Dispositions Other Than By Published Opinion | Nov. 2, 2022
Oklahoma Court of Civil Appeals
Division I
120,294 – Trayveon Sheppard, Plaintiff/Appellant, v. NC Eventos USA, LLC; Ting Ventures Eat, LLC; and Ting & Ting, LLC, Defendants/Appellees. Appeal from the District Court of Tulsa County, Oklahoma. Honorable William J. Musseman, Trial Judge. Plaintiff/Appellant, Trayveon Sheppard, appeals from three trial court orders: two orders separately dismissing Plaintiff’s actions against Defendants/Appellees Ting Ventures Eat, LLC, and Ting & Ting, LLC, and one order granting summary judgment to Defendant/Appellee NC Eventos USA, LLC. On April 25, 2015, Plaintiff suffered a gunshot wound from a security guard while he was attending a concert at an event center in Tulsa. At the time of the shooting, the mall was owned by Ting Ventures Eat and was managed by Ting & Ting. NC Eventos leased and operated the event center. During the concert, security officer DeMarco Brown returned the gunfire of a concert‑goer and struck Plaintiff, who was merely seeking cover in the parking lot. On April 20, 2017, Plaintiff filed an action naming the former property owner as a defendant. Neither Ting entity was named. Plaintiff filed an amended petition on May 24, 2017, adding Ting Ventures Eat as a defendant. The amended petition did not name Ting & Ting as a defendant. Ting Ventures Eat was not served within 180 days of the filing of the original petition. Plaintiff sought and was granted an extension of time to serve Ting Ventures Eat with the amended petition, which was served on November 9, 2017. On July 22, 2019, while dispositive motions by Ting Ventures Eat and NC Eventos were pending, Plaintiff dismissed Case No. CJ‑2017‑1543 without prejudice. He filed the present action one year later on July 22, 2020. Plaintiff’s new petition named again as defendants Ting Ventures Eat and NC Eventos, and sued for the first time Ting & Ting. The petition seeks damages for negligence, negligent training and supervision, and premises liability. We hold Ting Ventures Eat was properly dismissed because Plaintiff failed to satisfy the timeliness requirement of the relation back doctrine at §2015(C); did not show Ting Ventures Eat had imputed notice of the suit due to an identity of interest with NC Eventos; and failed to establish the discovery rule tolled the two‑year statute of limitations. We hold Ting & Ting was properly dismissed because Plaintiff did not satisfy the relation back doctrine requirements regarding Ting Ventures Eat. We hold the trial court correctly granted summary judgment to NC Eventos on Plaintiff’s negligence claims because nothing in the record supports Plaintiff’s assertion that Brown was acting as an employee or agent of NC Eventos when he shot Plaintiff. We also hold the trial court properly granted summary judgment to NC Eventos on Plaintiff’s premises liability claim. The trial court’s two orders dismissing the Ting defendants and the order granting summary judgment to NC Eventos are affirmed. AFFIRMED. Opinion by BELL, P.J.; DOWNING, J., and GOREE, J., CONCUR. Oct. 26, 2022
120,439 – Mid America Mortgage, Inc., an Ohio Corporation, Plaintiff/Appellee, v. Kristopher W. Thompson, Occupant 1 (Real Name Unknown), Defendant/Appellant, and Kalyhn Thompson, Occupant 2 (Real Name Unknown), Defendant. Appeal from the District Court of Comanche County, Oklahoma. Honorable Emmit Tayloe, Trial Judge. In this mortgage foreclosure action, Defendant/Appellant, Kristopher W. Thompson, appeals from the trial court’s judgment and decree of foreclosure in favor of Plaintiff/Appellee, Mid America Mortgage, Inc., an Ohio Corporation (Mid America). Thompson is the obligor on the secured promissory note, which is the subject of this action. This is the second appeal in this mortgage foreclosure proceeding. In Appellate Case No. 117,668, the appellate court reversed and remanded the trial court’s summary judgment in favor of Mid America on the basis that there was no allonge promissory note endorsement showing Mid America was the holder of and entitled to enforce the note. After mandate, Mid America filed a second amended and supplemental petition with attached documents showing a chain of note indorsements from the original lender to Mid America. Mid America thereafter filed a motion for summary judgment in its favor. Thompson did not file a response or objection to the motion for summary judgment. At the hearing, Mid America produced the original blue ink promissory note showing an indorsement from JPMorgan Chase Bank to Mid America for the court’s inspection. The trial court reviewed the original note and determined the copy of the note attached to the amended petition was an exact duplicate of the original blue ink note. The court determined Mid America was the holder of the note when the case was filed and that Mid America had standing to enforce the note. Thompson verbally restated his objection to Mid America’s standing and pointed out alleged discrepancies with note and allonge note endorsements. Thompson admitted he received copies of the pleadings and that he has not made a mortgage payment since 2016. The court found Mid America corrected the reason for the reversal of the first summary judgment and that there are no material facts in dispute. The court granted judgment to Mid America. After de novo review of the post‑mandate proceeding, we affirm the trial court’s decree and judgment. Opinion by BELL, P.J.; DOWNING, J., and GOREE, J., CONCUR. Oct. 26, 2022
