Courts and More Vol. 1 | No. 27 | July 7, 2021

Oklahoma Court of Civil Appeals

Division I

119,038  –  Cleveland Anderson, v. Petitioner/Appellant, v. John Howard Martin, Respondent/Appellee. Appeal from the District Court of Muskogee County, Oklahoma.  Honorable Weldon Stout, Trial Judge.  This action began as an effort to vacate a final judgment previously entered in an eviction/injunctive relief action.  See John Howard Martin v. Cleveland Anderson, Muskogee County District Court, No. CV-2016-219 (the “2016 Action”).  Ultimately, the 2016 Action was consolidated with this quiet title action, concluding in a final judgment that quieted title in the real estate in the name of Appellee, John Howard Martin (“Martin”).  Appellant, Cleveland Anderson (“Anderson”) has appealed that decision.  Martin is deceased, having died during the course of this appeal (although the exact date of his death is unknown).  Additionally, notwithstanding the fact that Appellant represented in the Petition in Error that he mailed a copy of the Petition in Error to Martin’s counsel, Lowell G. Howe, neither Martin nor his estate have responded in any way to this appeal proceeding. Unlike the trial court, we find that the evidence in the record clearly demonstrates that title to the real estate at issue here should be quieted in the name of Anderson, not Martin.  The decision of the trial court was based on an abused judicial discretion and we, therefore, reverse the final judgment of the trial court.  The matter is remanded to the trial court for the entry of an appropriate final judgment, consistent with this Opinion, for recording purposes in the Office of the County Clerk of Muskogee County, Oklahoma (the “Office of the County Clerk”). Opinion by PRINCE, J.; GOREE, P.J., and MITCHELL, J., concur. July 1, 2021

Division II

119,367 – Cynthia Phillips, individually and on behalf of her minor child A.M., Plaintiff/Appellant, v. White Water Bay, Premiere Parks, and Six Flags, Defendants/Appellees.  Appeal from the District Court of Oklahoma County, Hon. Don Andrews, Trial Judge.  Plaintiff appeals from the district court’s order granting the motion for summary judgment of Defendants.  Plaintiff and her minor child A.M. visited Defendants’ water park in Oklahoma City in 2018.  A.M. was injured when he slid down a water slide constructed in 1999.  The slide terminates above a pool and there is a “drop height” of approximately four feet between the bottom of the slide and the pool.  The statute of repose set forth in 12 O.S. 2011 § 109 applies to this case, meaning Defendants cannot be held liable for any injury that occurred to A.M. in 2018 as a result of a design defect.  Because Plaintiff’s sole assertion is that A.M. was injured as a result of the four-foot “drop height” of the water slide – a designed feature of the slide present since its construction approximately twenty years before the incident – we conclude the trial court properly determined Plaintiff’s claim is barred under § 109, and properly granted Defendants’ motion for summary judgment.  AFFIRMED.  Opinion from Court of Civil Appeals, Division II, by BARNES, J.; WISEMAN, P.J., and HIXON, J. (sitting by designation), concur.  July 1, 2021

118,730 – In the Matter of P.S. and H.S., Minor Children: Nicholas Devin Scoggins, Respondent/Appellant, v. Jack Richard Stephenson and Gloria Alice Smith, Petitioners/Appellees.  Appeal from the District Court of Garvin County, Hon. Steven Kendall, Trial Judge.  Appellant Nicholas Devin Scoggins (Father) appeals from an order of the trial court granting Appellees Jack Richard Stephenson and Gloria Alice Smith (collectively, Grandparents) grandparental visitation of the minor children P.S. and H.S.  We reverse because Father agreed to visitation; therefore, the trial court had no authority to grant visitation to Grandparents.  Although the trial court had subject matter jurisdiction in this case, we conclude the trial court abused its discretion in ordering grandparental visitation pursuant to 43 O.S. 2011 & Supp. 2017 § 109.4 because on the record before us Father has not denied visitation to Grandparents and the visitation he is willing to allow forestalls the harm or potential harm cited by Grandparents and as found by the court.  Accordingly, the trial court’s order is reversed.  REVERSED.  Opinion from Court of Civil Appeals, Division II, by BARNES, J.; WISEMAN, P.J., and RAPP, J. (sitting by designation), concur.   July 2, 2021

