Vol. 1 | No. 3 | Jan 20, 2021
Supreme Court of Oklahoma
No published opinions this week.
Court of Criminal Appeals in the State of Oklahoma
Jeremy Allen Markham v. The State of Oklahoma
Case No. F-2019-718
Jeremy Allen Markham, Appellant, was tried by jury for the crime of Sexual Abuse of a Child Under 12 (Counts 1 and 2) in Case No. CF-2018-317 in the District Court of Pottawatomie County. The jury returned verdicts of guilty and recommended as punishment life imprisonment as to each count. The trial court sentenced accordingly and ordered the counts to run consecutively. From this judgment and sentence Jeremy Allen Markham has perfected his appeal. AFFIRMED. OPINION BY: Rowland, V.P.J.; Kuehn, P.J., concurs in part and dissents in part; Lumpkin, J., specially concurs; Lewis, J., concurs in results; Hudson, J., concurs.
Kenneth Ray Johnstone, II v. The State of Oklahoma
Case No. F-2019-394
On May 22, 2017, Appellant Johnstone entered a no contest plea in Kay County Case No. CF-2017-59. Sentencing was deferred pending completion of the Kay County Drug Court Program. On April 3, 2018, the State filed an Application to Terminate Johnstone from Drug Court. On May 22, 2019 the Honorable David R. Bandy, Associate District Judge, terminated Johnstone’s Drug Court participation and sentenced him as specified in his plea agreement. From this judgment and sentence Johnstone appeals. Johnstone’s termination from Drug Court is AFFIRMED. OPINION BY: Rowland, V.P.J.; Kuehn, P.J., concurs; Lumpkin, J., concurs; Lewis, J., concurs; Hudson, J., concurs.
Ricky Eugene Spencer v. The State of Oklahoma
Case No. F-2019-588
Ricky Eugene Spencer, Appellant, was tried by jury for the crime of Shooting with Intent to Kill (Counts 1 and 2), each After Former Conviction of a Felony in Case No. CF-2016-1165 in the District Court of Muskogee County. The jury returned verdicts of guilty and recommended as punishment twenty years imprisonment as to each count. The trial court sentenced accordingly and ordered the sentences on Counts 1 and 2 to run consecutively and suspended all but the first ten years on Count 2. From this judgment and sentence Ricky Eugene Spencer has perfected his appeal. VACATED and REMANDED for a new trial. OPINION BY: Rowland, V.P.J.; Kuehn, P.J., specially concurs; Lumpkin, J., dissents; Lewis, J., concurs; Hudson, J., concurs.
Darryl Maurice Thomas, Jr. v. The State of Oklahoma
Case No. F-2019-480
Darryl Maurice Thomas, Jr., Appellant, was tried by jury for the crime of First Degree Felony Murder (Count 1) and Possession of a Firearm After Former Felony Conviction (Count 2), each after former conviction of a felony in Case No. CF-2016-1275 in the District Court of Muskogee County. The jury returned verdicts of guilty and recommended as punishment life imprisonment on Count 1 and five-years imprisonment on Count 2. The trial court sentenced accordingly and ordered the sentences to run concurrently with each other. From this judgment and sentence Darryl Maurice Thomas, Jr. has perfected his appeal. AFFIRMED. The restitution order is VACATED and the matter REMANDED for a proper hearing on restitution. Thomas's Notice of Extra Record Evidence Supporting Propositions III, V, and VIII and/or Alternatively Application for Evidentiary Hearing on Sixth Amendment Claims is DENIED. OPINION BY: Rowland, V.P.J.; Kuehn, P.J., specially concurs; Lumpkin, J., concurs; Lewis, J., concurs in results; Hudson, J., concurs .
