the trial court’s did not dispose of all the claims then pending, nor was the order certified for immediate appellate review. Accordingly, this appeal is dismissed as premature. Furthermore, we hereby grant Plaintiffs’ motion for appeal related attorney fees and remand this matter for the trial court to determine the amount of attorney fees to be awarded. DISMISSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion by BELL, P.J.; GOREE, J., and DOWNING, J., concur. July 21, 2022
Division II
119,345 – Candace Michelle Kehoe, Plaintiff/Appellee, vs. Patricia Lynn Kehoe, Defendant/Appellant. Appeal from an Order of the District Court of Rogers County, Hon. David Smith, Trial Judge. Patricia Kehoe appeals the trial court’s granting a final protective order in favor of Candace Kehoe’s minor children. Patricia argues that the trial court’s order is contrary to statute because she was not the alleged offender—her minor child was—and that the evidence was insufficient to support the order. On review, we affirm the trial court. AFFIRMED. Opinion from the Court of Civil Appeals, Division II by BLACKWELL J.; WISEMAN, P.J., and FISCHER, C.J. (sitting by designation), concur. July 21, 2022
119,647 (Consolidated with Case No. 119,708) — In the Matter of T.M.T., T.T., and T.T., Alleged Deprived Children, Katie Toy and Tim Toy, Appellants, vs. State of Oklahoma, Appellee. Appeal from an order of the District Court of Le Flore County, Hon. Kenneth Farley, Trial Judge. Katie Toy (Mother) and Tim Toy (Father) appeal trial court orders terminating their parental rights to their three minor children. We are asked to review whether the State of Oklahoma proved by clear and convincing evidence that termination of Mother’s and Father’s parental rights was in the children’s best interests and whether any other trial court errors mandate reversal. After careful review of the record and applicable law, we conclude that clear and convincing evidence firmly supports the decisions of the trial court that Mother’s and Father’s parental rights should be terminated. Finding no error, we affirm. AFFIRMED. Opinion from the Court of Civil Appeals, Division II, by WISEMAN, P.J.; BLACKWELL, J., and FISCHER, C.J. (sitting by designation), concur. July 21, 2022
120,164 — Citizen Energy III, LLC, a Delaware limited liability company, Plaintiff/Appellee, vs. Raven Resources, LLC, an Oklahoma limited liability company; and David Stewart, an individual, Defendants/Appellants. Appeal from an order of the District Court of Oklahoma County, Hon. Aletia Haynes Timmons, Trial Judge. Defendants Raven Resources, LLC, and David Stewart appeal the trial court’s judgment granting in part and denying in part Plaintiff Citizen Energy III, LLC’s amended motion for summary judgment in this case arising from an oil and gas contract. We affirm the trial court’s order granting Plaintiff’s amended motion for summary judgment as to all issues except unjust enrichment. Because we affirm the trial court’s judgment as to the standing and reply brief issues and its judgment awarding damages on Plaintiff’s breach of special warranty of title claim against Raven—a judgment which fully satisfied its claim—we must reverse the judgment for unjust enrichment against both Defendants. We therefore affirm in part and reverse in part. AFFIRMED IN PART AND REVERSED IN PART. Opinion from the Court of Civil Appeals, Division II, by WISEMAN, P.J.; FISCHER, C.J. (sitting by designation), concurs, and BLACKWELL, J., dissents. July 21, 2022
Division III
Division IV
119,705 – In re the Marriage of: Joni M. Aquino, Petitioner/Appellee, vs. Scott A. Aquino, Respondent/Appellant. Appeal from the District Court of Cleveland County, Hon. Michael Tupper, Trial Judge. Scott A. Aquino (Husband) appeals the trial court’s judgment entered against him in favor of Joni M. Aquino (Wife) in the amount of $20,000.00. The issue is that the parties’ divorce decree originally stated the marital residence was to be sold with the parties to equally split any remaining sales proceeds after various debts on the property were paid. However, after the property failed to sell, an Agreed Order was entered, awarding Husband the marital residence and requiring him to refinance the property in his name and to pay all the debts through the refinancing process. The Agreed Order did not require Husband to pay Wife any amount representing her half of any equity in the property and did not state the trial court retained jurisdiction to later determine the issue. Despite the entry of the Agreed Order, the trial court found Wife was entitled to a judgment against Husband in the amount of $20,000.00, an amount the court found represented her share of the equity in the property. Based on our review of the record and applicable law, we reverse the trial court’s judgment and remand for proceedings consistent with our Opinion. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division IV, by HIXON, J.; FISCHER, C.J., and BARNES, P.J., concur. July 20, 2022
