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Dispositions Other than by Published Opinions | October 20

October 19, 2021

Courts and More Vol. 1 | No. 41 | October 20, 2021

Oklahoma Court of Civil Appeals

Division I

119-696  –  In the Matter of A.L. and L.L. Alleged Deprived Children, Victor Lopez Rivera, IV, Appellant, v. State of Oklahoma Ex Rel. Department of Human Services, Appellee.  Appeal from the Distrit Court of Comanche County, Oklahoma.  Honorable Lisa Shaw, Trial Judge.  Victor Lopez Rivera, IV, appeals an Order terminating his parental rights to A.L. and L.L. on the ground that the children had been in foster care for fifteen of the most recent twenty two months preceding the filing of the petition and that the children could not be safely returned to the parent’s home.   Appellant claims on appeal that he was denied his right to procedural due process and, in addition, his rights should not have been terminated as a result of the fact that he was not allowed the ability to complete his Individualized Service Plan (“ISP”).  We find that Appellant was given an opportunity to be present at trial but declined to appear.  Further, the process afforded Appellant gave him a meaningful and fair opportunity to defend against the Petition to Terminate filed by the State.  Finally, the State proved, by clear and convincing evidence, that termination was appropriate pursuant to 10A O.S. § 1 4 904(B)(16).  Accordingly, the Order terminating Appellant’s parental rights is affirmed.  Opinion by PRINCE, J.; GOREE, P.J., and MITCHELL, J., concur.  October 14, 2021

Division II

119,311 (Consolidated with Case No. 119,346) — In the Matter of Q.L.B. and I.D.B., Alleged Deprived Children, Zachary Dell Bowens, Appellant, vs. State of Oklahoma, Appellee.  Appeal from an order of the District Court of Custer County, Hon. Christopher Kelly, Trial Judge.  Zachary Dell Bowens appeals a trial court order terminating his parental rights to his minor children, QLB and IDB.  The principal issues in this case involving Indian children are (1) whether the State of Oklahoma proved by clear and convincing evidence that it made active efforts to prevent the breakup of Bowens’ family, and (2) whether State proved beyond a reasonable doubt that Bowens’ continued custody of the children would result in serious emotional or physical damage to them.  After review of the record and applicable law, we conclude that State met its burden to show by clear and convincing evidence that it had made active efforts to provide remedial services to prevent the breakup of this Indian family.  State further provided evidence beyond a reasonable doubt that Father’s continued custody of the children would result in serious emotional or physical damage to them.  The trial court’s decision to terminate Father’s parental rights to QLB and IDB is affirmed.  AFFIRMED.  Opinion from the Court of Civil Appeals, Division II, by WISEMAN, P.J.; BARNES, J., and BLACKWELL, J., concur.  October 15, 2021

119,119 – In the Matter of the Adoption of W.R., V.R., and D.R., Minors:  Alecia Dawn Ross and Timothy Dewayne Ross, Appellants, vs. Wesley Kenneth Rouse, Appellee. Appeal from an Order of the District Court of Cleveland County, Hon. Michael Tupper, Trial Judge. A mother and stepfather appeal a decision of the district court denying their request to allow the adoption of the minor children without the consent of their father, the appellee. We affirm the trial court’s decision denying the request to adopt without consent because the father’s efforts to vacate the divorce decree to either gain custody or increase his visitation rights was “sufficient legal action” within the meaning of 10 O.S § 7502-4.2(H)(2) that excused the father’s failure to maintain “a substantial and positive relationship with [the children] for a period of twelve (12) consecutive months out of the last fourteen (14) months immediately preceding the filing of a petition for adoption of the child,” which would have allowed the adoption to proceed without the father’s consent. AFFIRMED. Opinion from the Court of Civil Appeals, Division II by BLACKWELL, J.; WISEMAN, P.J., and BARNES, J., concur.  October 18, 2021