Judge Temple v. The State of Oklahoma
Case No. F-2019-406
Judge Temple, Appellant, was tried by jury for the crime of attempted grand larceny, after former conviction of two or more felonies in Case No. CF-2018-2361 in the District Court of Oklahoma County. The jury returned a verdict of guilty and recommended as punishment twenty years imprisonment. The trial court sentenced accordingly. From this judgment and sentence Judge Temple has perfected his appeal. The Judgment and Sentence is AFFIRMED. OPINION BY: Lewis, J.; Kuehn, P.J., concurs; Rowland, V.P.J., concurs; Lumpkin, J., concurs; Hudson, J., concurs.
Johnny Wayne Miller v. The State of Oklahoma
Case No. F-2019-79
Johnny Wayne Miller, Appellant, was tried by jury for the crimes of Counts 1 & 2, enabling child abuse by injury; Counts 3 & 4, child neglect; and Count 5, failure to report child abuse/child neglect in Case No. CF-2017-3 in the District Court of Rogers County. The jury returned a verdict of guilty and recommended as punishment three years imprisonment for each of Counts 1-4, and one year in the county jail for Count 5. The trial court sentenced accordingly. From this judgment and sentence Johnny Wayne Miller has perfected his appeal. The Judgment and Sentence is AFFIRMED. OPINION BY: Lewis, J.; Kuehn, P.J., concurs; Rowland, V.P.J., concurs; Lumpkin, J., concurs in result; Hudson, J., concurs.
Cathey Gayle Miller v. The State of Oklahoma
Case No. F-2019-77
Cathey Gayle Miller, Appellant, was tried by jury for the crimes of Counts 1 & 2, enabling child abuse by injury; Counts 3 & 4, child neglect; and Count 5, failure to report child abuse/child neglect in Case No. CF-2017-2 in the District Court of Rogers County. The jury returned a verdict of guilty and recommended as punishment three years imprisonment for each of Counts 1-4, and one year in the county jail for Count 5. The trial court sentenced accordingly and ordered the sentences in Counts 1-4 to run consecutively and Count 5 to run concurrent with Counts 1-4. From this judgment and sentence Cathey Gayle Miller has perfected her appeal. The Judgment and Sentence is AFFIRMED. OPINION BY: Lewis, J.; Kuehn, P.J., concurs in result; Rowland, V.P.J., concurs; Lumpkin, J., concurs in result; Hudson, J., concurs.
Court of Civil Appeals in the State of Oklahoma
ESCOBEDO v. OKLAHOMA DEPT. OF PUBLIC SAFETY
2021 OK CIV APP 2
Case Number: 118588
Decided: 12/08/2020 | Mandate Issued: 01/13/2021
DIVISION IV
¶1 Talia Escobar appeals the dismissal of her petition for declaratory judgment regarding the refusal of the Department of Public Safety to issue her a state identification (ID) card. On review we find this matter was not suitable for dismissal, and remand with instructions.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION
SUMMARY OF OPINIONS NOT FOR PUBLICATION
COURT OF CIVIL APPEALS
DIVISION 1
118,346 - Carl Parson, as personal administrator of the Estate of Hubert Leon Farley, Plaintiff/Appellee, v. CDF, Inc., Defendant, and Don Farley, Defendant/Appellant. Appeal from the District Court of Sequoyah County, Oklahoma. Honorable Kyle Waters, Judge. Defendant/Appellant Don Farley (Farley) appeals from trial court orders awarding attorney fees and costs to Plaintiff/Appellee Carl Parson, as Personal Administrator of the Estate of Hubert Leon Farley (Parson or the Administrator). The Administrator was awarded attorney fees and costs after receiving a favorable jury verdict against Farley and Defendant CDF, Inc. (CDF). Neither CDF nor Farley appealed the judgment, but Farley now seeks review of the attorney fee award. Farley has not shown the award of attorney fees and costs was contrary to law or that the amounts are unreasonable. Further, because the denial of a motion for summary judgment is not reviewable on appeal, we do not review Farley’s claim that the court erred by denying his motion for summary judgment regarding attorney fees. We AFFIRM. Opinion by MITCHELL, J.; GOREE, P.J., and PRINCE, J., concur. January 14, 2021