119,630 – Stephen Carella, Plaintiff/Appellant, v. The City of Oklahoma City, Defendant/Appellee, and Twenty Third Equity, LLC, Defendant. Appeal from the District Court of Oklahoma County, Hon. Susan C. Stallings, Trial Judge. In this premises liability action for personal injury, Stephen Carella appeals from the trial court’s order sustaining the Second Amended Motion for Summary Judgment filed by the City of Oklahoma City (City). The trial court also sustained City’s motion for immediate appeal pursuant to 12 O.S. 2021 § 994 and, in a post-appeal order, the Oklahoma Supreme Court allowed the appeal to proceed pursuant to § 994(A). From our review of the summary judgment record we conclude material questions of fact remain concerning City’s duty and whether the defect was substantial and whether the defect was a hidden danger. Further, as to the trial court’s grant of summary judgment to City because it found City had not received notice of the defect, we conclude whether City had actual notice or could be found to have had constructive notice of a defect cannot be determined as a matter of law and that material questions of fact remain concerning notice. Consequently, the trial court erred in its grant of summary judgment to City; thus, we reverse and remand for further proceedings. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division IV, by BARNES, P.J.; FISCHER, C.J., concurs, and HIXON, J., concurs specially. July 20, 2022
120,140 – Vital Outdoor Advertising, Inc., an Oklahoma for-profit business corporation, Plaintiff/Appellant, v. The City of Oklahoma City Board of Adjustment, a municipal board of adjustment, Defendant/Appellee. Appeal from the District Court of Oklahoma County, Hon. Aletia Haynes Timmons, Trial Judge. Vital Outdoor Advertising, Inc., appeals from an order of the district court affirming the decision of the City of Oklahoma City Board of Adjustment (BOA). BOA’s order, affirmed by the district, employs incorrect legal terminology. Although BOA stated it lacks jurisdiction to hear the appeal from the denial of Vital’s second application for a permit to erect an electronic billboard, BOA in fact undertook a preclusion-type analysis, concluding, in essence, that Vital’s second application was barred by the denial of its first application which was not appealed. Turning to an examination of whether such a determination is in error, we conclude that as a result of inadequate notice regarding the purported denial of the first application, Vital was not barred from pursuing the second application. Consequently, we conclude that a hearing on the merits of the second application – the denial of which was timely appealed to BOA – is not barred, and we remand this case to BOA with instructions to address the merits of Vital’s second application. REVERSED AND REMANDED WITH INSTRUCTIONS. Opinion from Court of Civil Appeals, Division IV, by BARNES, P.J.; FISCHER, C.J., and HIXON, J., concur. July 20, 2022
119,923 — Nicholus Bechtol, Plaintiff/Appellant, vs. Outdoor Powersports, LLC, a Texas Corporation, and Midground Creators, LLC, an Oklahoma corporation, Defendants/Appellees. Appeal from the District Court of Carter County, Hon. Thomas K. Baldwin, Trial Judge. Nicholus Bechtol appeals the district court’s orders granting summary judgment to Outdoor Powersports, LLC (Outdoor LLC) and Midground Creators, LLC (Midground), respectively. Based on our review of the record and applicable law, we find the district court properly granted summary judgment to Outdoor LLC and affirm the order. However, we find the court erred by granting summary judgment to Midground, and we reverse the order and remand for further proceedings. AFFIRMED IN PART, REVERSED IN PART AND REMANDED. Opinion from Court of Civil Appeals, Division IV, by HIXON, J.; FISCHER, C.J., and BARNES, P.J., concur. July 21, 2022
119,664 – Scott L. Rafferty and Belinda K. Rafferty, Husband and Wife, and Larry L. Rafferty, Plaintiffs/Appellees, vs. Della Ann Jenkins, Defendant/ Appellant. Appeal from the District Court of McClain County, Hon. Charles Gray, Trial Judge. Della Ann Jenkins (Jenkins) appeals the trial court’s Journal Entry of Judgment quieting title in the subject property to Scott L. Rafferty and Belinda K. Rafferty, husband and wife, and Larry L. Rafferty (collectively “Raffertys”) free of any claims of Jenkins, the mortgage holder. The judgment declares the mortgage on the property satisfied, and enters judgment in favor of the Raffertys against Jenkins in the amount of $5,336.00, finding the Raffertys had overpaid by that amount under the promissory note securing the mortgage. The Raffertys counter-appeal the Journal Entry of Judgment to the extent the trial court declined to impose a penalty on Jenkins for her refusal to file a release of the mortgage upon their written request pursuant to 46 O.S. Supp.2016, § 15. Based on our review of the record and applicable law, we affirm the judgment. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by HIXON, J.; FISCHER, C.J., and BARNES, P.J., concur. July 21, 2022
119,721 (Consolidated with Case No. 119,723) – In the Matter of: G.J., Alleged Deprived Child. Gino Ynclan, Respondent/Appellant, and Jessica Judd, Respondent/Appellant, v. State of Oklahoma, Petitioner/Appellee. Appeal from the District Court of Oklahoma County, Hon. Sheila Stinson, Trial Judge. In this termination of parental rights proceeding, Gino Ynclan (Father) and Jessica Judd (Mother) (collectively, Parents) appeal from separate orders entered upon a jury verdict terminating their parental rights to their minor child G.J. We conclude the trial court did not abuse its discretion by allowing the admission into evidence of a VPO petition and Mother was not denied her due process right to the effective assistance of trial counsel. Further, we conclude State presented clear and convincing evidence that Parents failed to correct the conditions that led to adjudication and that termination of their parental rights is in G.J.’s best interests. Consequently, the jury’s verdict terminating their parental rights is supported by the evidence; thus, we affirm the trial court’s orders terminating Parents’ parental rights. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by BARNES, P.J.; FISCHER, C.J., and HIXON, J., concur. July 25, 2022