Garrett v. Gordon

Citation314 P.3d 264
Decision Date07 October 2013
Docket NumberNo. 109957.,Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2.,109957.
PartiesDelmar Byrl GARRETT, Plaintiff/Appellant, v. Carlotta GORDON, Defendant/Appellee, and Dwayne M. Garrett; Delmar Gene Garrett; Karen Cardin Walsh, Trustee; and Joe L. White; Defendants.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

OPINION TEXT STARTS HERE

Thomas E. Kimble, Law Offices of Thomas E. Kimble, Arlington, Texas, and Sherri K. Anderson, Anderson Law Firm, PLLC, Tulsa, Oklahoma, for Plaintiff/Appellant.

Brian R. Huddleston, Huddleston Law Offices, Tulsa, Oklahoma, for Defendant/Appellee.

JOHN F. FISCHER, Presiding Judge.

¶ 1 Plaintiff/Appellant Delmar Garrett 1 (Delmer) appeals the September 13, 2011, Journal Entry Order of the district court denying his Motion to Vacate Void Judgment, Vacate Partition Order, and Emergency Motion to Stay Sheriff's Sale. The judgment sought to be vacated was entered in a divorce suit in which Delmer was named as a party. Because the judgment roll in the divorce proceeding shows that the district court had personal jurisdiction over Delmer at the time the judgment was entered, he is bound by the terms of that judgment. Therefore, the district court correctly denied Delmer's motion to vacate and we affirm.

BACKGROUND

¶ 2 The dispute at issue in this appeal concerns the ownership of two tracts of real property located in Washington County, Oklahoma, a forty-acre tract and a tract of approximately two acres included in the forty acre tract (collectively, the Property). In a divorce proceeding between Defendant/Appellee Carlotta Gordon (Gordon) and Defendant Dwayne Garrett (Dwayne) styled, Carlotta Colene Garrett n/k/a Carlotta Gordon v. Dwayne Marvin Garrett, filed in Washington County, Case No. FD–94–469, (the Divorce Action) the district court determined that the Property was marital property. In its Journal Entry of Judgment, Final Decree for Dissolution of Marriage (by Default) (the 2006 Decree), entered on February 27, 2006, and filed September 6, 2006, the district court awarded Gordon one-half of her former husband's interest in the Property.

¶ 3 Dwayne appealed the property division order in the 2006 Decree in Carlotta Colene Garrett n/k/a Carlotta Gordon v. Dwayne Marvin Garrett, No. 103,841 (Okla.Civ.App. May 23, 2008). Although this Court affirmed the district court's decision, in consideration of Dwayne's argument that he did not own the Property, we stated:

As a companion to this argument, Garrett asserts that the true property owner is a necessary party to this Divorce Action. He does not cite 12 O.S.2001 § 2019, the statute requiring joinder of persons necessary for adjudication of the matter, or point to any place in the record where the district court was asked to join his father. However, even if this argument were preserved for appeal, it is unpersuasive. Garrett does not argue that the district court lacked jurisdiction over him or his property, nor could he. 43 O.S. Supp.2006 § 121. Further, the district court's Judgment and Decree is effective only as to those who are parties to the case. Fent v. Oklahoma Natural Gas Co., 1994 OK 108, ¶ 15, 898 P.2d 126, 133 (issue preclusion operates to bar from relitigation both correct and erroneous rulings but it cannot be made binding on anyone unless the party against whom the earlier decision is interposed had “full and fair opportunity” to litigate the critical issue in the earlier case). There is no decision in this record that the Judgment and Decree purports to relitigate with respect to the ownership of this property. Nonetheless, if Garrett does not own this property, as he contends, the district court's Judgment and Decree does not affect the rights of the true property owner, who may bring an action to establish ownership. 12 O.S.2001 § 1141.

Carlotta Colene Garrett n/k/a Carlotta Gordon v. Dwayne Marvin Garrett, No. 103,841, *5, n. 1 (Okla.Civ.App. May 23, 2008).2

¶ 4 On October 23, 2009, Delmer filed a Petition in the district court of Washington County, Case No. CS–2009–925 in which he sought to quiet title to the Property. Gordon and Dwayne, among others, were named as defendants. Delmer alleged that he was the owner of the Property, that his title was derived from deeds conveying the Property to his wife, Ruth Garrett and his son, Dwayne Garrett in 1993, that he and Ruth maintained the Property as their homestead continuously for a period in excess of fifteen years, and that they paid the property taxes on the Property from 1994 through 2010. Delmer alleged Ruth's interest in the Property was passed to her heirs at law upon her death, and identified such heirs as himself, and their sons Dwayne and Delmar Gene Garrett. Attached to the Petition was an Affidavit by Dwayne disclaiming any interest in the Property.