118,652 - Braum’s , Inc. And Own Risk, Petitioners, v. Adele Swanson and The Workers’ Compensation Commission, Respondents. Proceeding to review an Order of The Workers’ Compensation Commission. Petitioners Braum’s, Inc. and Own Risk (Braum’s) appeal from an order of the Workers’ Compensation Commission (the Commission), affirming the decision of its Administrative Law Judge (ALJ). The ALJ found Respondent Adele Swanson (Claimant) sustained a compensable injury under 85A O.S. Supp. 2014 §2(9)(a) as a result of an accident at work in which Claimant was knocked into an ice machine. Braum’s contends the ALJ’s award and the Commission’s subsequent affirmation of the award were erroneous as a matter of law because the evidence showed the only damage or harm to Claimant’s body was severe osteoarthritis, which is excluded from compensation by §2(9)(b)(5). We agree with Braum’s. Naturally occurring osteoarthritis is specifically not compensable. 85A O.S. Supp. 2014 §2(9)(b)(5). The Commission’s order is REVERSED. Opinion by MITCHELL, J.; GOREE, P.J., and PRINCE, J. concur. January 14, 2021.
DIVISION II
118,992 — Jimasina Yarnell, as friend and Special Administrator of the Estate of Louis Leroy Steely, Deceased, Plaintiff/Appellant, vs. Gary Kelley’s Add’vantage Funeral and Cremation Service, Inc., a/k/a Gary Kelley’s Add’vantage Funeral Service, an Oklahoma Corporation, and Gary Kelley, an individual, Defendant/ Appellee. Appeal from an order of the District Court of Tulsa County, Hon. Rebecca B. Nightingale, Trial Judge, granting summary judgment in favor of Defendants in this negligence action for improperly releasing Decedent’s remains. Plaintiff also appeals the trial court’s denial of her motion to reconsider this order. Plaintiff urges reversal for error in not recognizing that genuine issues of material fact existed precluding summary judgment in Defendants’ favor. The record tells us, as it did the trial court, that Defendants were entitled to judgment as a matter of law, and the summary judgment in favor of Defendants is affirmed. Because the summary judgment was correct, the trial court did not abuse its discretion in denying Plaintiff’s motion to reconsider. Both decisions are affirmed. AFFIRMED. Opinion from the Court of Civil Appeals, Division II, by WISEMAN, P.J.; BARNES, J., and THORNBRUGH, J., concur. January 15, 2021
118,394 – In Re The Marriage of: Kelly Evans, Petitioner/Appellee, vs. Benjamin Evans, Respondent/Appellant. Appeal from an Order of the District Court of Oklahoma County, Hon. Lynne McGuire, Trial Judge. The respondent, Benjamin Evans (Father), appeals an Order of Modification granting in part and denying in part his Motion to Modify a Decree of Dissolution of Marriage. The trial court denied Father’s request to alternate the tax exemption for the child and to obtain a shared parenting adjustment. Awarding a tax exemption requires a balancing of the equities. The financial impact of allocating the exemption to one party or the other is considered. After balancing the equities, this Court concludes that alternating the tax exemption for the child each year is equitable. Therefore, the judgment is modified to provide that in odd numbered years, beginning in 2021, Father shall have the tax exemption for the parties’ child and Mother shall have the tax exemption in even years, including 2020. Title 43 O.S. Supp. 2019, § 118E provides the criteria for a court order or agreement and the number of nights to apply the shared parenting adjustment. The criteria are present. The statute provides that when the criteria are present there is a presumption that the shared parenting adjustment will be applied. The presumption is rebuttable. The statute instructs that the presumption is rebutted if the adjustment is not in the child’s best interest or if the additional expenditures incurred by the party who would receive the adjustment do not justify the adjustment. Here, Mother presented no evidence to rebut the presumption. Therefore, the presumption remains and Father is entitled to the shared parenting adjustment as per the statutory formula. The trial court erred in denying Father’s request for the shared parenting adjustment. MODIFIED IN PART, REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS IN ACCORD WITH THIS OPINION. Opinion from Court of Civil Appeals, Division II, by RAPP, J.; BARNES, P.J., and FISCHER, J., concur. January 15, 2021.
