Dispositions Other Than By Published Opinion | June 22, 2022

Oklahoma Court of Civil Appeals

Division I

119,791 — Tulsa Ambulatory Procedure Center, LLC. Oklahoma Pain & Wellness Center, PLC and Precision Analysis Laboratory, LLC, Plaintiffs/Counterclaim/Defendants/Appellants, v. Todd Olmstead, Defendant/Counterclaim/Plaintiff and  Third-Party Plaintiff/Appellee, v. Dr. Jayen Patel, Third-Party, Defendant.  Appeal from the District Court of Tulsa County, Oklahoma.  Honorable Rebecca B. Nightingale, Trial Judge. Appellants, Tulsa Ambulatory Procedure Center, LLC, Oklahoma Pain & Wellness Center, PLC, and Precision Analysis Laboratory, LLC bring this appeal contending that their motion for new trial should have been granted.  The trial resulted in a judgment in favor of the Appellee, Todd Olmstead, on his counterclaim to recover a bonus based on a percentage of revenue  generated for Appellants through his business development efforts.  The trial court declined to determine whether the contract provision violated Oklahoma’s Healthcare Anti-Kickback law, 63 O.S. 2022 §1-742(A)(1) concluding the defense was waived when not raised in an answer.  Courts may not enforce contractual provisions that were made in violation of law.  Therefore, it was an abuse of discretion to leave the defense of legal invalidity undetermined when it was raised before trial in a motion for summary judgment and in a proposed pretrial order.  The order denying the motion for new trial is reversed.  Opinion by GOREE, J.; BELL, P.J., and MITCHELL, V.C.J. (sitting by designation) concur. June 16, 2022

Division II

118,267 — Derrick R. Scott, Petitioner/Appellant, vs. Candice J. Foster, Respondent/Appellee. Appeal from the District Court of Blaine County, Hon. Paul K. Woodward, Trial Judge. Derrick Scott appeals a trial court order granting Candice Foster’s motion to dismiss Scott’s petition seeking an adjudication of paternity as to Foster’s minor child, which the trial court treated as a motion for summary judgment, and awarding Foster attorney’s fees. Upon review, we agree with the district court that Scott’s petition was filed out of time and therefore affirm the grant of judgment in favor of Foster. However, we reverse the award of attorney fees to Foster. AFFIRMED IN PART AND REVERSED IN PART. Opinion from the Court of Civil Appeals, Division II PER CURIAM; RAPP, J., concurs, WISEMAN, P.J., concurs, except as to Part III.A, in which she concurs in result, BLACKWELL, J., concurs except as to Part III.B, to which he dissents. June 16, 2022

Division III

119,500 — Valshay Fields, Petitioner/Appellee, v. Tristan Fields, Respondent/Appellant. Appeal from the District Court of Tulsa County, Oklahoma.  Honorable Tammy Bruce, Trial Judge. In this post‑divorce proceeding, Father appeals from the trial court’s order awarding custody to Mother of their thirteen year‑old child following trial in October 2020.  Father asserts it was error for the court to decline to interview the child, however, the court found that it was not in the child’s best interests to testify and that the child’s preference to live with Father had been conveyed by the guardian ad litem. The court did not follow the recommendation of the guardian ad litem, relying instead on GAL’s testimony that both parents love the child and would provide a safe, healthy home for him. The guardian ad litem stated that the child wavered between wanting to live with Mother and Father, and that the child’s preference to live with Father was based, in large part, on a desire to be near his friends. After spending the first ten years of his life with Mother, the child had been living with Father for the previous two years because Father received a default custody order.  The court found that Father intentionally listed Mother’s address incorrectly to obtain the default order and that Father’s testimony “lacked credibility”.  Based on this finding, it is clear the trial court had reservations about Father’s honesty and the validity of his testimony.  The court also found that Mother was more likely than Father to facilitate frequent and continuing contact with the child. We do not find evidence of an abuse of discretion or that the decision to grant custody to Mother to be clearly contrary to the weight of the evidence. Opinion by MITCHELL, V.C.J.; PRINCE, P.J., and SWINTON, J., CONCUR. June 20, 2022

120,020 — In the Matter of the Adoption of A.L.G.: A Minor Child, Gabrielle Baker, Respondent/Appellant, v. Erik Lee Orr and Laura Marie Orr, Petitioners/Appellees. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Kurt G. Glassco, Trial Judge. Petitioners/Appellees, Erik and Laura Orr, petitioned to adopt A.L.G., a minor child, without the consent of her parents, Gabrielle Baker (“Baker”) and Jonathan Gary.  A.L.G. was born during August, 2012, and the Orrs were appointed as guardians of the child during December, 2012.  Gary consented to the adoption but Baker objected. The trial court granted the Application for a determination that the child was eligible for adoption without consent based on Baker’s failure to support the minor child.  In a separate hearing, the trial court held that the adoption was in the best interests of the child. Baker appeals, claiming that the evidence was insufficient to justify proceeding with the adoption without her consent and that, in addition, the evidence presented regarding her husband’s deprived child proceeding, involving a child unrelated to A.L.G., was highly prejudicial to her. We find that Baker failed to undertake her statutory duty as a parent to support A.L.G. and viewed that such duty to be the guardians’ responsibility.  Furthermore, even if it was error to admit evidence of the deprived child proceeding, other evidence in the record was sufficient to support, by clear and convincing evidence, that adoption is in the child’s best interests.  The trial court committed no error and the Final Decree of Adoption is AFFIRMED. Opinion by PRINCE, P.J.; MITCHELL, V.C.J., and SWINTON, J., CONCUR. June 20, 2022

