Courts and More Vol. 1 | No. 34 | August 25, 2021

Oklahoma Court of Civil Appeals

Division I

118,270  –  In Re the Marriage of: Kendal Huber Minmier, Petitioner/Appellee, v. James Guy Minmier, Jr., Respondent/Appellant. Appeal from the District Court of Oklahoma County, Oklahoma.  Honorable Sheila A. Stinson, Trial Judge.  Petitioner/Appellee, Kendal Huber (Wife), and Respondent/Appellant, James Guy Minmier (Husband) appeal the district court’s division of Husband’s employment severance package.  The parties’ antenuptial agreement governs the classification of the asset as marital or separate, 43 O.S. §121(B), and not the common law “replacement approach” adopted in Christmas v. Christmas, 1990 OK 16, 787 P.2d 1267.  REVERSED AND REMANDED. Opinion by GOREE, P.J.;  MITCHELL, J., and  BELL, J., (sitting by designation), concur. August 19, 2021

118,579  –  Lisa C. Woods, Plaintiff/Appellant, v. Ashley Jean McDonnell, Defendant/Appellee, and State Farm Insurance Company, Defendant.  Appeal from the District Court of Creek County, Oklahoma.  Honorable Lawrence W. Parish, Trial Judge.  This appeal arises out of an action by Appellant Lisa C. Woods against Appellee Ashley Jean McDonnell for damages Appellant claims arose from a rear-end collision with Appellee.  Following a multiday jury trial, the trial court entered judgment in favor of Appellee in accordance with the jury’s unanimous verdict.  Appellant thereafter filed a Motion for New Trial, which was denied.  Appellant then filed this appeal, wherein she reasserts similar propositions of error—again to no avail.  Both because the Appellant failed to designate a comprehensive record, and because the jury is the conclusive judge of the evidence, this Court concludes that the trial court did not err.  Therefore, the trial court’s December 19, 2019 Order, denying Appellant’s Motion for New Trial, is affirmed. Opinion by PRINCE, J.; GOREE, P.J., and MITCHELL, J., concur.  August 19, 2021

118,602  –  Sherman Hadley, Plaintiff/Appellee, v. Melissa Hadley, Now Melissa Power, Defendant/Appellant.  Appeal from the District Court of McCurtain County, Oklahoma.  Honorable Michael D. DeBerry, Judge.  The parties divorced in 1995 with a consent decree dividing their property.  The decree was silent as to the disposition of jointly owned real property on which husband’s veterinary clinic was located.  Husband was, however, granted all assets of that business and all the indebtedness thereon.  Husband paid off the mortgage on the property in 2009 and continued to pay the property taxes.  In 2018 Husband realized Wife was still shown on the title and he brought a quiet title action to have her removed.  Wife claimed she was entitled to half of the real estate. The trial court ultimately found in favor of Husband, finding that the parties had entered into an agreement concerning the property division at the time of the divorce and that the agreement contemplated that Husband would be the sole owner of the veterinary business which included the real property at issue.  The court found that the most likely intent of the parties was to distribute all their assets in the 1995 decree.  The trial court’s decision, being neither against the clear weight of the evidence nor contrary to law is affirmed.  Opinion by MITCHELL, J.; GOREE, J., and PRINCE, J., concur.  August 19, 2021