118,337 — Thomas McBride, Petitioner/Appellant, vs. Jennifer McBride, Respondent/Appellee. Appeal from an order of the District Court of Canadian County, Hon. Charles Gass, Trial Judge, regarding the calculation of child support in the decree of dissolution of marriage. Father lists four propositions of error on appeal: (1) The trial court erred in failing to impute certain income to Mother; (2) the trial court denied Father the right to discover and present material facts to the court; (3) the child support order is void because he was entitled to notice of the nature of the issues to be decided at the hearing; and (4) the trial court erred in granting a judgment for accrued child support when Mother did not ask for such a judgment. We conclude Father has not shown that the child support decisions are against the clear weight of the evidence or are otherwise unjust or inequitable. Seeing no trial court error in deciding these child support issues, we affirm the trial court’s decree. AFFIRMED. Opinion from the Court of Civil Appeals, Division II, by WISEMAN, P.J.; BARNES, J., and THORNBRUGH, J., concur. January 14, 2021
118,353 – BOKF, NA, Successor by Name Change of Bank of Oklahoma, NA dba Bank of Oklahoma, Plaintiff/Appellee, vs. Michael Moore aka Michael G. Moore; Gwenda Moore aka Gwenda L. Moore aka Gwen L. Moore, Defendants/ Appellants, and Occupants of Premises; and Stone Wood Crossing HOA, Defendants. Appeal from an Order of the District Court of Tulsa County, Hon. Rebecca B. Nightingale, Trial Judge. The defendants, Michael Moore aka Michael G. Moore, and Gwenda Moore aka Gwenda L. Moore, appeal a Final Order Denying Petition and Motion to Vacate Order Denying Motion to Dismiss. The issue in this case is whether the six-year Statute of Limitations provided in 12A O.S.2011, § 3-118, bars BOKF’s action to recover on Moores’ installment promissory note and to foreclose the real estate mortgage securing that promissory note. The six-year Statute of Limitations applicable to BOKF’s action was extended when BOKF applied funds from Moores’ deposit account to the debt. The facts show that the funds were applied to the debt Moores owed BOKF with the voluntary, contractual assent of Moores. The trial court did not err by declining to vacate its ruling and judgment that BOKF’s action was not barred. The judgment denying Moores’ petition and motion to vacate is affirmed. AFFIRMED. Opinion from Court of Civil Appeals, Division II, by RAPP, J.; BARNES, P.J., and FISCHER, J., concur. January 14, 2021
118,754 — Roy Rogelio Martinez, Plaintiff/Appellee, vs. Oklahoma Department of Public Safety, Defendant/Appellant. Appeal from an order of the District Court of Pushmataha County, Hon. Jana Wallace, Trial Judge, vacating its previous order, dismissing Plaintiff Roy Rogelio Martinez’s ticket without court costs, ordering the court clerk to refund monies paid by Martinez for the ticket, and directing the reinstatement of his driving privileges. With the vacation of the previous erroneous minute and the refund of costs paid by Martinez, the dismissal did not result in a “conviction” as defined in 47 O.S. Supp. 2019 § 6-205.2(A)(5). And it goes without saying that if there is no conviction, there can be no violation for “masking” pursuant to 49 C.F.R. § 384.226, as DPS argues. Because the trial court corrected its earlier minute to comply with Oklahoma statutory requirements, DPS no longer has statutory authority to disqualify Martinez’s CDL, and the trial court correctly ordered DPS to reinstate Martinez’s CDL driving privileges. We conclude the trial court acted appropriately and its order must be affirmed. AFFIRMED. Opinion from the Court of Civil Appeals, Division II, by WISEMAN, P.J.; BARNES, J., and THORNBRUGH, J., concur. January 14, 2021