119,544 — (Comp. w/ 118,541) Midwest Home Maintenance Incorporated, an Oklahoma Corporation, Plaintiff/Appellee, v. Threasa Ann Martin, an individual, Defendant/Appellant. Appeal from the District Court of Oklahoma County, Oklahoma.  Honorable Thomas E. Prince, Trial Judge. Plaintiff/Appellee Midwest Home Maintenance, Inc. (MHM) filed suit against Defendant/Appellant Threasa Ann Martin seeking to quiet title to certain real property.  Martin appeals from the trial court’s orders denying her motion to set aside an earlier order denying Martin’s motion to dismiss and denying her second motion to dismiss.  We find no abuse of discretion and AFFIRM. Opinion by SWINTON, J.; MITCHELL, V.C.J., and GOREE, J. (sitting by designation), CONCUR. June 17, 2022

120,240 — Amram, LLC, an Oklahoma limited liability company, Plaintiff/Appellee, v. Lori Ann Visek, an individual; and A.H., a minor; and G.H., a minor, Defendants/Appellants.  Appeal from the District Court of Canadian County, Oklahoma. Honorable Paul Hessee, Trial Judge. Defendants/Appellants Lori Ann Vicsek, A.H., a minor, and G.H., a minor, appeal from an order granting summary judgment in favor of Plaintiff/Appellee AMRAM, LLC in a quiet title action involving a piece of property located in Canadian County.  Defendants argue that the property was improperly conveyed by quit claim deed in conflict with the decree of divorce entered between Defendant Lori Vicsek and Patrick Vicsek in 2010.  We find that there are issues of material fact not yet determined by the trial court precluding summary judgment.  We therefore REVERSE AND REMAND the matter for further proceedings.  Opinion by SWINTON, J.; MITCHELL, V.C.J., and PRINCE, P.J., concur. June 21, 2022

Division IV

119,909 — In the Matter of the Adoption of E.S., a Minor Child, Charles Smith, Appellant, vs. Jacob Warner, Appellee.  Appeal from the District Court of Pottawatomie County, Hon. Tracy McDaniel, Trial Judge.  Appellant Charles Smith (Father) appeals a final decree of adoption of minor child, E.S., by stepfather Jacob Warner (Warner).  Warner and biological mother, Ashley Durham (Mother) were not married when Warner filed his Petition for Adoption or at the time of the hearing determining that Father’s consent to the adoption was not required.  Warner and Mother were married by the time of subsequent hearing on the minor child’s best interests and the trial court’s final decree of adoption.  Father asserts Warner was not eligible to adopt E.S. at the time his petition was filed pursuant to 10 O.S.2011, § 7503-1.1, and that the trial court therefore did not have jurisdiction over the adoption proceedings.  The Court holds the trial court had jurisdiction to consider Warner’s adoption petition, that Warner was eligible to adopt E.S. at the time the trial court granted the adoption, and affirms the court’s Final Decree of Adoption.  AFFIRMED.  Opinion from Court of Civil Appeals, Division IV, by HIXON, J.; FISCHER, C.J., and BARNES, P.J., concur. June 20, 2022

119,795 — In the Matter of the Estate of Patricia Joy Smith, Deceased.  Timothy P. Smith, Plaintiff/Appellant, vs. H. Leon Smith, Administrator of the Estate of Patricia Joy Smith, Defendant/Appellee.  Appeal from the District Court of Cleveland County, Hon. Bethany Stanley, Trial Judge.  Appellant Timothy P. Smith (Tim) appeals an award of attorney fees against him personally and in favor of H. Leon Smith (Leon), administrator of the estate of Patricia Joy Smith (Patricia or Decedent).  By previous order, the trial court determined that, prior to her death, Patricia was unduly influenced and coerced by Tim to transfer to Tim her interest in certain real property held in joint tenancy with right of survivorship with Leon.  Though the transfer was discovered and ostensibly corrected prior to Patricia’s death, Tim claimed in the probate that Patricia’s interest in the property was one of a tenant in common and passed to her estate, in which he holds an interest.  The trial court awarded Leon costs and fees incurred in obtaining the order determining title to those real properties in the probate, and entered judgment against Tim for $42,482.17 on August 3, 2021.  We find the trial court erred by entering an award for fees and costs without statutory support or findings in support of an award of sanctions.  On review, we reverse that portion of the trial court’s August 3, 2021 Order awarding Leon fees incurred in determining title to the subject real properties.  REVERSED.  Opinion from Court of Civil Appeals, Division IV, by HIXON, J.; FISCHER, C.J., and BARNES, P.J., concur. June 16, 2022

120,038 — Enerquest Oil & Gas, L.L.C., and Braxton Minerals III, LLC, Plaintiffs/ Appellants, vs. Robert Scott Bauer, Braxton Acquisitions, LLC, Braxton Energy, LLC; and Braxton Minerals II, LLC, Defendants/Appellees, and Braxton Minerals-Appalachia, LLC, John Bradley Ashburn, Additional Defendants.  Appeal from the District Court of Oklahoma County, Hon. Anthony L. Bonner, Jr., Trial Judge.  EnerQuest Oil & Gas, LLC and Braxton Minerals III, LLC (collectively, Plaintiffs) appeal an order granting Robert Scott Bauer, Braxton Acquisitions, LLC, Braxton Energy, LLC, and Braxton Minerals II, LLC’s (collectively, Defendants) motion to vacate a default judgment.  We find no abuse of discretion by the trial court in vacating the default judgment on jurisdictional grounds.  The trial court’s order is therefore affirmed.  AFFIRMED.  Opinion from Court of Civil Appeals, Division IV, by HIXON, J.; FISCHER, C.J., and BARNES, P.J., concur. June 21, 2022