Division II

119,482 — Becky Wright, Plaintiff/Appellant, vs. Board of County Commissioners of Carter County, Defendant/Appellee.  Appeal from an order of the District Court of Carter County, Hon. Thomas K. Baldwin, Trial Judge, granting summary judgment on Plaintiff’s 42 U.S.C.A. § 1983 claim after we reversed a prior grant of summary judgment on this claim and remanded the matter for further proceedings in Wright v. Board of County Commissioners of Carter County, 2020 OK CIV APP 46, 475 P.3d 409 (Wright I).  In Wright I, we concluded that the trial court erred in granting Board summary judgment on Wright’s § 1983 claim.  We find the trial court did not implement our decision in Wright I, but adopted the Board’s version of material facts as uncontroverted, and then decided the factual issues raised by the last two elements based on those facts.  Rather than leaving the determination of these factual questions to the finders of fact as directed by our previous Opinion, the trial court decided disputed issues of fact at the summary judgment stage based essentially on evidence presented by affidavit.  We conclude that reasonable people exercising fair and impartial judgment could differ, under the Garcetti/Pickering test, as to whether Wright’s protected speech was “a motivating factor” in her supervisor’s decision to fire her and as to whether her supervisor would have fired her if Wright had not reported her to law enforcement authorities.  Strong support for this conclusion can be found in the jury’s verdict in Wright’s favor on her wrongful termination claim.  Our previous Opinion instructed that summary judgment was not appropriate for this § 1983 claim, and we reiterate that holding.  We summarily reverse the trial court’s decision pursuant to Supreme Court Rule 1.201, 12 O.S.2011, ch. 15, app. 1, because our previous decision in Wright I is dispositive of this appeal.  SUMMARILY REVERSED PURSUANT TO RULE 1.201.  Opinion from the Court of Civil Appeals, Division II, by WISEMAN, P.J.; BARNES, J., and HIXON, J. (sitting by designation), concur.  August 19, 2021

Division III

118,802  –  Daniel Robb Cole, Plaintiff/Appellant, v. Bank of America, N.A., Shapiro & Cejda, LLC, Kirk J. Cejda, Lesli J. Peterson and Carmeka Edwards, Defendants/Appellees.  Appeal from the District Court of Oklahoma County, Oklahoma.  Honorable Don Andrews, Trial Judge.  Plaintiff/Appellant, Daniel Robb Cole, appeals from the trial court’s dismissal of his malicious prosecution action against Defendants/Appellees, Bank of America, N.A. (BANA), Shapiro & Cejda, LLC, Kirk J. Cejda and Lesli J. Peterson (Lawyer Defendants).  BANA, represented by Lawyer Defendants, sued to foreclose a note and mortgage executed by Cole and his former wife.  Summary judgment was entered for BANA and Cole filed a motion to vacate.  BANA thereafter admitted the note had been modified by agreement with the ex-wife only, but noted it had recently filed a “release of judgment” as to Cole.  The trial court denied Cole’s motion to vacate and he appealed.  Division II of this Court vacated and remanded in Bank of America, N.A. v. Cole, No. 116,943 (Okla. Civ. App. Mar. 4, 2019) (unpublished).  BANA thereafter voluntarily dismissed the foreclosure action against Cole without prejudice.  Cole then brought the instant action for malicious prosecution and the trial court dismissed.  We hold, pursuant to Glasgow v. Fox, 1988 OK 71, 757 P.2d 836, BANA’s dismissal without prejudice of the underlying foreclosure action was not a termination of the suit in Cole’s favor for malicious prosecution purposes.  AFFIRMED. Opinion by BELL, J.; SWINTON, C.J., and PEMBERTON, P.J., concur.  August 19, 2021

119,079  –  Heather Marie Morgan, Petitioner/Appellee, v. Mark Ray Morgan, Respondent/Appellant. Appeal from the District Court of Rogers County, Oklahoma.  Honorable Terrell S. Crosson, Trial Judge. Respondent/Appellant, Mark Ray Morgan (Father), appeals from the trial court’s order calculating the amount of Father’s support obligation for his disabled adult child.  This is the second appeal from the court’s order for disabled adult child support pursuant to 43 O.S. 2011 §112.1A.  In the first appeal, Morgan v. Morgan, 2019 OK CIV APP 5, 438 P.3d 837 (Morgan I), the appellate court affirmed the trial court’s decision to award adult child support, but reversed and remanded the amount  and effective date of such support award.  On remand, the trial court calculated Father’s monthly child support for his disabled adult child to be $823.75.  The trial court stated the effective date of such support award was October 5, 2017, the date of the first order of support.  The court awarded Petitioner/Appellee, Heather Marie Morgan (Mother), a judgment for past due support in the amount of $27,183.75.  On appeal, Father asserts the trial court erred when it: 1) failed to conduct a merits trial of the remanded issue, 2) included the adult child’s daily living expenses in calculating his need for adult child support, 3) failed to impute allowable governmental assistance to the adult child’s income, and 5) when it “retroactively” ordered child support.  We affirm the trial court’s decision to consider the adult child’s daily living expenses in calculating the adult child support needs; its refusal to impute unrealized governmental financial assistance towards the adult child’s income; and its decision to make Father’s adult child support obligation effective as of the file date of the original support award.  However, we hold the trial court erred when it failed to allow the parties to present their evidence of the §112.1A factors at an evidentiary hearing.  Accordingly, the trial court’s order is AFFIRMED IN PART, REVERSED IN PART AND REMANDED for further proceedings. Opinion by BELL, J.; SWINTON, C.J., and PEMBERTON, P.J., concur.  August 19, 2021