118,675 — In the Matter of the Estate of Margaret Marie Elias, Deceased, Marsden Voltaire Elias, Appellant, vs. Michael Jay Rosenheim, Appellee. Appeal from an order of the District Court of Washington County, Hon. Linda S. Thomas, Trial Judge, denying Marsden Voltaire Elias’s objection to the Personal Representative’s petition to approve the PR’s final report and account and for a final decree of distribution. The trial court’s finding that Marsden was not Margaret’s spouse at the time of her death is fully supported by the evidence. The guardians, not Marsden, represent Margaret’s and Marsden’s two minor children’s interests in the estate. Nothing in the record indicates Marsden made a timely claim as a creditor of the estate. And he presented allegations but no evidence that Margaret terminated her parental rights to her two adult children. The trial court’s decision to deny Marsden’s objection is comprehensive and well-reasoned, and its findings of fact and conclusions of law more than adequately explain the grounds for its holding. After a thorough review of the record and applicable law, we conclude that the trial court’s decision is correct and is adequately explained by its order. Finding no reversible error, we summarily affirm the trial court’s order under Oklahoma Supreme Court Rule 1.202(d), 12 O.S. Supp. 2019, ch. 15, app. 1. SUMMARILY AFFIRMED PURSUANT TO RULE 1.202(d). Opinion from the Court of Civil Appeals, Division II, by WISEMAN, P.J.; BARNES, J., and THORNBRUGH, J., concur. January 13, 2021
DIVISION III
118,800 - In the Matter of D.F.A, J.R.A, J.L.A, and D.J.A., Alleged Deprived Children under the age of 18 years, Namon Adamson, Appellant, v. State of Oklahoma, Appellee. Appeal form the District Court of Bryan County, Oklahoma. Honorable Trace Sherrill, Trial Judge. Namon Adamson (Appellant or Adamson), seeks review of the two February 19, 2020 orders of the Bryan County District Court terminating Adamson’s parental rights to his three youngest children, J.R.A., born January 12, 2003, J.L.A., born January 9, 2004, and D.J.A., born February 9, 2006. Adamson’s appeal turns on whether: 1) the deprived statutes contain a statute of repose pursuant to which the State has a deadline by which it must request termination of parental rights after having commenced a deprived action; 2) Adamson’s due process rights were violated because his rights were terminated due in part to a failure to contribute, despite purportedly never having been provided notice of an obligation to support; and 3) reversible error occurred because the jury verdict forms did not contain a distinct finding of best interests. We answer each question in the negative and AFFIRM. Opinion by PEMBERTON, P.J.; SWINTON, C.J., and BELL, J., concur. January 14, 2021.
118,507 - In the Matter of the Assessment for Tax Year 2011 of Certain Personal Property owned by Missouri Gas Energy, A Division of Southern Union Company. Missouri Gas Energy, Petitioner/Appellee. v. Grant County Assessor and Grant County Board of Equalization, Respondents/Appellants. Appeal from the District Court of Grant County, Oklahoma. Honorable Paul K, Woodard, Trial Judge. Respondents/Appellants Grant County Assessor and Grant County Board of Equalization (collectively, County) appeal summary judgment granted to Petitioner/Appellee Missouri Gas Energy (MGE) in its challenge to the assessment of tax on natural gas temporarily stored in Grant County. This case was previously remanded to the trial court with directions to determine the amount of gas exempt from ad valorem tax under the Freeport Exemption. The record shows no dispute of the material facts that the amount claimed by MGE as being exempt was purchased outside Oklahoma, stored in Oklahoma for nine months or less, and sold outside Oklahoma. MGE was entitled to judgment as matter of law and we AFFIRM. Opinion by SWINTON, V.C.J.; MITCHELL, P.J., and PEMBERTON, J., concur. January 8, 2021.
