Dispositions Other Than By Published Opinion | May 10, 2023

Oklahoma Court of Civil Appeals

Division I

120,289 – In Re the Marriage of: Preston Michael Pierce, Plaintiff/Appellee, v. Toni Kay Pierce, Respondent/Appellant. In post-decree contempt proceedings initiated by Toni Kay Pierce (Wife) against Preston Michael Pierce (Husband) for failure to comply with the consent Decree of Dissolution of Marriage (Decree), Wife seeks review of the trial court’s Order finding Husband guilty on two of the eight contempt allegations. Upon our review of the record on appeal and applicable law, we AFFIRM. Opinion by DOWNING, J.; GOREE, P.J., and SWINTON, J., concur. May 4, 2023


120,420 – In Re the Marriage of Jeffery McGillivray, Petitioner/Appellant, v. Jadee McGillivray, Respondent/Appellee. Appeal from the District Court of McCurtain County, Oklahoma. Honorable Kenneth R. Farley, Trial Judge. Appellant, Jeffery McGillivray, files an appeal from a Decree of Dissolution of Marriage. Appellant and Jadee McGillivray, Appellee, have one child together, J.D.M. Appellant sought sole custody, split custody or joint custody with each party having J.D.M. 50% of the time. J.D.M. was born in October of 2019, and Appellant filed for divorce shortly after in that same month. A trial was held on all issues and the trial court ordered full custody to Appellee with every other weekend visitation with Appellant from January 21, 2022, through January 1, 2023. Beginning January 1, 2023, visitation was controlled by the Modified Visitation Schedule. The trial court found, in part, that the parties did not co-parent well, and that Appellant was inflexible. Facts established that when the parties previously alternated weeks for visitation, Appellant did not allow the infant to drink milk, and utilized his girlfriend, his girlfriend’s mother, his teenage daughter, and babysitters to care for J.D.M. For those reasons and other findings of the trial court, we summarily AFFIRM the trial court’s Decree for Dissolution of Marriage pursuant to OKLAHOMA SUPREME COURT RULE 1.202(b), (d) and (e), 12 O.S. 2021, Ch. 15, App. 1.
Opinion by DOWNING, J.; GOREE, P.J., and SWINTON, J., concur. May 4, 2023


120,465 – Shalecase Energy, L.L.C. and Patriot Field Services, L.L.C., Appellants, v. BCE-Mach III, and State of Oklahoma, ex rel., Oklahoma Corporation Commission, Appellees. Appeal from the Corporation Commission of Oklahoma. Appellants, Shalecase Energy, L.L.C. and Patriot Field Services, L.L.C. (Appellants or Patriot), seek review of the Oklahoma Corporation Commission’s May 5, 2022 order finding Appellee, BCE-MACH III, L.L.C., prevailed in their clean-up pooling application filed before the Corporation Commission on September 16, 2020. The appealed order which pooled the interests of Appellants in the Mississippian and Woodford common sources of supply found there was “substantial evidence” presented to support pooling of these two common sources of supply underlying the section, the Valhalla No.2 well was properly designated as the initial unit well, and the $400/acre and 1/5 royalty was approved as the option available should Appellants elect not to participate in the initial unit well. The Commissioners found this amount to be supported by the evidence for purposes of fair market value. For the reasons provided, the order of the Oklahoma Corporation Commission is affirmed. Opinion by GOREE, P.J.; SWINTON, J., and DOWNING, J., concur. May 4, 2023


120,483 – In Re the Marriage of: Savannah Momilani Corral, Formally Tolbert, Petitioner/Appellee, V. Barry Eugene Tolbert, Respondent/Appellant. Appeal from the District Court of Comanche County, Oklahoma. Honorable Emmit Tayloe, Trial Judge. Respondent/Appellant Barry Eugene Tolbert (Father) appeals from an order denying his objection to Petitioner/Appellee Savannah Momilani Corral’s (Mother) proposed relocation of the parties’ minor child and motion to modify custody. Father argues that the trial court’s order allowing the minor child’s second relocation should be reversed because Mother’s request was not made in good faith, and the relocation was not in the minor child’s best interests. The trial court’s decision that Mother’s request was made in good faith and that relocation was in the minor child’s best interests are not against the clear weight of the evidence or contrary to law. We AFFIRM. Opinion by SWINTON, J.; GOREE, P.J., and DOWNING, J., concur. May 4, 2023