119,093  –  Joshua Jacobs, Petitioner/Appellee, v. Janee Nicole Brown, Respondent/Appellant. Appeal from the District Court of Tulsa County, Oklahoma.  Honorable Owen Evans, Trial Judge.  Mother seeks appellate review of the October 15, 2020 joint custody order, which memorialized in pertinent part the mediation agreement. The three propositions of error may be condensed into these two arguments: 1) that the trial court erred when it determined certain aspects of the mediation agreement (i.e. provisions allowing the parents to delegate their custodial time to family members) to be in the best interests of the minor child and 2) that the trial court erred by finding the mediation agreement to be fair and reasonable. Upon the record submitted, we do not find the appealed from order to be in error. The October 15, 2020 Tulsa County District Court order is AFFIRMED. Opinion by PEMBERTON, P.J.; SWINTON, C.J., and BELL, J., concur.  August 19, 2021

119,369  –  In the Matter of The Estate of Donna Lavon Stone-Kaplan, Deceased: Patrick Lavon Stone, Plaintiff/Appellant, v. Scott Kaplan, as personal representative of the estate, Defendant/Appellee, v. Kentucky Fried Chicken of Oklahoma, Inc., Defendant in Cross-Claim. Appeal from the District Court of Pontotoc County, Oklahoma.  Honorable Theresa Dreiling, Trial Judge. This appeal from a summary adjudication turns on the determination of when the statute of limitations commences for a promissory note and two checks, all of which were loans payable on demand. For a promissory note payable on demand, the Uniform Commercial Code governs the statute of limitations and provides that an action to enforce the obligation of a party to pay the note must be commenced within six (6) years after the demand. If no demand for payment is timely made to the maker, an action to enforce the note is barred if neither principal nor interest on the note has been paid for a continuous period of ten (10) years. Patrick Lavon Stone’s demand for repayment of the Promissory Note was timely made, and his action was filed within the statute of limitations. For a loan payable on demand, as were both checks at issue, a present debt is created and the statute of limitations begins to run from the date of the loan unless contractually agreed to otherwise. For the debts associated with the two checks, the parties did not contractually agree to toll the three year statute of limitations applicable to oral contracts until demand of payment on the loans were made. Because Mr. Stone did not demand repayment of the loans associated with the checks within the statutorily allotted timeframe, the related claims were barred. Therefore, we AFFIRM the trial court’s dismissal of the claims related to the checks, but reverse the dismissal of Mr. Stone’s claim associated with the promissory note. Opinion by PEMBERTON, P.J.; SWINTON, C.J., and BELL, J., concur.  August 19, 2021

118,720  –  Tracy Turner, on behalf of Groovy Cats, LLC, Plaintiff/Appellant, v. City of Tulsa Board of Adjustment, Defendant/Appellee. Appeal from the District Court of Tulsa County, Oklahoma.  Honorable Kelly M. Greenough, Trial Judge. Groovy Cats, LLC initially appealed to the district court the City of Tulsa’s Board of Adjustment’s denial of Groovy Cats’ application for a variance to open a medical marijuana dispensary within 1,000 feet of another dispensary. Within the district court matter, the Board of Adjustment filed a motion for summary judgment, to which Groovy Cats filed no response. Due to the lack of any dispute of material facts, the district court granted the Board of Adjustment’s motion. Groovy Cats then lodged this appeal, asserting the district court erred in granting summary judgment because a dispute as to the material facts existed. A party objecting to a summary judgment motion must file a response supported by permissible evidence (e.g. an affidavit made on personal knowledge) in order to create a fact issue necessary to overcome summary adjudication. 12 O.S. § 2056(E) and District Court Rule 13(b). Because Groovy Cats filed no response to the Board of Adjustment’s motion for summary judgment and provided no evidence of a material fact dispute, the district court properly granted summary judgment. Therefore, we AFFIRM. Opinion by PEMBERTON, P.J.; SWINTON, C.J., and BELL, J., concur.  August 19, 2021