Division II
Division III
120,660 – Karen L. Pollet, Plaintiff/Appellant, v. J.C. Humphrey Abstract Company and Guarantee Abstract Company d/b/a Guarantee Abstract and Insurance Company, Defendants/Appellees. Appeal from the District Court of Garfield County, Oklahoma. Honorable Tom L. Newby, Trial Judge. Karen L. Pollet filed this lawsuit against an abstract enterprise alleging that it was negligent when it failed to ensure that the Deed to her home was conveyed to her and her late husband as joint tenants with right of survivorship as opposed to tenants in common. This action was initiated after the three children of Pollet’s late husband from a former marriage were awarded a one‑quarter interest in the Pollets’ home by a probate court following his death. The Defendants/Appellees, are J.C. Humphrey Abstract Company and Guarantee Abstract Company d/b/a Guarantee Abstract and Insurance Company (collectively “Humphrey Abstract”). Pollet appeals a Journal Entry of Judgment Granting Defendants’ Motion to Dismiss. The trial court, pursuant to 12 O.S. § 2012(B)(6), granted the Motion to Dismiss on the basis that, from the face of the Petition, it was clear that the action was barred by the statute of limitations. We AFFIRM the dismissal of the lawsuit with prejudice. Opinion by PRINCE, P.J.; MITCHELL, V.C.J., and SWINTON, J., CONCUR. Oct. 21, 2022
119,676 – In Re the Marriage of: Samantha Jo Marion, Petitioner/Appellee, v. Sean Leslie Power, Respondent Appellant. Appeal from the District Court of Washington County, Oklahoma. Honorable Kyra K. Franks, Trial Judge. This case concerns a divorce decree that was entered by default at a time that the Respondent/Appellant, Sean Leslie Power, was incarcerated in the County Jail of the County where the divorce proceeding was pending. Power was being detained while awaiting trial on a charge of first‑degree arson. He represented himself, pro se, during the divorce proceedings and had filed multiple submissions prior to the trial, including one requesting that the trial court make arrangements for him to appear at one of the trial settings either in person or via video. That setting was continued and Power did not renew his request to appear via video. At the conclusion of trial, the trial court found Power in default, and entered a Default Decree of Dissolution of Marriage. Power moved the trial court to reconsider and set aside the judgment. The trial court denied Power’s motion and Power now appeals that ruling, arguing, in part, that his due process rights were allegedly violated when the trial court “breached [his] . . . right to attend Court in any capacity . . . and that the trial courts [sic] findings do not support the evidence”. Based on our independent, non‑deferential review of the record, we AFFIRM the trial court’s order that denied Power’s Motion to Reconsider. Opinion by PRINCE, P.J.; MITCHELL, V.C.J., and SWINTON, J., concur. Oct. 28, 2022
120,347 – Maria Karim, Petitioner, v. Multiple Injury Trust Fund and the Oklahoma Workers’ Compensation Court of Existing Claims, Respondents. Appeal from the Workers’ Compensation Court. Honorable Margaret Bomhoff, Trial Judge. This appeal stems from an order by the Workers’ Compensation Court of Existing Claims denying relief to a claimant due to a lack of jurisdiction over the Multiple Injury Trust Fund (MITF). The issue presented for review is whether the statutes in effect at the time of the claimant’s injury permit a Crumby finding (preexisting injury that had not been previously adjudicated) to be used by a claimant to qualify as a “physically impaired person” for purposes of establishing jurisdiction over the MITF and qualifying for benefits. After de novo review, we find that the law precludes the use of the Crumby finding to establish jurisdiction, and the court’s order denying claimant’s application for benefits should be SUSTAINED. Opinion by MITCHELL, V.C.J.; PRINCE, P.J., and SWINTON, J., concur. Oct. 28, 2022
120,411 – In the Matter of L.L., Alleged Deprived Child, Aleshia Henderson, Appellant v. State of Oklahoma, Appellee. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Martha Rupp Carter, Trial Judge. Aleshia Henderson, the natural mother, seeks review of the trial court’s order terminating her parental rights to L.L., a minor child born August 25, 2019. Because the child is an Indian Child as defined by the Federal and State Indian Child Welfare Acts (ICWA), the trial court’s burden, and our standard on review, is whether the termination of the mother’s parental rights is supported by evidence beyond a reasonable doubt that the mother’s continued custody of the child is likely to result in serious emotional or physical damage to the child. At trial to terminate the mother’s parental rights on April 12, 2022, the court found the State of Oklahoma proved beyond a reasonable doubt that the statutory stay in foster care — at least six of the twelve months preceding the filing of the petition to terminate mother’s parental rights ‑‑‑ was met as the child entered the foster case system on August 28, 2019 and remained in foster care for over thirty‑one months prior to trial. Accordingly, we AFFIRM the trial court’s ruling terminating the mother’s parental rights to the child. Opinion by MITCHELL, V.C.J.; PRINCE, P.J., and SWINTON, J., concur. Oct. 28, 2022
