Dispositions Other Than By Published Opinion | July 5, 2023
Oklahoma Court of Civil Appeals
Division I
120,372 – In the Matter of the Estate of Benjamin Gilbert Checotah, Deceased: Annie Hobson Checotah, Plaintiff/Appellant, v. Estate of Benjamin Gilbert Checotah, Deceased, by and through Anita Leybas, Personal Representative, Defendant/Appellee. Appeal form the District Court of Okmulgee County, Oklahoma. Honorable Cynthia Pickering, Trial Judge. Appellant, Annie Hobson Checotah, appeals the Okmulgee County District Court order finding Appellant was not the common law spouse of the Decedent, Benjamin Checotah, and Decedent’s sister would remain the personal representative of the Decedent’s estate. For the reasons provided, we affirm the decision of the Okmulgee County District Court. Opinion by GOREE, P.J.; DOWNING, J., concurs and SWINTON, J., dissents. June 29, 2023
120,735 – In the Matter of E.J.T. and C.T.T., Deprived Children, Brianna Tatum, Appellant, v. State of Oklahoma, Appellee. Appeal from the District Court of Murray County, Oklahoma. Honorable Aaron Duck, Trial Judge. Appellant Briana Tatum (Mother) appeals from an order terminating her parental rights to two minor children, E.J.T. and C.T.T. Mother argues that the record does not show that she competently, knowingly, and intelligently waived her right to a jury trial; and that the trial court failed to properly apply the termination statutes. Upon review of the record on appeal and applicable law, we affirm. Opinion by DOWNING, J.; GOREE, P.J., concurs and SWINTON, J., dissents.
121,151 – John Sargent, Plaintiff/Appellant, v. Mike Himes, Mark West Oklahoma Gas Company, L.L.C., Defendants/Appellees, Progressive County Mutual Insurance Company, Intervenor, Atlantic Specialty Insurance Company, Inc., Intervenor. Appeal form the District Court of Kingfisher County, Oklahoma. Honorable Lance Schneiter, Trial Judge. John Sargent, Plaintiff/Appellant, appeals summary judgment in favor Defendants/ Appellees, Mike Himes and MarkWest Oklahoma Gas Company. The order is affirmed because plaintiff did not present evidentiary material demonstrating failure to use ordinary care. Affirmed. Opinion by GOREE, P.J.; SWINTON, J., and DOWNING, J., concur. June 29, 2023
Division II
120,973 – Oklahoma Attorneys Mutual Insurance Company, Plaintiff/Appellee, vs. Blaine M. Dyer and The Law Firm of Blaine M. Dyer, PLLC, d/b/a Dyer, Coatney & Schroeder, Attorneys at Law, Defendants/Appellants, and Continental Resources, Inc., James R. Dyer Jr., Robert G. Dyer, Mitchell K. Coatney, Justin Biggs, Lindsey Biggs, Coy Morgan, Albert A. Aguilar, Adam A. Aguilar, Alexander A. Aguilar, John Mark Cook, David Cory Listen, Joseph M. Tempesta, CD Morgan Ventures LLC, Enercore Resources LLC, Charger Resources LLC, Spider Resources LLC, Paramount Energy Resources LLC, Wild Fox Energy LLC, Wild Fox Energy & Land Services LLC, Black River Energy LLC, Black River Exploration LLC, Pinewick Enterprises LLC, MKC LLC, Cascata Investments LLC, Fireside Investments Inc., Maxwell Greens LLC, Deltacore Energy Inc., Ember Energy LLC, Crestwood Exploration LLC, Crestwood Energy LLC, Oklahoma Mineral Holdings LLC, EK Exploration LLC, EK Energy LLC, EK Real Estate LLC, EK Mineral Company LLC, Caliber Resources LLC, DT Resources II LLC, DT Exploration LLC, DT Exploration II LLC, DT Resources LLC, Defendants. Appeal from the District Court of Oklahoma County, Hon. Natalie Mai, Trial Judge. Blaine M. Dyer and The Law Firm of Blaine M. Dyer, PLLC, d/b/a Dyer, Coatney & Schroeder, Attorneys at Law (collectively Defendants), appeal a summary judgment granted by the trial court to Oklahoma Attorneys Mutual Insurance Company (OAMIC) in this declaratory judgment action. The issue we address is whether OAMIC is entitled to judgment as a matter of law because it had no duty to defend or indemnify Defendants in the underlying lawsuit filed by Continental Resources, Inc. After review, we agree with the trial court that OAMIC is entitled as a matter of law to the declaratory judgment it requested finding no coverage under the policy in question, and we affirm its decision. AFFIRMED. Opinion from Court of Civil Appeals, Division II, by WISEMAN, P.J.; FISCHER, J. (sitting by designation), and HUBER, J. (sitting by designation), concur. June 28, 2023
