Courts and More Vol. 1 | No. 32 | August 11, 2021

Oklahoma Court of Civil Appeals

Division I

Division II

Division III

118,302  –  In Re the Marriage of: Frank Miskovsky, IV, Petitioner/Appellant, v. Kristin Marie Thomas, Respondent/Appellee. Appeal from the District Court of Oklahoma County, Oklahoma.  Honorable Sheila Stinson, Trial Judge. In this post-dissolution of marriage proceeding, Petitioner/Appellant Frank Miskovsky IV (Father), appearing pro se, appeals from the trial court’s order denying in part and granting in part, Father’s motion to modify visitation order.  The trial court also ordered Father to attend anger management therapy and ordered Father to attend therapeutic family counseling with the child.  On appeal, Father asserts the trial court’s order is not supported by the evidence.  Father also asserts he was denied due process of law by the Guardian Ad Litem’s (GAL) failure to perform the GAL’s duties.  Father further asserts the trial court’s award of GAL fees should be vacated.  After reviewing the record, this Court cannot find the trial court’s findings, order and award of GAL Fees are contrary to the evidence or an abuse of discretion.  This Court also finds that Father was afforded due process throughout this proceeding.  The trial court’s order is AFFIRMED.  Opinion by BELL, J.; PEMBERTON, P.J., and SWINTON, C.J., concur.  August 5, 2021

118,907  –  In Re the Marriage of: Frank Miskovsky, IV, Petitioner/Appellant, v. Kristin Marie Thomas, Respondent/Appellee. Appeal from the District Court of Oklahoma County, Oklahoma.  Honorable Gregory J. Ryan, Trial Judge. In this post-dissolution of marriage proceeding, Petitioner/Appellant, Frank Miskovsky IV (Father), appearing pro se, appeals from the trial court’s order denying Father’s motion to modify visitation order and enforce therapeutic family counseling. On appeal, Father asserts the predecessor judge’s order requiring Father to have a sheriff’s deputy escort to enter the Judge’s office, and her recusal prejudiced Father and denied him due process of law. After reviewing the record, this Court finds Father failed to sustain his burden of showing the current presiding judge’s prejudice towards Father or a violation of his rights to due process and equal protection. Father also asserts the predecessor judge’s acts violated Father’s right to a fair and impartial trial. This contention pertains to alleged acts by the predecessor judge and is not related to the order on appeal, accordingly, this contention is not justiciable in the instant appeal. The trial court’s order denying Father’s motion to modify visitation and enforce therapeutic family counseling is AFFIRMED.  Opinion by BELL, J.; PEMBERTON, P.J., and SWINTON, C.J., concur. August 5, 2021

118,942  –  Shari L. McPherson, Plaintiff/Appellee, v. Aaron D. McPherson, Defendant/Appellant. Appeal from the District Court of Tulsa County, Oklahoma.  Honorable Theresa Dreiling, Trial Judge. This appeal concerns whether the inclusion of a firearm prohibition in a final victim protective order entered against Aaron D. McPherson was clearly against the evidence or was contrary to a governing principle of law. Because the statutory prerequisites to a firearm prohibition were met and not clearly against the evidence, we AFFIRM the firearm prohibition included in the trial court’s final Order of Protection entered against Mr. McPherson on September 6, 2018. Although Appellant’s brief in chief contains four other propositions unrelated to the narrow firearm prohibition issue, such propositions were not articulated in the Petition in Error and therefore not preserved for appeal. Opinion by PEMBERTON, P.J.; BELL, J., and SWINTON, C.J., concur.  August 5, 2021

119,108  –  Bill Satterfield, Plaintiff/Appellant, v. City of Tulsa, Tulsa Airport Authority, Tulsa Airports Improvement Trust, and Richard Lloyd Jones, Jr. Airport, Defendants/Appellees. Appeal from the District Court of Tulsa County, Oklahoma.  Honorable Daman H. Cantrell, Trial Judge. Plaintiff/Appellant Bill Satterfield appeals from orders granting the motions to dismiss of Defendants/Appellees City of Tulsa, Tulsa Airport Authority, Tulsa Airports Improvement Trust, and Richard Lloyd Jones, Jr. Airport in an inverse condemnation action related to property in Tulsa County.  In a detailed order, the trial court determined that Satterfield lacked standing because he is not the current owner of the property, and has not been since he initiated bankruptcy proceedings in 2004.  The trial court’s order dismissing the case for lack of subject matter jurisdiction was correct and is AFFIRMED. Opinion by SWINTON, C.J.; PEMBERTON, P.J., and BELL, J., concur. August 5, 2021