Division III

119,145  –  In The Matter of S.M., Alleged Deprived Child, Danielle Morgan, Appellant, v. State of Oklahoma, Appellee.  Appeal from the District Court of Adair County, Oklahoma.  Honorable Elizabeth L. Brown, Trial Judge. Appellant Danielle Morgan (Mother) appeals from an order terminating her parental rights to the minor child S.M., in a proceeding filed by Appellee State of Oklahoma (State).  Mother argues that the trial court erred in its jury instructions, that active efforts were not made to provide her with services to complete her treatment plan for reunification with the Minor Child, and that the State failed to present sufficient evidence supporting termination of Mother’s parental rights beyond a reasonable doubt.  We AFFIRM. Opinion by SWINTON, C.J.; PEMBERTON, P.J., and BELL, J., concur.  July 1, 2021

119,236  –  Kelly R. Miller, Plaintiff/Appellant, v. Lee Linsenmeyer, III and Central Rural Electric Cooperative, Inc., Appellees.  Appeal from the District Court of Payne County, Oklahoma.  Honorable Phillip C. Corley, Trial Judge.  Plaintiff/Appellant, Kelly R. Miller, appeals the trial court’s dismissal of his petition against Appellees, Lee Linsenmeyer, III and Central Rural Electric Cooperative, Inc. (CREC), related to claims of failure to serve Appellees within 180 days of the commencement of his actions, and Miller’s failure to show good cause for failing to serve notice within or by the expiration of the allotted time frame.  Based upon our review of the record and applicable law, the decision of the trial court is affirmed.  Opinion by BELL, J.; SWINTON, C.J., concurs and PEMBERTON, P.J., concurs in part and dissents in part. July 2, 2021

Division IV

117,275 — Deborah Box and Eugene Box, individually and as wife and husband, Plaintiffs/Appellants, vs. Randall L. Hendricks, M.D.; John S. Marouk, D.O.; and Central States Orthopedic Specialists, Inc., Defendants/Appellees, and Wal-Mart and/or American Home Assurance, Intervenors.  Appeal from an Order of the District Court of Tulsa County, Honorable Jefferson D. Sellers, Trial Judge.  Deborah and Eugene Box appeal judgment and denial of a motion for new trial following jury trial on Deborah’s claim for medical negligence and battery against Defendants Dr. Randall Hendricks, Dr. John Marouk and Central States Orthopedic Specialists, Inc.  Deborah consented to surgical procedure at the L4-L5 vertebral level, to be performed by Hendricks and Marouk (collectively, Defendants).  Defendants performed the initial surgery at the L3-L4 level.  Deborah consented to a second surgery by Defendants at the correct level, and a later surgery to remove hardware used in the spinal fusion.  Deborah sued Defendants for medical negligence and battery, claiming damages and permanent injury from the surgeries.  The trial court directed a verdict on battery related to surgery at the wrong level, and presented Deborah’s claim for negligence, and her damages from negligence and battery to the jury.  The jury found in favor of Defendants on the medical negligence claim, and awarded no damages for the battery.  Deborah asserts the trial court erred by declining to instruct the jury on a res ipsa loquitur pattern of proof, and that the battery verdict awarding them no damages is inconsistent within itself, warranting a new trial.  We conclude the trial court did not err by refusing to instruct the jury on res ipsa loquitur and that competent evidence supported the jury’s award of zero damages on battery.  We further conclude the trial court did not abuse its discretion in denying Deborah’s motion on either issue and affirm the court’s judgment and its order denying the motion for new trial.  AFFIRMED.  Opinion from the Court of Civil Appeals, Division IV, by HIXON, P.J.; FISCHER, V.C.J., and WISEMAN, J. (sitting by designation), concur.  July 2, 2021