120,523 – Vickie McBee, Plaintiff/Appellant, v. Shawn Forth, Kathryn Walls, Richard Long, Shawn Forth, Inc. d/b/a Shawn Forth Custom Homes, an Oklahoma Corporation, Defendants/Appellees. Appeal from the District Court of Oklahoma County, Hon. Sheila Stinson, Trial Judge. Plaintiff Vickie McBee appeals the trial court’s order granting motions to dismiss and to compel arbitration filed by Defendants. The trial court order addressed the remaining issues challenging arbitration after remand from the Oklahoma Court of Civil Appeals. We conclude the trial court correctly granted Defendants’ motions to dismiss and compel arbitration and we summarily affirm that decision pursuant to Oklahoma Supreme Court Rule 1.202(d), 12 O.S.2021, ch. 15, app. 1. We also deem waived any issues “raised in the Petition in Error but omitted from the brief” and conclude that any “[a]rgument without supporting authority will not be considered.” Oklahoma Supreme Court Rule 1.11(k), 12 O.S.2021, ch. 15, app. 1. SUMMARILY AFFIRMED UNDER RULE 1.202(d). Opinion from Court of Civil Appeals, Division II, by WISEMAN, P.J.; BARNES, V.C.J., and BLACKWELL, J. (sitting by designation), concur. June 29, 2023
119,981 – In re the Marriage of: Kurt Weir, Petitioner/Appellee, vs. Mitzi G. Weir, Respondent/Appellant. Appeal from the District Court of Cleveland County, Hon. Jeff Virgin, Trial Judge. Mitzi G. Weir (Wife) appeals the trial court’s Decree of Dissolution of Marriage. She argues the court erred in its valuation of certain business entities and by not imposing statutory interest on her award of alimony in lieu of property division. Kurt Weir (Husband) counter-appeals the court’s decision on the valuation of a home in Scottsdale, Arizona and on issues regarding the filing of the parties’ tax returns. Based on our review of the record and applicable law, we affirm the decree as to the valuation of Weir ASC, Weir Realty, the Scottsdale property, and the tax issues. However, we reverse the decree to the extent we find the trial court abused its discretion in valuing Southwest Eye Care (SEC) and by not imposing statutory interest on Wife’s award of property division in lieu of alimony. We remand this case to the trial court to proceed in a manner consistent with our Opinion. AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division II, by HIXON, J.; BARNES, V.C.J., and WISEMAN, P.J., concur. June 29, 2023
120,242 – Brooke M. Britt, Petitioner/Appellee, v. Timothy R. Britt, Respondent/ Appellant. Appeal from the District Court of Oklahoma County, Hon. Lynn McGuire, Trial Judge. Timothy R. Britt (Husband) appeals the trial court’s order awarding Brooke M. Britt (Wife) an attorney’s fee in the amount of $12,500.00. Husband appeals another order granting his motion to modify child support. Based on our review of the facts and applicable law, we find no error and affirm the trial court’s orders. AFFIRMED. Opinion from Court of Civil Appeals, Division II, by HIXON, J.; WISEMAN, P.J., and BARNES, V.C.J., concur. June 30, 2023
121,042 – Bank of America, N.A., Plaintiff/Appellant, vs. Rebecca Lauren Clem-Sherman, Defendant/Appellee, and Unknown Spouse, if any, of Rebecca Lauren Clem-Sherman; Kane S. Sherman; Unknown Spouse, if any, of Kane S. Sherman; Bancfirst, Successor by Merger to Bank of Commerce, f/k/a Canadian State Bank; McBride & Associates, P.C.; Michael L. Mullins; Discovery Bank; United States of America, ex rel. Internal Revenue Service; State of Oklahoma, ex rel. Oklahoma Tax Commission, Defendants. Appeal from the District Court of Oklahoma County, Hon. Aletia Haynes Timmons, Trial Judge. Bank of America, N.A. (BANA) appeals a journal entry of judgment dismissing with prejudice its foreclosure action against Rebecca Lauren Clem-Sherman (Borrower). This appeal proceeds under Supreme Court Rule 1.36, 12 O.S.2023, ch, 15, app. 1, without appellate briefing. Based on our review of the record and appeal, we find BANA established a prima facie case of standing and the right to enforce the Note at the time it commenced the suit. The trial court therefore erred in granting Borrower’s motion to dismiss. The journal entry of judgment is reversed and remanded for further proceedings. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division II, by HIXON, J.; WISEMAN, P.J., and BARNES, V.C.J., concur. June 30, 2023
Division III
120,435 – Jose Manuel Mijangos, Petitioner/Appellant, v. Amanda White, Respondent/Appellee. Appeal from the District Court of Pushmataha County, Oklahoma. Honorable Jana Kay Wallace, Trial Judge. The unmarried parties have a minor child together. The trial court entered an order granting custody of the child to mother and standard visitation to father. Father appealed the order claiming the trial court erred in not awarding him equal access to the child as allowed in 43 O.S. 2011 §110.1 (shared parenting). On appeal, our standard of review limits our discretion to reversing only when the trial court’s decision is against the clear weight of the evidence. While the evidence cited by the court could have been interpreted and weighed differently, there is a rational basis for the court’s decision. Father has not met his burden to show the court’s order is clearly against the weight of the evidence or contrary to the child’s best interests. AFFIRMED. Opinion by MITCHELL, C.J.; BELL, J., and DOWNING, J. (sitting by designation), concur. June 29, 2023