DIVSION IV
118,399 – Bennett Steel, Inc. and AIU Insurance Company, Petitioners, vs. Donald Adkins and The Workers’ Compensation Court of Existing Claims, Respondents. Proceedings to Review an Order of The Workers’ Compensation Court of Existing Claims, Hon. L. Brad Taylor, Trial Judge. Employer Bennett Steel, Inc., and its insurer seek review of an order of the Workers’ Compensation Court of Existing Claims, which denied Employer’s objection to Claimant Donald Adkins’ request for a myelogram and ordered Employer to authorize that procedure. Employer argues that the trial court’s order is contrary to law because it follows a previous determination, nine years earlier, that Claimant was permanently and totally disabled. The trial court did not err in determining that Claimant was entitled to the myelogram requested by his physician. The order of the Workers’ Compensation Court of Existing Claims is supported by competence evidence and is sustained. The matter is remanded with directions to correct the 2010 PTD order to reflect the continuing care Claimant has been receiving and to which he is entitled. SUSTAINED AND REMANDED TO THE WORKERS’ COMPENSATION COURT OF EXISTING CLAIMS FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division IV, by FISCHER, VCJ; HIXON, P.J., and RAPP, J., concur. January 15, 2021.
118,749 – In re the Marriage of: Jessica Fransis Borey, Petitioner/Appellee, vs. Trevor Wayne Borey, Respondent/Appellant. Appeal from an Order of the District Court of Carter County, Thomas Baldwin, Trial Judge. Trevor Wayne Borey (Father) appeals the trial court’s decree of dissolution of marriage filed March 3, 2020. He argues the trial court erred by awarding Jessica Fransis Borey (Mother) sole custody of the parties’ minor child and entering a long-distance visitation schedule. Based on our review of the evidence presented at trial, the trial court did not abuse its discretion by granting sold custody to Mother, and the decision was not clearly contrary to the weight of evidence. Moreover, given the practicalities of arranging long-distance visitation between two working parents (one of whom is in the military) and a child who attends school, Father cannot meet his burden of showing the visitation schedule was erroneous or contrary to the child’s best interests so as to entitle him to relief. Accordingly, we affirm the decree awarding Mother sole custody of the child and entering the visitation schedule. AFFIRMED. Opinion from the Court of Civil Appeals, Division IV, by HIXON, P.J.; FISCHER, V.C.J., and RAPP, J., concur. January 14, 2021
118,591 — In the Matter of E.M., E.M., E.M., E.M., and E.M., Adjudicated Deprived Children, Phillip Maynard, Appellant, vs. State of Oklahoma, Appellee. Appeal from an order of the District Court of Cleveland County, Hon. Stephen Bonner, Trial Judge, denying Phillip Maynard’s (Father) motion to vacate an order terminating his parental rights to his five minor children. A record devoid of support to show Father received written or oral notice of the hearing date creates a due process deficiency. Considering all of the exigent circumstances, we conclude State’s failure to give suitable notice of the trial denied Father a fair and meaningful opportunity to defend by depriving him of the ability to confront and cross-examine State’s witness, evidence and arguments. Because it was error to terminate Father’s parental rights due to failure to give proper notice of the hearing, Father’s motion to vacate should have been granted. The denial of the motion to vacate is reversed, and the case is remanded for a new trial. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from the Court of Civil Appeals, Division IV, by WISEMAN, C.J.; THORNBRUGH, P.J., and HIXON, J., concur. January 13, 2021
Planning Ahead to Protect Your Clients in the Event of Your Death or Incapacity
By Jim Calloway Lawyers take pride in their loyalty to their clients, representing them to the best of their abilities. But there are steps you can take to protect your clients even if you are not personally available to assist them. For this estate planning-themed edition of the Oklahoma Bar Journal, we have chosen to…
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