Erwin v. Frazier

• Decision Date: 13 June 1989
• Docket Number: No. 67880,67880
• Citation: 786 P.2d 61,1989 OK 95
• Parties: Erik C. ERWIN, Appellant, v. Phil FRAZIER, Appellee.
• Court: Oklahoma Supreme Court

Page 61

786 P.2d 61

1989 OK 95

Erik C. ERWIN, Appellant, v. Phil FRAZIER, Appellee.

No. 67880.

Supreme Court of Oklahoma.

June 13, 1989.

Rehearing Denied Feb. 13, 1990.

Certiorari to the Court of Appeals, Oklahoma City Divisions, District Court of Tulsa County; Robert J. Scott, Judge.

In an action for attorney negligence, issues of whether divorce decree represents the divorcing parties' agreement, and whether the manner of its preparation constitutes negligence which injured the plaintiff present material facts in controversy rendering the matter inappropriate for summary judgment. Certiorari having been granted, the Court of Appeals opinion is VACATED, the order of the trial court is REVERSED, and the matter is REMANDED.

Jerry Melone, John M. Schroeder, Tulsa, for appellant.

Stephen C. Wilkerson, Tulsa, for appellee.

SUMMERS, Justice.

Plaintiff Erwin appeals from the trial court's order granting summary judgment to the defendant in this action for attorney malpractice. The Court of Appeals affirmed the trial court's order, and we have granted certiorari. Because we find that the presence of material fact issues precludes summary judgment in this case we vacate the opinion of the Court of Appeals, reverse the order of the trial court, and remand for further proceedings below.

In 1983, Plaintiff Erwin retained attorney/Defendant Frazier to represent him in a divorce action. The divorce settlement included a $25,000 cash payment to the ex-wife, which payment was to be made following the sale of certain real property. The divorce court received and approved the settlement, and defendant Frazier prepared the decree.

Shortly after defendant filed the divorce decree the property was sold. The parties disputed the method of distribution of the sale proceeds. Erwin contends that the $25,000 was to be distributed to his ex-wife, and that the remainder was to be divided equally between them. He further contends that Frazier represented to him that the ex-wife's lump sum was to come "off the top". At a post-decree hearing, however, the divorce court ruled that proceeds from the sale would be divided, and that Erwin would then pay the $25,000 from his share of the proceeds.

Erwin sued, alleging that the defendant negligently prepared the decree to reflect something other than the agreement between the divorcing parties, and that defendant's negligence proximately caused his financial injury in the sum of $12,500. The trial court sustained the defendant's motion for summary judgment. Erwin appeals.

The defendant claims here, as he did below, that no fact controversy exists, and that plaintiff failed to prove facts sufficient to satisfy our previous ruling in Allred v. Rabon, 572 P.2d 979 (Okla.1977). We disagree.

District Court Rule thirteen provides for summary judgments which function as a vehicle for the prompt administration of justice and to further the efficiency of the court system. Flick v. Crouch, 434 P.2d 256, 262 (Okla.1967). We recognize, however, that "summary judgment must not be allowed to deprive a litigant of a jury trial of disputed issues of fact." Flanders v. Crane Co., 693 P.2d 602, 605 (Okla.1984).

In Flanders, we reviewed Oklahoma law regarding summary judgment, particularly as it applies in negligence cases.

"Oklahoma procedural law dictates that summary judgment is appropriate only when it appears that there is no substantial controversy as to any material fact and that one of the parties is entitled to judgment as a matter of law. 12 O.S. 1983, Ch.2, App.Dist.Ct. r. 13(d). The purpose of this provision is to avoid unnecessary jury trials, Flick v. Crouch, 434 P.2d 256, 262 (Okla.1967), by allowing the trial court to look beyond the pleadings to various evidentiary materials in order to determine whether there is any issue of fact which must be submitted to a jury. Since the trial court's role is limited to merely determining whether there are any such issues of fact, there can be no trial of fact issues on a motion for summary judgment. The court may not weigh the evidence. Stuckey v. Young Exploration Co., 586 P.2d 726, 730 (Okla.1978). Additionally, in order for a court to find that there is no substantial controversy as to any material fact raised by the issues, it must appear not only that there is no dispute as to such facts themselves, but also that reasonable people exercising fair and impartial judgment could not reach differing conclusions upon the undisputed facts. Northrip v. Montgomery Ward and Co., 529 P.2d 489, 493 (Okla.1974). Furthermore, all inferences and conclusions to be drawn from the undisputed facts must be viewed in the light most favorable to the party opposing the motion. Northrip, supra, at 496, 497. As these considerations strongly suggest, summary judgments are not favored Love v. Harvey, 448 P.2d 456, 462 (Okla.1968); and, they should be granted only where it is 'perfectly clear' that there are no issues of material fact in a case, Northrip, supra, at 497. Indeed, even when a judge believes that a directed verdict will be necessary, he or she should ordinarily allow the evidence to be heard and then direct a verdict rather than grant summary judgment. Northrip, supra. This reluctance should be even more pronounced in negligence cases because negligence is so much a question of fact which varies from one situation to another. See Prickett v. Sulzberger & Sons Co., 157 P. 356, 357 (Okla.1916); Smith v. American Flyers, Inc., 540 P.2d 1212, 1214 (Okla.App.1975) ... Under Oklahoma law, questions concerning negligence, contributory negligence and assumption of the risks are for the trier of fact." Flanders, supra at 605, 606.

In measuring the present case against these standards, we first examine the defendant's claims on summary judgment. He contends initially that no fact issues exist which justify a trial. In support of this claim, the defendant argues that the Court at the post decree hearing ruled that all parties understood the decree and agreement. We disagree. The court, though finding that the terms of the decree clearly required payment of the $25,000 after division of the sale proceeds, stated from the bench:

"It is not up to me to determine whether that was the agreement of the parties prior to going in and taking the decree or not." (Tr. P.152).

In response to the defendant's motion, Erwin admits that his ex-wife was to receive a $25,000 cash settlement, which was to come from proceeds of the sale of certain realty. He responds by affidavit, however, that the attorney represented to him that the cash payment would come "off the top" of the sale proceeds, and argues that the defendant drafted the divorce decree contrary to his understanding of the settlement agreement, and thus there are issues of controverted fact upon which reasonable minds might differ.

Additionally, two letters submitted by the plaintiff in reponse to defendant's motion for summary judgment clearly controvert defendant's presentation of facts. A September, 1983 letter from the ex-wife's attorney to defendant Frazier discusses the sale of realty and payment of the ex-wife's share which she brought into the marriage "off the top", with the balance of any net proceeds to be divided equally between the divorcing parties. During the dispute following the sale of the realty, Frazier wrote in May, 1984 to the ex-wife's attorney that he drafted the decree working from the September, 1983 letter above referred to, and that the understanding was that the ex-wife would receive her money "off the top" with the balance being divided equally.

Erwin further presents the divorce decree, and the...