120,878 – David A. Short, Plaintiff/Appellant, v. Sweeney, Christopher, Rex & Lawson, P.C., and Jason D. Christopher, Defendants/Appellees. Appeal from the District Court of Pontotoc County, Oklahoma. Honorable Thomas K. Baldwin, Trial Judge. Plaintiff/Appellant David A. Short (Client) appeals from summary judgment entered in favor of Defendants/Appellees Jason Christopher (Attorney) and Sweeney, Christopher, Rex, & Lawson, PLLC (Firm) in Client’s legal malpractice action. The material facts are undisputed and support the trial court’s finding that Attorney and Firm were entitled to judgment as a matter of law because Client’s claims were barred by the expiration of the limitations period and Client failed to show a dispute of the material fact that he would have succeeded in the underlying suit but for Attorney’s omission. We affirm. Opinion by SWINTON, J.; DOWNING, J., concurs and GOREE, P.J., concurs in part and dissents in part. May 4, 2023


121,087 – Comanche Exploration Company, L.L.C., an Oklahoma limited liability company, Plaintiff/Appellant, v. Shale Properties, LLC, an Oklahoma limited liability company, Defendant/Appellee.  Appeal from the District Court of Major County, Oklahoma.  Honorable Tim Haworth, Trial Judge. Plaintiff/Appellant, Comanche Exploration Company L.L.C. (Comanche), appeals from the trial court’s Journal Entry granting a Motion to Dismiss for failure to state a claim upon which relief can be granted.  Comanche filed suit against Defendant/Appellee, Shale Properties, L.L.C. (Shale) for Nuisance, Private Taking and Subsurface Trespass, Abatement/Mandatory Injunction and Preliminary and Permanent Injunction on September 15, 2022.  In the Petition, Comanche outlined facts stating that Shale was assigned the operations of the Ranson Well, a saltwater disposal well, in January of 2021.  In November of 2021, Comanche drilled the George Well and encountered saltwater that it alleges is coming from the Ranson Well.  Comanche alleged the Ranson Well disposal activities were the source of the encroaching saltwater encountered while drilling its George Well.  Comanche adequately pled facts and grounds for which relief could be granted.  For those reasons, this case is REVERSED and REMANDED.  Opinion by DOWNING, J.; GOREE,P. J., and SWINTON, J., concurs. May 4, 2023


Division II

120,953 – The State of Oklahoma ex rel. Department of Education, Plaintiff/Appellee, v. Patrick L. McKenzie Ministries, Inc., Defendant/Appellant. Appeal from the District Court of Oklahoma County, Hon. Richard Ogden, Trial Judge. Defendant appeals from orders of the district court dismissing its affirmative defenses and counterclaim and granting summary judgment in favor of Plaintiff. Defendant’s affirmative defenses and counterclaim rest on a collateral attack of a final agency order in a prior proceeding. Because the arguments raised in that attack are untimely, and because no jurisdictional infirmities appear on the face of the prior proceeding’s judgment role provided by Defendant, we affirm the district court’s orders granting Plaintiff’s motion to dismiss and its uncontested motion for summary judgment. AFFIRMED. Opinion from Court of Civil Appeals, Division II, by BARNES, V.C.J.; WISEMAN, P.J., and HIXON, J., concur. May 9, 2023


120,939 – The State of Oklahoma ex rel. Department of Education, Plaintiff/Appellee, v. Lil’ Jay Child Development Center, LLC, and Cynthia Gregory, Defendants/Appellants.  Appeal from the District Court of Oklahoma County, Hon. R. Trent Pipes, Trial Judge.  Defendants appeal from orders of the district court dismissing their affirmative defenses and counterclaim and granting summary judgment in favor of Plaintiff.  Defendants’ affirmative defenses and counterclaim rest on a collateral attack of a final agency order in a prior proceeding.  Because that order is not facially invalid, we affirm the district court’s orders granting Plaintiff’s motion to dismiss and its uncontested motion for summary judgment.  AFFIRMED.  Opinion from Court of Civil Appeals, Division II, by BARNES, V.C.J.; WISEMAN, P.J., and HIXON, J., concur. May 9, 2023


Division III

120,590 – In the Matter of H.H. and D.W., Children Adjudicated to be Deprived, Mischa White, Appellant, v. State of Oklahoma, Appellee. Appeal from the District Court of Tulsa County, Oklahoma.  Honorable Julie Doss, Trial Judge. Appellant, Mischa White (“Mother”), appeals the trial court’s Order Terminating Parental Rights as to her minor children, H.H. and D.W.  Mother claims on appeal that the State failed to provide reasonable efforts to reunite the family; that the State did not prove by clear and convincing evidence that termination of Mother’s parental rights was in the best interest of the children; that the State did not prove by clear and convincing evidence that Mother had abused or neglected the children; and, that the trial court abused its discretion in allowing hearsay testimony and witnesses to testify to things without personal knowledge.  We have reviewed the record and applicable law and find that the order of the trial court is supported by clear and convincing evidence and that no abuse of discretion occurred.  Thus, we AFFIRM the Order Terminating Parental Rights in this case. Opinion by PRINCE, P.J.; MITCHELL, C.J., and BELL, J., CONCUR. May 5, 2023