Division IV

119,126 — In the Matter of the Termination of Parental Rights to:  A.G.C., C.M.C., and B.J.C., Minor Children, Jesus Camargo, Jr., Appellant, vs. Janna Driver, Appellee.  Appeal from an Order of the District Court of Oklahoma County, Hon. James M. Siderias, Trial Judge.  Jesus Camargo, Jr. (Natural Father) appeals the trial court’s finding that his minor children, A.G.C., C.M.C., and B.J.C, are eligible for adoption without his consent.  Natural Father alleges the trial court erred by finding his consent to the adoption was not required.  Petitioners moved for the adoption to proceed without his consent pursuant to 10 O.S.2011, § 7505-4.2(H)(1) based on a failure to establish and/or maintain a substantial and positive relationship with the children for 12 consecutive months out of the last 14 months immediately preceding the filing of the adoption petition.  Natural Father alleges that section 7505-4.2(H)(2) provides him with a defense to his failure to establish/maintain such relationship for the statutory period.  We find that the trial court did not err by finding such statutory defense was not available to Natural Father.  Thus, the trial court did not err in finding clear and convincing evidence that Natural Father’s consent to the children’s adoption was not required.  Therefore, we affirm the trial court’s order.  AFFIRMED.  Opinion from Court of Civil Appeals, Division IV, by HIXON, P.J.; FISCHER, V.C.J., concurs, and RAPP, J., concurs in result.  August 19, 2021

119,141 – In the matter of the adoption of H.S., E.S., and L.S., minor children, Christopher Sena and Heather Sena, Appellants, vs. Jessica Sena, Appellee.  Appeal from Order of District Court of Lincoln County, Honorable Sheila G. Kirk, Trial Judge.  Appellants Christopher and Heather Sena appeal the decision of the district court denying their application to determine minor children H.S., E.S. and L.S. eligible for adoption without the consent of their mother, Appellee Jessica Sena.  After review of the record and applicable law, we find that the Senas failed to prove by clear and convincing evidence that Mother willfully failed to support and failed to maintain a positive and substantial relationship with the children during the relevant period, pursuant to 10 O.S.2011 § 7505-4.2(B),(H)(1).  Consequently, we affirm the order of the district court denying their application to determine the children eligible for adoption without Mother’s consent.  AFFIRMED.  Opinion from Court of Civil Appeals, Division IV, by FISCHER, V.C.J.; HIXON, P.J., and RAPP, J., concur.  August 20, 2021

119,162 – State of Oklahoma, ex rel., Michael Fields, District Attorney, District 4, Plaintiff/Appellee, vs. $16,270.00 United States Currency, Respondent, DeMarcus Thompson, Defendant/Appellant.  Appeal from an Order of the District Court of Garfield County, Hon. Paul K. Woodward, Trial Judge.  The defendant, DeMarcus Thompson (Thompson), appeals a judgment denying his Motion to Vacate an Order of Forfeiture of $16,270.00 entered in a forfeiture action initiated by the plaintiff, State of Oklahoma (State).  Thompson filed a Motion to Vacate an Order of Forfeiture.  Notwithstanding being informed by the trial court that the motion would be decided under Rule 4(h) of the District Court Rules, the Motion to Vacate was placed on the trial court’s motion docket and heard by a substitute judge.  No notice of the motion docket hearing was given to Thompson or his attorney and neither appeared.  Notice is fundamentally required for Due Process of law.  The absence of notice renders the judgment denying the Motion to Vacate void.  The Journal Entry denying the Motion to Vacate is reversed, the default judgment is vacated, and the case is remanded for further proceedings.  REVERSED, VACATED, AND REMANDED FOR FURTHER PROCEEDINGS.  Opinion from Court of Civil Appeals, Division IV, by RAPP, J.; FISCHER, V.C.J., and HIXON, P.J., concur. August 24, 2021

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