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Dispositions Other than by Published Opinions | April 21 | Courts and More

April 20, 2021

Courts and More Vol. 1 | No. 16 | April 21, 2021

Oklahoma Court of Civil Appeals

Division I

Division II

118,497 – In the Matter of the Estate of: Robert J. Baugess and Virginia Lee Baugess, Deceased.  Jack Baugess, Appellant v. Kevin Baugess and Cheryl Touboulie, Appellees.  Appeal from the District Court of Tulsa County, Hon. Kurt G. Glassco, Trial Judge.  In this probate proceeding, Appellant Jack Baugess appeals from orders of the trial court refusing to probate a holographic will, determining a certain trust was void and determining an amendment to the trust was invalid because the maker lacked capacity.  We conclude the trial court’s refusal to admit the holographic will to probate was clearly against the weight of the evidence and, thus, an abuse of discretion.  We further conclude the trial court’s determination that the trust is void ab initio because a nonexistent estate was mistakenly included as a settlor and it was not funded was clearly against the weight of the evidence and, thus, an abuse of discretion.  Consequently, the trial court’s determination that a quit claim deed set out in Virginia Lee Baugess’s pour-over will is invalid and subject to intestate succession is in error.  We further conclude, the trial court’s determination that Virginia Lee Baugess lacked capacity to amend the trust is clearly against the weight of the evidence and, thus, the trial court abused its discretion in finding an amendment to the trust invalid.  On remand we instruct the trial court to admit the holographic will to probate, uphold the trust as reformed and amended, and determine the pour-over provision of Virginia Lee Baugess’s will is effective.  Accordingly, we reverse and remand with instructions.  REVERSED AND REMANDED WITH INSTRUCTIONS.  Opinion from Court of Civil Appeals, Division II, by BARNES, J.; FISCHER, V.C.J., and WISEMAN, P.J., concur.  April 14, 2021

118,073 – Samantha Wayland, Plaintiff/Appellee, v. Antonio Wayne Pitts, Defendant/Appellant.  Appeal from the District Court of Oklahoma County, Hon. Barry L. Hafar, Trial Judge.  Antonio Wayne Pitts appeals from the trial court’s order denying his motion to vacate.  The appellate record does not contain the judgment Mr. Pitts seeks to vacate, nor does it contain any pleadings or transcripts from the hearings.  No issue will be resolved upon a critically deficient record.  This Court cannot rule upon a record that potentially could be made, but rather must rule on the record actually before it.  The appellant bears the undivided responsibility for producing to a court of review a record that will clearly demonstrate the findings and decree of the trial court to be in error.  In the absence of a complete record, this Court must presume the trial court did not abuse its discretion.  Therefore, the trial court’s order denying Mr. Pitts’ motion to vacate is affirmed.  AFFIRMED.  Opinion from Court of Civil Appeals, Division II, by BARNES, J.; WISEMAN, P.J., and RAPP, J. (sitting by designation), concur.  April 14, 2021

Division III

Division IV

118,696 (Companion with Case No. 118,540) – In the Matter of B.R.S., and C.M.S., Alleged Deprived Children:  Carlos Stewart, Appellant, vs. State of Oklahoma, Appellee.  Appeal from an Order of the District Court of Tulsa County, Hon. Martha Rupp Carter, Trial Judge.  Carlos Stewart (Father) appeals an order entering the jury’s verdict terminating his parental rights to his minor children, B.R.S. and C.M.S.  Father alleges State did not present clear and convincing evidence to support the three grounds for termination: the failure to correct the condition of neglect that led to the children’s deprived adjudication, pursuant to 10A O.S.Supp.2015, § 1-4-904(B)(5); a substantial erosion in the relationship between the parent and child, pursuant to 10A O.S.Supp.2015, § 1-4-904(B)(15); and the length of time in foster care, pursuant to 10A O.S.Supp.2015, § 1-4-904(B)(17).  Father also alleges the State failed to prove the termination was in the best interests of the children by clear and convincing evidence.  The record establishes that the jury’s verdict terminating Father’s parental rights to B.R.S. and C.M.S. was supported by clear and convincing evidence.  We therefore affirm the trial court’s order entering the jury’s verdict and terminating Father’s parental rights.  AFFIRMED.  Opinion from the Court of Civil Appeals, Division IV, by HIXON, P.J.; FISCHER, V.C.J., and RAPP, J., concur.  April 15, 2021

118,540 (Companion with Case No. 118,696) – In the Matter of A.C., and J.C., Deprived Children, Kenya Chavez, Appellant, vs. State of Oklahoma, Appellee.  Appeal from an Order of the District Court of Tulsa County, Hon. Martha Rupp Carter, Trial Judge.  Kenya Chavez (Mother) appeals an order entering the jury’s verdict terminating her parental rights to her minor children, J.C. and A.C.  Mother alleges State did not present clear and convincing evidence to the jury to support the two grounds for termination: the failure to correct the condition of neglect that led to the children’s deprived adjudication, pursuant to 10A O.S.Supp.2015, § 1-4-904(B)(5); and the length of time in foster care, pursuant to 10A O.S.Supp.2015, § 1-4-904(B)(16).  The record establishes that the jury’s verdict terminating Mother’s parental rights to J.C. and A.C. pursuant to sections 1-4-904(B)(5) and (B)(16) was supported by clear and convincing evidence.  We therefore affirm the trial court’s order entering the verdict and terminating Mother’s parental rights.  AFFIRMED.  Opinion from the Court of Civil Appeals, Division IV, by HIXON, P.J.; FISCHER, V.C.J., and RAPP, J., concur.  April 15, 2021

118,420 – Curtis Rodgers, Plaintiff/Appellee, vs. City of Norman, Oklahoma, Defendant/Appellant.  Appeal from an Order of the District Court of Cleveland County, Hon. Jeff Virgin, Trial Judge.  The City of Norman (City or “the City”) appeals the result of a bench trial that found Norman police officer Ricky Hanna 50 percent negligent in an automobile accident, and awarded damages against the City.  On review, this Court affirms the decision of the district court.  “In an action at law the findings of fact by the trial court have the same force and effect as the verdict of a jury, and those findings will not be disturbed upon appeal where there is any evidence reasonably tending to support the findings.”  Hagen v. Independent Sch. Dist. No. I-004, 2007 OK 19, ¶ 7, 157 P.3d 738.  This Court finds no principle that Plaintiff’s expert’s testimony was inadmissible as a matter of law, and no plain error in its admission.  The effective time to mount challenges as to the validity or weight that should be assigned to an expert’s testimony is before, or during trial.  The burden on a party doing so for the first time on appeal is substantial, and was not met here.  As such, the district court’s findings are supported by competent evidence and the decision of the district court is affirmed.  AFFIRMED.  Opinion from Court of Civil Appeals, Division IV, by RAPP, J.; FISCHER, V.C.J., and HIXON, P.J., concur.  April 19, 2021


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