Furr v. Thomas
| Decision Date | 24 September 1991 |
| Docket Number | No. 72627,72627 |
| Citation | 817 P.2d 1268 |
| Parties | Lester FURR; Sharon Furr; Henry L. Madden; Peggy J. Madden; Darlene Dodson; J.W. Dodson; Joseph S. Hale; Brenda J. Hale; Ernest J. Henson, Jr.; Charlotte Henson; Loyd Furr; Norma Furr; Jack Henson; Juanita Henson; Ray Henson; Modeen Henson; Robert M. Rudloff; Charlotte Rudloff; Ron Schaeffer; Linda Schaeffer, Ray Brannon; Henrietta Brannon; John A. Lindley; Sheryl Lindley; S.L. Bowman; Roe Ann Welsh; Syble Bandy; Joe L. Muse; Peggy A. Muse; and Jerry Stevenson, Appellants, v. Paul W. THOMAS and Billie M. Thomas, Individually and as Trustees for Gaia Thomas Patterson; Paul W. Thomas, Jr.; Tammara L. Thomas; William C. Thomas and John A. Thomas, Beneficiaries and as individuals, Appellees. |
| Court | Oklahoma Supreme Court |
Certiorari from Court of Appeals, Division 4; D.C. Revard, District Judge, Pawnee County.
Certiorari granted to all appellee/defendants to review Court of Appeals' decision reversing in part and affirming in part. We hold the trial court correctly set aside the judgment against the developer's adult children for want of in personam jurisdiction. We affirm the judgments as rendered below against the father/developer and his wife.
CERTIORARI PREVIOUSLY GRANTED; COURT OF APPEALS' OPINION VACATED; TRIAL COURT AFFIRMED.
Curtis A. Parks, Michael J. Beard, Parks & Beard, Tulsa, for appellants and counter-appellees.
Donald L. Kahl, Kent L. Jones, Orval E. Jones, Hall, Estill, Hardwick, Gable, & Nelson, P.C., Tulsa, for appellees and counter-appellants.
Residential purchasers prevailed below as plaintiffs in their lawsuit for their seller/developers' failure to build a hard-surfaced road to their homes as promised. The jury awarded actual damages for breach of contract and punitive damages for fraud. After the Court of Appeals reversed in part and affirmed in part, the three principal issues presented here on certiorari are resolved thus: (1) The trial court was correct in setting aside the judgment as to the adult children of the developer for lack of in personam jurisdiction. (2) The judgment against the developer's wife for actual damages only is affirmed. (3) The judgment against the developer himself for actual and punitive damages, as modified by the trial court, is affirmed.
In 1974, a trust was established to hold certain real property for the benefit of the children of Paul and Billie Thomas. The parents were named as trustees. Over the next three years, Paul (Father or Developer) and Billie (Wife or Mother, and together with Paul, referred to as Sellers) then developed the land and sold it to the Plaintiffs (Purchasers). The sales contracts provided that within two years, the Sellers would construct a two mile all-weather smooth surface road to serve the development. The promised black-top road was never built, but Father did build a gravel road which he maintained until suit was filed.
The Purchasers filed suit approximately nine years after the sale, alleging breach of contract and fraud, seeking actual and punitive damages. It is uncontested that during the interval between the execution of the contract and the filing of suit, the trust expired and the children became the successors in interest to the contracts. Suit was filed against Father, Mother, and Children, both individually and in their respective capacities as trustees and beneficiaries.
The parties do not dispute that summons only issued to Father, and that he was the only defendant served with summons. Father met with an attorney who agreed to handle the case. Counsel entered an appearance for the "Defendant, Paul W. Thomas Allen, (sic)" reserving time to plead. Thereafter he filed an Answer, and then other pleadings, on behalf of the "Defendants." The Pretrial Conference Order shows his appearance for "the Defendants." The lawsuit proceeded for over two years, with numerous contacts and meetings between Father and his attorney. However, the Children were never contacted by the attorney, and the Father stated that he was keeping the Children apprised of the proceedings. Father was very insistent that Children not be bothered by the suit.
Purchasers filed a motion for summary judgment. Because of statements made by Father in his deposition and because Father wanted to alleviate the necessity of deposing Children, the attorney confessed liability and sought jury trial only as to damages and the issue of fraud. At trial, the jury returned a verdict of $175,000.00 in actual damages and $90,000.00 in punitive damages. Children and Mother filed motions to vacate, premised on the lack of notice. The trial court sustained the Children's motion, finding that they had not appeared in the action nor consented to the exercise of jurisdiction over them. The trial court sustained the award of actual damages against both Father and Mother, but found that the award of punitive damages was not supported as against Mother. The trial court further reduced the punitive damage award against Father to $60,000.00 because of his past expenditures in the upkeep of the gravel road.
Purchasers appealed the ruling of the trial court vacating the judgment as to Children. Father and Mother appealed the judgment regarding fraud and punitive damages. They also sought to assert a statute of limitations defense. The Court of Appeals reversed the trial court's ruling as to Children, holding that they had failed to show by clear and convincing evidence that counsel lacked authority to represent them in the action. The trial court was affirmed in all other respects.
Father, Mother, and Children petitioned this Court for certiorari. On September 18, 1990, we granted certiorari to all three. The Purchasers have not sought certiorari. We hereby vacate the opinion of the Court of Appeals, and affirm the judgment of the trial court. We will address each of the certiorari petitioners separately to avoid confusion.