¶ 5 Gordon filed an answer and counterclaim to Delmer's petition arguing his claims were barred by the doctrines of res judicata and collateral estoppel. Gordon argued the court in the divorce proceeding determined that the Property was marital property subject to equitable division and awarded one-half of the Property to her and the other half to Dwayne. Gordon further argued this ruling was affirmed on appeal. Based upon such rulings, Gordon claimed she and Delmer were tenants in common, each owning an undivided one-half interest in the Property. For her counterclaim, Gordon sought partition of the Property.

¶ 6 The district court took judicial notice of the Washington County divorce proceeding wherein Gordon was awarded an undivided one-half interest in the Property and the subsequent appeal. The district court found that Gordon was a tenant-in-common with Delmer. The district court ordered the Property partitioned in an order filed January 5, 2011. Delmer, now acting pro se having “relieved [his former counsel] of his duties,” objected to the partition alleging a violation of his right to due process.3 Gordon subsequently filed a motion for order for sheriff's sale, to which Delmer filed a timely objection. Delmer continued to assert sole ownership of the Property and to object to the proceedings claiming that he was never served with process in the Divorce Action. On June 1, 2011, the district court ordered the Property sold at sheriff's sale.

¶ 7 Delmer retained new counsel and filed a combined motion to vacate the 2006 Decree, to vacate the partition order and an emergency request to stay the sheriff's sale. Delmer's motion to vacate argued that the 2006 Decree entered in Washington County Case No. FD–94–469 was void as against him for lack of service of process. Additionally, Delmer argued the Decree should be invalidated as to his interest in the Property, because he was never given notice of any pre-trial conferences nor warned of the consequences of his failure to attend the same. Based on his contention that the 2006 Decree was void as to any purported disposition of his interest in the property, Delmer argued that the district court erred in ordering partition of the Property.

¶ 8 The district court heard oral argument on Delmer's motion but denied the motion in its entirety. It is from the district court's Journal Entry Order filed September 13, 2011, denying Delmer's motion to vacate the 2006 Decree, the order of partition and his request for an emergency stay of the sheriff's sale that Delmer filed the present appeal.4 Our disposition of the two motions to vacate renders consideration of any error in the district court's ruling on Delmer's request for a stay of the sheriff's sale unnecessary.

STANDARD OF REVIEW

¶ 9 Although within the time to do so, Delmer did not file a petition to vacate the 2006 Decree in that action pursuant to 12 O.S.2001 § 1033. Nonetheless, a void judgment may be challenged by motion in a separate proceeding. Norman v. Trison Dev. Corp., 1992 OK 67, ¶ 10, 832 P.2d 6, 10. Delmer's motion to vacate the 2006 Decree in this quiet title action is, therefore, a collateral attack on that judgment. Booth v. McKnight, 2003 OK 49, 70 P.3d 855. As such, appellate review is limited to the judgment roll. Farmers' Union Co–Op. Royalty Co. v. Woodward, 1973 OK 128, ¶ 11, 515 P.2d 1381, 1384. The judgment roll “is generally synonymous with ‘common-law record.’ Booth, 2003 OK 49, ¶ 11, n. 21, 70 P.3d 855, 859. “The record shall be made up from the petition, the process, return, the pleadings subsequent thereto, reports, verdicts, orders, judgments, and all material acts and proceedings of the court.” 12 O.S.2011 § 32.1.

¶ 10 If review of the judgment roll in the Divorce Action shows that the district court had personal jurisdiction over Delmer, the 2006 Decree is facially valid and will be enforced. Booth, 2003 OK 49, ¶ 10, 70 P.3d at 859 (facially valid decrees of a district court are immune from collateral attack even if wrong). The district court's determination regarding personal jurisdiction is a legal conclusion reviewed de novo. Id. ¶ 12, 70 P.3d at 860. The standard of review applicable to the district court's order denying Delmer's motion to vacate the order of partition is discussed in the following section.

JURISDICTION

¶ 11 Although styled as a motion to vacate the order of partition, that order was entered pursuant to 12 O.S.2001 § 1505: “After the interests of all the parties shall have been ascertained, the court shall make an order specifying the interests of the respective parties, and directing partition to be made accordingly.” It is not, however, a judgment of partition. “If partition be made by the commissioners, and no exceptions are filed to their report, the court shall render judgment that such partition be and remain firm and effectual forever.” 12 O.S.2001 § 1511. Orders of partition are not ordinarily final, appealable orders and are subject to revision until a judgment of partition is entered.

An order for partition entered as prescribed by Tit. 12 O.S.1951 § 1505, making no change...

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