120,788 – In the Matter of N.E., Adjudicated Deprived Child, Michael Evans and Marlaina Evans, Appellants, v. State of Oklahoma, Appellee. Appeal from the District Court of Hughes County, Oklahoma.  Honorable Trisha D. Smith, Trial Judge.  In this action to terminate parental rights, Appellants, Michael Evans and Marlaina Evans, the biological parents, appeal from the trial court’s order entered upon a jury verdict terminating their parental rights to N.E., born December 20, 2011, an adjudicated deprived child.  Parents’ parental rights to N.E. were terminated, after a jury trial, pursuant to 10A O.S. 2021 §1‑4‑904(B)(2), for willful abandonment, §1‑4‑904(B)(5) for failure to correct the conditions of substance abuse, mental health instability, failure to maintain a substantial relationship with the child, and failure to financially support the child.  Parents’ rights were also terminated pursuant to §1‑4‑904(B)(7) and (B)(15) for Parents’ willful failure to support the child and for the substantial erosion of the parent/child relationship due to Parents’ actions.  Parents’ rights to the child were also terminated pursuant to 10A O.S. 2021 §1‑4‑904(B)(16) because N.E. was four (4) years of age or older at the time of placement and has been in foster care for fifteen (15) of the most recent twenty‑two (22) months preceding the filing of the petition to terminate.   The jury and the court also found by clear and convincing evidence that termination of Parents’ parental rights was in the child’s best interests.  After reviewing the record, we AFFIRM.  Opinion by BELL, J.; PRINCE, P.J., and MITCHELL, C.J., CONCUR. May 5, 2023


120,842 – Charles F. Pringle and Laurin Pringle, Plaintiffs/Appellants, v. Oklahoma Tax Commission, Defendant/Appellee. Appeal from the District Court of Pottawatomie County, Oklahoma.  Honorable John G. Canavan, Trial Judge. Following the advice of their tax preparer, Charles and Laurin Pringle (the Pringles) did not file an Oklahoma tax return for 2014.  In 2020, the Oklahoma Tax Commission (OTC) issued a proposed tax assessment regarding the Pringles’ 2014 state income taxes based on information obtained in part from the Internal Revenue Services (IRS).  Pursuant to statute, the OTC had authority ‑ at any time ‑ to determine and assess the amount of tax due from the Pringles because they failed to file a tax return.  If the Pringles believed the OTC erred in its tax assessment, they had sixty days to file a written protest.  In 2021, over a year and a half later, the OTC received a letter from the Pringles objecting to the proposed tax assessment, however, the assessment had become final after it was not contested within the statutory time period.  As a result of the tax assessment becoming final, the OTC did not have jurisdiction over, or authority to consider, the Pringles’ protest.  Additionally, the trial court did not have jurisdiction to hear the Pringles’ case because the Pringles failed to exhaust their administrative remedies through the OTC by protesting the proposed assessment within sixty days.  The Pringles sought relief against the IRS; however, the IRS was not a named party so the court did not have jurisdiction over the IRS.  The Pringles argue their rights under the Fourth Amendment of the United States Constitution were violated when the IRS disclosed the Pringles’ taxpayer return information to the OTC.  The government did not unreasonably search or seize the Pringles’ information as the law permits the IRS to disclose information to the OTC.  After reviewing the pleadings on appeal and the applicable law, we conclude the OTC and the trial court lacked jurisdiction to hear the Pringles’ petition, and therefore, the court properly granted the OTC’s motion to dismiss the Pringles’ lawsuit and properly denied the Pringles’ motion to reconsider. Opinion by MITCHELL, C.J.; PRINCE, P.J., and BELL, J., CONCUR. May 5, 2023


Division IV

119,826 – Grey Aldridge and Jamie Aldridge, Plaintiffs/Appellants, vs. R&R Homes, LLC, Defendant/Appellee.  Appeal from Order of the District Court of Logan County, Oklahoma, Hon. Louis A. Duel, Trial Judge.  Appellants Grey and Jamie Aldridge appeal the district court’s judgment in favor of Appellee R&R Homes, LLC in this home construction dispute.  The district court found that a purchase agreement and limited warranty were enforceable barring the Aldridges’ tort and non-warranty contract claims.  The court also found that the Aldridges had failed to show any fraud by R&R with respect to this transaction.  We find that the district court properly granted summary judgment and affirm.  AFFIRMED.  Opinion from Court of Civil Appeals, Division IV, by FISCHER, J.; BARNES, V.C.J. (sitting by designation), and HIXON, J. (sitting by designation), concur. May 5, 2023