Division III

118,511  –  Jerry Noel Self and Rosemary Self, husband and wife, individually and as trustees of the Jerry Noel Self Trust dated April 16, 2018, Plaintiffs/Appellees, v. Marilyn Griffin, Defendant/Appellant.  Appeal from the District Court of Cherokee County, Oklahoma.  Honorable Douglas Kirkley, Trial Judge. Defendant/Appellant, Marilyn Griffin, appeals from the trial court’s order granting a prescriptive easement to Plaintiffs/Appellees, Jerry Noel Self and Rosemary Self, husband and wife, individually and as Trustees of the Jerry Noel Self Trust dated April 16, 2018. The trial court held the Selfs sustained their burden of establishing a prescriptive easement to the gravel road (driveway) that curves across  the west boundary of Griffin’s real property in Cherokee County, Oklahoma.   The court found the driveway was used for more than fifteen years and there was no evidence showing Griffin gave or exhibited conduct of consent for the use of the driveway.  For the reasons set forth, we AFFIRM the trial court’s decision, but REMAND the order to the trial court with directions to specify the legal description of the prescriptive easement within its order.  Opinion by BELL, J.; SWINTON, C.J., and PEMBERTON, P.J., concur.  October 14, 2021

119,529  –  Juli Huff and Terry Wade Huff, Plaintiffs/Appellants, v. Bank of Eufala, an Oklahoma Bank; and SNB Bancshares, Inc., an Oklahoma Corporation, Defendants/Appellees. Appeal from the District Court of Muskogee County, Oklahoma. Honorable Timothy King, Trial Judge. Plaintiffs/Appellants Julie and Terry Wade Huff appeal from the denial of their motion to reconsider summary judgment granted to Defendants/Appellees Bank of Eufala (Bank) and SNB Bancshares, Inc. (SNB) on the Huffs’ negligence claims.  Julie Huff was a customer inside Bank when a robber tragically kidnapped her and fled with her.  She was later shot several times by police in the course of the robber’s capture.  The Huffs sued Bank and its majority owner, SNB, for negligence in failing to prevent Huff’s kidnapping and her resulting injuries.  The material facts are undisputed and show Bank and SNB were entitled to judgment as a matter of law.  It is undisputed Bank had never been robbed before the incident involved here.  Accordingly, Bank had no duty to warn or protect Julie Huff from the robber. The order granting summary judgment and the order denying the motion to reconsider adequately explain the court’s decision. We affirm by summary opinion, incorporating and adopting those orders pursuant to Oklahoma Supreme Court Rule 1.202(d). Opinion by SWINTON, C.J.; PEMBERTON, P.J., and BELL, J., concur. October 14, 2021

Division IV

119,719 — Carl Arie Chasteen and Marsha Ann Chasteen, Plaintiffs/Appellees, vs. The Unknown Successors of Ida Burgess, et al., Defendants, and Donna Elise Lee, Defendant/Appellant.  Appeal from an Order of the District Court of Wagoner County, Hon. Dennis Shook, Trial Judge.  Donna Elise Lee (Lee) appeals an order granting Carl Arie Chasteen and Marsha Ann Chasteen’s (collectively, the Chasteens) summary adjudication, quieting title to real property in them through warranty deed and adverse possession.  The summary judgment motion offered by the Chasteens in this case falls far short of demonstrating that only questions of law remain to be decided or that they were entitled to judgment as a matter of law.  The trial court’s order is reversed and the matter remand for further proceedings.  REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.  Opinion from Court of Civil Appeals, Division IV, by HIXON, P.J.; FISCHER, V.C.J., and RAPP, J., concur.  October 13, 2021