The determinative issue raised by the adult Children is the question of in personam jurisdiction. They had not been served with summons, nor had they authorized any attorney to appear for them. They urge that they had no notice that they had been named as parties in this lawsuit until they were advised that the jury had returned a verdict against them. Upon motion by Children, all of whom were adults, the trial court found that they had not been lawfully notified of their involvement and potential liability in the lawsuit, and vacated the judgment against them. Purchasers assert that the attorney had the apparent authority to represent the Children and thus they should be bound by the judgment. On appellate review, the Court of Appeals held that Children had failed to meet their burden of showing by clear and convincing evidence that they did not know they were parties in the lawsuit.
A trial court's judgment or ruling as to a motion to vacate will be affirmed if sound discretion was exercised upon sufficient evidence to vacate the judgment. Schepp v. Hess, 770 P.2d 34, 39 (Okla.1989). On the Motion to Vacate at the trial level, Children had the burden of showing by clear and convincing evidence that the attorney claiming to represent "the Defendants" did not have the authority to represent them. Burkhart v. Lasley, 182 Okl 43, 75 P.2d 1124 (Okla.1938). The evidence presented to the trial court included affidavits by all children, by Father and by the attorney. The affidavits of the Children stated that they did not learn that they were named as parties in the lawsuit until after August 22, 1988, the date of the jury verdict, and that the attorney did not have the authority to represent them in this lawsuit. They also stated that they did not authorize anyone to obtain counsel for them or on their behalf.
The attorney's affidavit stated that the Children were never served with summons, and that he never contacted them or received their permission to represent them. He stated that none of the Children contacted him to represent them in this matter. The Father's affidavit stated that he hired the attorney to represent himself but not the Children. It stated that he did not even discuss such representation.
The trial court also had before it the depositions of Father and his attorney. During these depositions, Father stated that he did not realize that the Children were being sued individually. He thought that they were involved only as beneficiaries of the trusts. The attorney stated that he believed Father was hiring him to represent all of the parties, but that he never spoke with Children about the action. On two different occasions, two of the Children telephoned him with regard to other legal matters, and in passing inquired as to how "the lawsuit" was progressing. However, the attorney emphatically denied that any further discussions occurred and also stated that Father repeatedly told him that he did not want the Children involved.
The Court of Appeals relied on the fact that Father had discussed the lawsuit with the Children and that they were aware of its existence. However, this alone is not sufficient to defeat the trial court's ruling. There is no evidence to show that the Children authorized the attorney to represent them in the suit. The depositions of both the attorney and Father clearly show that Father made every attempt to keep the Children separate and apart from the lawsuit. He repeatedly stated that he did not want them bothered and he would handle the matter.
To be bound by a judgment as a party defendant one must either (1) be lawfully served with summons in the case or (2) voluntarily, either personally or through an attorney, enter an appearance therein. See Ford v. Ford, 766 P.2d 950, 954 (Okla.1988); Matter of Dana, 656 P.2d 253, 255 (Okla.1983); Turner v. Big Four Petroleum, 274 P.2d 524, 526 (Okla.1954).
We believe that the trial court had sufficient evidence to...
To continue reading
Request your trial
-
Warren v. Stanfield (In re Stanfield)
... ... Thomas, 1955 OK 33, 280 P.2d 474, 476 (whether laches will be applied in any particular case does not depend on lapse of time, but on facts and ... 50. Sullivan v. Buckhorn Ranch Partnership, 2005 OK 41, 32, 119 P.3d 192, 202; Furr v. Thomas, 1991 OK 93, 23, 817 P.2d 1268, 1272. 51. Reddell v. Johnson, 1997 OK 86, 10, 942 P.2d 200, 203. 52. Generally, issues consist of ... ...
-
Hathaway v. MEDICAL RESEARCH & TECH. AUTH.
... ... 28. Title 12 O.S.1991 § 2008, see note 19, infra ... 29. Furr v. Thomas, see note 19, infra, and its discussion of 12 O.S.1991 § 2008(C), note 19, infra ... 30. Lucas v. Independent ... ...
-
Reeds v. Walker
... ... Reeds, and Ellen O. Reeds, Co-Guardian of the Estate of Phillip M. Reeds, and Phillip M. Reeds, Petitioners, ... The Honorable Thomas S. WALKER, Judge of the District Court, Carter County, Oklahoma, Respondent ... National American Insurance Company, Plaintiff/Appellee, ... Jim Slemons Imports, Inc., 803 F.2d 1488, 1497 (9th Cir.1986). Failure to plead an affirmative defense operates as a waiver. Furr v. Thomas, 1991 OK 93, ¶ 23, 817 P.2d 1268, 1272 (statute of limitations); RST Serv. Manu. Inc. v. Musselwhite, 1981 OK 45, ¶ 6, 628 P.2d 366, ... ...
-
Sisk v. JB Hunt Transport, Inc.
... ... 31 Section 100 is an affirmative defense. 12 O.S. § 2008(C)(18). Failure to plead it as an affirmative defense operates as a waiver. Furr v. Thomas, 1991 OK 93, ¶ 23, 817 P.2d 1268 ... Similarly, as a statute of limitations, § 100 is also subject to tolling. Kordis v. Kordis, 2001 OK ... ...