Division IV
119,751 – In the Matter of J.K., Alleged Deprived Child, Sheldon Hicks, Appellant, vs. State of Oklahoma, Appellee. Appeal from the District Court of Oklahoma County, Hon. Sheila D. Stinson, Trial Judge. Father, Sheldon Hicks, appeals a judgment on a jury verdict terminating his parental rights to his minor child, J.K. The determination that Father’s rights should be terminated pursuant to 10A O.S. § 1-4-904(A) and (B)(12)(OSCN 2022) is supported by clear and convincing evidence. The termination of Father’s parental rights is affirmed. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by FISCHER, C.J.; BARNES, P.J., and HIXON, J., concur. Oct. 27, 2022
119,114 (Companion with Case No. 120,148) – Robin Carter and Kimberly Carter, Plaintiffs/Appellants, vs. Randy C. Parsons, Danny Childers, and Kailey Jane Fish, Defendants/Appellees. Appeal from Order of the District Court of Pottawatomie County, Oklahoma, Hon. John G. Canavan, Trial Judge. The Carters appeal district court’s order lifting a temporary injunction, entered to prevent the defendants from selling or otherwise disposing of the Carters’ personal property remaining on the premises following a mortgage foreclosure and sale of the residential property. The Carters had requested, due to an alleged lack of funds or a sufficient credit rating, that the district court modify the terms of the temporary injunction they received and waive the provision of 12 O.S.2011 § 1392 requiring that they “give an undertaking, with sufficient surety” or post bond to maintain the injunction. The district court determined that it had no discretion to waive the statutory bond requirement. The Carters appealed, asserting that the bond requirement is an unconstitutional violation of their right to equal protection; and the district court should have the discretion to waive the bond requirement when it appears necessary for the administration of justice and equity. Considering the effect of the pre-decisional-stage orders entered by the Supreme Court in this appeal and the effect of district court proceedings occurring after the Carters initiated this appeal, it appears that the issues raised regarding the bond requirement have become moot. The Carters sought the injunction to preserve the “status quo,” specifically, to prevent the sale or disposal of their personal property during the pendency of their district court action. They achieved that result. The appellate court may dismiss an appeal, “on its own motion,” at any stage of the appellate process. Okla. Sup. Ct. R. 1.6(c)(1), 12 O.S. 2011, ch. 15, app. 1. “An appeal may be dismissed because of . . . mootness.” Id. DISMISSED AS MOOT. Opinion from Court of Civil Appeals, Division IV by FISCHER, C.J.; BARNES, P.J., and HIXON, J., concur. Oct. 27, 2022
120,047 – In the Matter of M.A.W.D. and R.D.W., Adjudicated Deprived Children: Kimara Melinda Watts Dalke, Appellant, v. State of Oklahoma, Appellee. Appeal from the District Court of Oklahoma County, Hon. Mark McCormick, Trial Judge. In this termination of parental rights proceeding, Appellant (Mother) appeals from an order terminating her parental rights to her minor children, M.A.W.D. and R.D.W. We conclude the finding that Mother was given more than three months to correct the conditions, in satisfaction of 10A O.S. Supp. 2015 § 1-4-904(B)(5)(b), is supported by clear and convincing evidence. We also conclude, based on our review of all the evidence, that the statutory requirements that, with regard to the termination of Mother’s parental rights to M.A.W.D., she “has failed to correct the condition[s] which led to the deprived adjudication of the child,” § 1-4-904(B)(5)(a), and, with regard to the termination of her parental rights to R.D.W., the conditions “that led to the deprived adjudication has been the subject of a previous deprived adjudication of this child or a sibling of this child” and Mother “has been given an opportunity to correct the conditions which led to the determination of the initial deprived child,” § 1-4-904(B)(14), are also supported by clear and convincing evidence. We conclude clear and convincing evidence supports the finding that termination is in the best interest of the minor children. In addition, we are unpersuaded by Mother’s argument that a certain Oklahoma Department of Human Services employee knew Mother’s individualized service plan was ineffective and did nothing to alter or modify the plan. Finally, we conclude the facts of this case do not support a procedural due process argument based on a lack of notice of the conditions to be corrected. Therefore, we affirm the order of the district court terminating Mother’s parental rights to her minor children, M.A.W.D. and R.D.W. AFFIRMED. Opinion from Court Civil Appeals, Division IV, by BARNES, P.J.; FISCHER, C.J., and HIXON, J., concur. Oct. 28, 2022