119,516  –  Terry L. Merriweather, an individual, Plaintiff/Appellant, v. Saint Francis Hospital, Inc., an Oklahoma Domestic Not for Profit Corporation, Saint Francis Health Systems, Inc., an Oklahoma Domestic Not for Profit Corporation, Tejwant Kalkat, M.D., an individual, Deborah Omokhua Osifo, R.N., an individual, Angela Kay Wilkerson, R.N., an individual, Defendants/Appellees. Appeal from the District Court of Tulsa County, Oklahoma.  Honorable Douglas E. Drummond, Trial Judge.  In this medical negligence action, Plaintiff/Appellant, Terry Merriweather, appeals from the trial court’s grant of summary judgment in favor of Defendants/Appellees. On August 16, 2020, Plaintiff voluntarily presented to Saint Francis Hospital in Tulsa for food poisoning.  He was admitted and medical staff began treatment.  Two days later, Plaintiff appeared agitated and anxious.  Upon his family’s request, Dr. Kalkat permitted Plaintiff to take a walk outside to calm down.  Plaintiff subsequently fled the hospital against medical advice. Approximately three hours afterward, Plaintiff was struck by a drunk driver while attempting to cross a roadway.  Plaintiff filed suit, arguing Defendants were negligent in allowing him to leave the hospital.  We find the analysis in Collins v. HCA Health Services of Tenn., Inc., 517 S.W.3d 84 (Tenn. Ct. App. 2016), persuasive and hold Defendants did not owe Plaintiff a duty of care after he fled the hospital premises against medical advice.  Under 43A O.S. Supp. 2012 §5-207(A), Defendants did not have the authority to restrain Plaintiff against his will.  We also hold the motor vehicle accident was a supervening cause of Plaintiff’s injuries, as it was independent of Plaintiff leaving the hospital, adequate in itself to bring about the injuries and was not reasonably foreseeable.  AFFIRMED.  Opinion by BELL, J.; PEMBERTON, P.J., and SWINTON, C.J., concur. August 5, 2021

118,987  –  Dian Peacock and Craig Jenkins, Plaintiff/Appellants, v. SH Capital, LLC, an Oklahoma Limited Liability Company, Defendant/Appellee. Appeal from the District Court of Tulsa County, Oklahoma.  Honorable Doug Drummond, Trial Judge.  Plaintiffs/Appellants Dian Peacock and Craig Jenkins (collectively, “Plaintiffs”) appeal the trial court’s order denying their request for abatement of a nuisance. After a jury found that noise from an apartment complex’s air conditioning cooling tower constituted a nuisance, Plaintiffs sought an order directing the owner, SH Capital, LLC (“Defendant”), to abate the noise.  The trial court denied the abatement, based on testimony the cooling tower was not in use and the new owners were in the process of installing individual air conditioner units in the complex.  By its terms, the order denying an abatement does not prevent the nuisance from recurring in the future.  In this equitable proceeding, we modify the order on appeal to direct that the nuisance must remain abated, in accordance with the jury’s verdict.  Opinion by SWINTON, C.J.; PEMBERTON, P.J., and BELL, J., concur. August 9, 2021

Division IV

118,631 — Ronda Plumley, Plaintiff/Appellant, vs. Chuck E. Cheese’s, a foreign for profit corporation; CEC Entertainment, Inc., a foreign for profit corporation, Defendants/Appellees.  Appeal from an Order of the District Court of Oklahoma County, Hon. Susan C. Stallings, Trial Judge.  Ronda Plumley (Plaintiff) appeals the trial court’s Judgment on Jury Verdict and Order denying her motion for new trial.  Plaintiff alleges she was an invited patron on Defendant’s business premises and that while on the premises, was ejected from a ride, called the “Jett Rider,” after a piece of equipment failed.  She alleged Defendant was negligent in the inspection, maintenance, and repair of the ride and failed to warn her of the hazard, resulting in various injuries.  A three-day jury trial was held.  On appeal, Plaintiff alleges her due process rights were violated when Defendant’s expert, William R. Coleman, testified about the problems with the design of the Jett Rider, and the jury was instructed on the issue of Triotech’s (the ride’s designer) potential liability because she alleges the issue was not included in the pretrial order.  However, at trial she failed to object to the testimony and jury instructions on the ground that the Triotech issue was not included in the pretrial order.  Given the lack of proper objection, the issue was tried with the parties’ implied consent and should be treated at being fully raised in the pretrial order, pursuant to 12 O.S. Supp.2018, § 2015(B).  Even if she had properly objected, we find no due process violation occurred.  We also find the trial court did not abuse its discretion by declining to grant Plaintiff a new trial on these grounds, and affirm the trial court’s Judgment on Jury Verdict and Order denying Plaintiff’s motion for new trial.  AFFIRMED.  Opinion from Court of Civil Appeals, Division IV, by HIXON, P.J.; FISCHER, V.C.J., and RAPP, J., concur.  August 9, 2021

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