117,545 (Consolidated with Case No. 117,654) – Maria A. Laubach, Petitioner/Appellee, vs. Paul W. Laubach, Respondent/Appellant.  Appeal from Order of the District Court of Blaine County, Hon. Ryan D. Reddick, Trial Judge.  In this consolidated appeal, appellant Paul Laubach (Father) appeals the denial of two motions for new trial and two motions to vacate in his attempt to obtain custody of his children from Maria Laubach (Mother).  Father has failed to preserve appellate review of most of the issues raised in this appeal because his district court pleadings were not timely filed, requiring dismissal of part of this appeal.  The untimeliness of some of his pleadings has also limited our review of the district court’s orders Father has successfully appealed.  Father’s August 21, 2018 motion for new trial was not filed within the required ten days after the November 22, 2016 ruling for which Father sought a new trial.  Father’s appeal of the district court’s October 26, 2018 order denying that motion is dismissed.  Father’s August 21, 2018 petition to vacate the November 22, 2016 ruling sought to vacate a previously-terminated order.  The district court’s denial of that petition is affirmed.  Father’s October 22, 2018 motion for new trial was filed too late to seek a new trial of the April 17, 2018 custody and relocation order.  Consequently, that motion did not extend the time to appeal the April 17, 2018 order.  Father’s direct appeal of the April 17, 2018 order was filed more than thirty days after Father had actual knowledge of that order.  Father’s failure to appeal that order within thirty days is “jurisdictional” and that aspect of Father’s appeal is dismissed.  Stites v. Duit Constr. Co., Inc., 1995 OK 69, ¶ 25, 903 P.2d 293.  In addition, Father’s October 22, 2018 pleading did not extend the time to appeal the district court’s October 12, 2018 order.  Father’s January 2, 2019 petition in error was filed too late as a direct appeal of the October 12, 2018 order and that aspect of Father’s appeal is also dismissed.  12 O.S. Supp. 2017 § 990A.  Finally, Father’s October 22, 2018 motion also sought to vacate the district court’s April 17, 2018 order on two grounds, Mother’s alleged perjury and the trial Judge’s purported bias.  For the reasons stated in this Opinion, Father cannot relitigate the issue of Mother’s veracity on which that order was based.  To support his claim of bias, Father’s brief-in-chief presents the identical argument and the same authorities which he twice presented to the district court.  They were not persuasive then and they are not persuasive now.  The District Court’s December 3, 2018 order denying Father’s October 22, 2018 motion to vacate is affirmed.  AFFIRMED IN PART, DISMISSED IN PART.  Opinion from Court of Civil Appeals, Division IV, by FISCHER, V.C.J.; RAPP, J., concurs, and HIXON, P.J., concurs in result.  October 18, 2021

118,853 — In the Matter of the Marriage of:  Nicole Fitzpatrick, Petitioner/ Appellee, vs. Jeremy Fitzpatrick, Respondent/Appellant.  Appeal from an Order of the District Court of Oklahoma County, Hon. Gregory J. Ryan, Trial Judge.  Jeremy Fitzpatrick (Husband) appeals the trial court’s Decree of Dissolution of Marriage.  Based on our review of the record and applicable law, we reverse the trial court’s decree pertaining to the A and B units in Flywheel Energy, LLC and requiring Husband to list Nicole Fitzpatrick (Wife) as a beneficiary on his life insurance until their youngest child turns 21 years old.  We remand such matters for proceedings consistent with this Opinion.  Additionally, we affirm the trial court’s decree pertaining to custody and care of the children and the amount of child support awarded to Wife.  AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS.  Opinion from Court of Civil Appeals, Division IV, by HIXON, P.J.; FISCHER, V.C.J., and RAPP, J., concur.  October 19, 2021

118,492 — Robin L. Wilkinson, Plaintiff/Appellee, vs. Southwestern Medical Center, LLC, d/b/a Southwestern Medical Center, Defendant/Appellant, Abdallah M. Hussein, M.D., and Lawton Emergency Group, LLC, Defendants.  Appeal from an order of the District Court of Comanche County, Hon. Scott D. Meaders, Trial Judge.  Southwestern Medical Center, LLC, d/b/a Southwestern Medical Center (SWMC) appeals a judgment entered after a jury verdict in favor of Robin Wilkinson awarding her damages in the sum of $2,000,000.  Based on our review of the record, applicable law, and the parties’ arguments, the trial court correctly denied SWMC’s demurrer, motion for directed verdict, and motion for judgment notwithstanding the verdict and did not err in its verdict forms or instructions to the jury.  We affirm the trial court’s judgment on the jury verdict.  AFFIRMED.  Opinion from the Court of Civil Appeals, Division II, by WISEMAN, P.J.; BARNES, J., concurs, and BLACKWELL, J., concurs in result.  October 19, 2021


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