120,525 – In the Matter of the Estate of Robert O’Donnell, Deceased, Terry O’Donnell and Martin O’Donnell, Appellants, v. Charlene Brackett, as personal representative of the Estate of Robert O’Donnell, Appellee. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Kurt G. Glassco, Trial Judge. Appellants, Terry O’Donnell and Martin O’Donnell (Contestants), appeal from the probate court’s order granting the motion for attorney fees and costs filed by Charlene Brackett, as personal representative of the Estate of Robert O’Donnell, deceased. Terry is decedent’s father and Martin is decedent’s brother. The probate court adjudicated Charlene Brackett (Wife) as decedent’s common‑law wife, appointed her as personal representative and admitted decedent’s last will and testament to probate. Contestants filed a post‑admission will contest wherein they challenged Wife’s status as decedent’s common‑law wife and the validity of the will. Wife incurred substantial attorney fees and expenses when she successfully defended against Contestants’ post‑admission will contest. In a post‑admission will contest, 58 O.S. 2011 §66 authorizes the probate court to award attorney fees and expenses to the prevailing party and against the unsuccessful party. Contestants claim the probate court erred when it awarded Wife the attorney fees and costs she incurred in successfully defending against the challenge to her common law marriage. To successfully contest the will and decedent’s devise and bequest of his entire estate to Wife, Contestants had to disprove the common law marriage and invalidate the will. We hold Contestants’ challenge to the common law marriage was an integral and necessary element of their will contest. Therefore, we conclude the probate court did not err or hold contrary to law when it ordered both Contestants to pay Wife’s attorney fees and expenses pursuant to §66. Wife incurred such fees and expenses when she successfully defended against Contestants challenge to Wife’s common law marriage and the admission of decedent’s will. We further hold the probate court did not abuse its discretion when it determined the reasonable amount of such attorney fees and expenses was $55,058.54. The probate court’s order is AFFIRMED. Opinion by BELL, J.; MITCHELL, C.J., concurs and PRINCE, P.J., dissents. June 29, 2023
120,780 – In the Matter of C.D., Alleged Deprived Child, William Art Guoladdle, Jr., Appellant, v. State of Oklahoma, Appellee. Appeal from the District Court of Kiowa County, Oklahoma. Honorable Rich Marsh, Trial Judge. In this action to terminate parental rights, Appellant, William Art Guoladdle, Jr., the biological Father, appeals from the trial court’s order entered upon a jury verdict terminating his parental rights to C.D., born December 24, 2017, an adjudicated deprived child. Father’s parental rights were terminated, after a jury trial, pursuant to 10A O.S. 2021 §1‑4‑904(B)(5) for Father’s failure to correct the conditions of domestic violence. Father’s rights were also terminated pursuant to §1‑4‑904(B)(17) because C.D. was younger than four (4) years of age at the time of placement and has been in foster care for at least six (6) of the twelve (12) months preceding the filing of the petition to terminate and the child cannot be safely returned to the home. The jury and the court also found by clear and convincing evidence that termination of Father’s parental rights was in C.D.’s best interest. After reviewing the record, we AFFIRM. Opinion by BELL, J.; MITCHELL, C.J., and PRINCE, P.J., concur. June 29, 2023
121,026 – John Rogne, Plaintiff/Appellant, v. City of Catoosa, Defendant/Appellee. Appeal from the District Court of Rogers County, Oklahoma. Honorable Sheila A. Condren, Trial Judge. This appeal stems from two orders entered by the trial court in favor of Defendant/Appellee, City of Catoosa (“City”). The first Order and Judgment granted the City summary judgment against the Plaintiff/Appellant, John Rogne, and the second Order denied his Motion for New Trial. Rogne claimed that he incurred damages as a result of a Cease and Desist Order issued by the City that allegedly constituted inverse condemnation. The Cease and Desist Order required Rogne to stop allowing fill dirt to be dumped on his land, but the City rescinded that Order following an administrative hearing. The trial court granted summary judgment after it determined that Rogne’s case was no longer justiciable upon the basis of the City’s rescission of the Order and the failure of Rogne to exhaust his administrative remedies. We find that there are no material facts in dispute and that Rogne did not exhaust his administrative remedies prior to filing the instant lawsuit. Therefore, the Order and Judgment granting summary judgment to the City and the Order denying the Motion for New Trial are AFFIRMED. Opinion by PRINCE, P.J.; MITCHELL, C.J., and BELL, J., concur. June 29, 2023
Division IV