118,585 — Jillian R. Cannizzaro, Petitioner/Appellee, vs. Matthew S. Cannizzaro, Respondent/Appellant.  Appeal from an Order of the District Court of Tulsa County, Honorable Julie C. Doss, Trial Judge.  Matthew S. Cannizzaro (Father) appeals an order awarding Jillian R. Cannizzaro (Mother) an attorney’s fee.  Father contends the trial court erred in awarding Mother an attorney’s fee.  Although the trial court’s order does not identify the statutory authority relied upon, it appears the court awarded an attorney’s fee pursuant to 43 O.S.2011, § 111.1.  We hold that, while the trial court did not abuse its discretion in awarding Mother an attorney’s fee pursuant to § 111.1(C)(3), the trial court erred in failing to follow the requirements of State ex rel. Burk v. City of Oklahoma City, 1979 OK, 598 P.2d 659.  Thus, we reverse the attorney’s fee award and remand the matter to the trial court for a review of the fee awarded and to set forth the facts and computation supporting the award, consistent with the pronouncements in Burk.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS.  Opinion from the Court of Civil Appeals, Division IV, by HIXON, P.J.; FISCHER, V.C.J., and RAPP, J., concur.  July 2, 2021

119,355 – In the Matter of the Adoption of: N.T.W., Joseph Christopher Wiles, Appellant, vs. April Millican and Sean Millican, Appellees.  Appeal from an Order of the District Court of Oklahoma County, Hon. Allen Welch, Trial Judge.  This is an appeal of an Order Finding that the Child is Eligible for Adoption Without Father’s Consent.  The father, Joseph Christopher Wiles is the appellant.  April Millican, and her husband, Sean Millican, are the appellees and trial court petitioners.  After review of the Appellate Record, this Court finds (1) no reversible error of law; (2) the findings of fact by the trial court are supported by clear and convincing evidence; and (3) the trial court’s judgment, findings of fact and conclusions of law adequately explain the decision.  Therefore, the trial court’s Order Finding that the Child is Eligible for Adoption Without Father’s Consent is affirmed under Okla.Sup.Ct.R. 1.202(b) and (d), 12 O.S.2011, Ch. 15, App. 1.  AFFIRMED under Okla.Sup.Ct.R. 1.202(b) and (d), 12 O.S.2011, Ch. 15, App. 1.  Opinion from Court of Civil Appeals, Division IV, by RAPP, J.; FISCHER, V.C.J., and HIXON, P.J., concur.  July 6, 2021

119,048 — Deere & Company, Plaintiff/Appellee, vs. Jerry Atzbach, Defendant/ Third-Party Plaintiff/Appellant, vs. Andrea Mosley, Trey Mosley and Curb 2 Curb, LLC, a limited liability company organized under the laws of Kansas, Third-Party Defendants. Appeal from an Order of the District Court of Rogers County, Honorable Sheila A. Condren, Trial Judge, granting Deere & Company’s (Deere) motion for summary judgment and denying Jerry Atzbach’s (Atzbach) motion for summary judgment. Andrea Mosley (Andrea) purchased a John Deere 26G Compact Excavator from Prairieland Partners, Inc. (Prairieland) in Kansas, and granted Deere a purchase-money security interest. Subsequently, Andrea’s husband (Trey) traded the excavator to Atzbach in exchange for a septic pump truck. After Andrea defaulted under the Contract, Deere accelerated the amounts payable thereunder and made a demand on Atzbach for possession of the excavator. Atzbach refused. The Contract is governed by the Uniform Commercial Code (UCC). We find the trial court properly granted Deere summary judgment as it had a properly recorded security interest in the excavator. The trial court’s order is affirmed. AFFIRMED. Opinion from the Court of Civil Appeals, Division IV, by HIXON, P.J.; FISCHER, V.C.J., and RAPP, J., concur.  July 6, 2021

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