Auto. Fin. Corp. v. Rogers, Case No. 115,626

• Decision Date: 01 March 2019
• Docket Number: Case No. 115,626
• Citation: 437 P.3d 196
• Parties: AUTOMOTIVE FINANCE CORPORATION, Plaintiff/Appellee, v. Marsha Annette ROGERS, Individually, and d/b/a Automotive Solutions, Defendant/Appellant.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

437 P.3d 196

AUTOMOTIVE FINANCE CORPORATION, Plaintiff/Appellee,

v.Marsha Annette ROGERS, Individually, and d/b/a Automotive Solutions, Defendant/Appellant.

Case No. 115,626

Court of Civil Appeals of Oklahoma, Division No. 3.

FILED: March 1, 2019

Mandate Issued: March 27, 2019

Kara Pratt, BARBER & BARTZ, Tulsa, Oklahoma, for Plaintiff/Appellee,

Keith O. McArtor, Amanda C. Mims, Tulsa, Oklahoma, for Defendant/Appellant.

Opinion by Barbara G. Swinton, Judge:

¶ 1 In the proceeding filed by Plaintiff/Appellee Automotive Finance Corporation (Creditor) to enforce a foreign judgment pursuant to the Uniform Enforcement of Foreign Judgments Act, 12 O.S. 2011 §§ 719 - 726 (the Act),¹ Defendant/Appellant Marsha Annette Rogers, individually and d/b/a Automotive Solutions (Debtor) appeals a court order denying her motion seeking a determination of dormancy of judgment. Based on the record and applicable law, we reverse the order.

¶ 2 The appellate record includes only six items. The first is a "Default Judgment Entry" dated November 6, 2006 and signed by a judge from the U.S. District Court in the Southern District of Indiana, Case No. 1:06-cv-1417-SEB-JPG. The federal court judgment finds in favor of Creditor and against Debtor² and grants a total award of $340,560.50 plus attorney's fee and postjudgment interest. Creditor "registered" the "authenticated" federal judgment in Oklahoma by filing it with the Court Clerk of Tulsa County on June 10, 2009, Case No. CJ-2009-4308.³

¶ 3 The second item is a "Garnishment Affidavit" filed March 18, 2010 in CJ-2009-4308. The Affidavit states that Marsha Annette Rogers lists Century Bank as the garnishee and alleges it possessed non-exempt property of Debtor.

¶ 4 The third item in the record, a "Notice of Bankruptcy Filing," was filed in CJ-2009-4308 on August 23, 2010. The Bankruptcy Notice states "the above-named Debtors, Glenn David Chafin and Marsha Annette Chafin, filed on August 4, 2010, a Chapter 7 bankruptcy proceeding in the United States Bankruptcy Court for the Northern District of Oklahoma, such being numbered 1-12686-M."

¶ 5 The fourth item is a "Notice of Renewal of Judgment" that Creditor filed on October 23, 2015. In pertinent part, the Notice of Renewal states "date of Filing with the Court Clerk: November 6, 2006⁴ " and confirmed that no notice of renewal of Judgment has been previously filed with the Court Clerk.

¶ 6 The fifth item is a motion filed by Debtor in CJ-2009-4308 on August 11, 2016, seeking, inter alia ,⁵ a determination that the "foreign judgment ... out of the U.S. Dist. Court of Southern District of Indiana [filed] in this Court on June 10, 2009" is dormant and unenforceable as a matter of law. Citing 12 O.S. 2011 § 735, Debtor argued "no execution or renewal of judgment was filed in the matter until a notice of renewal of judgment was filed on October 23, 2015 more than five (5) years after the Garnishment Affidavit and Summons was filed on March 18, 2010."⁶

¶ 7 The sixth item, the trial court's Order filed December 1, 2016, states an assets hearing was held on November 11, 2016, at which Debtor appeared with counsel. The order further states the trial court denied Debtor's motion, finding Creditor's "judgment is still enforceable." Debtor then filed this appeal, in which no transcript of the hearing was provided because "no stenographic reporting was made."

Standard of Review

¶ 8 The parties do not include a standard of review in their respective brief(s). Selection of the appropriate standard of appellate review requires the correct characterization of the trial court proceedings. In re Assessment of Personal Property Taxes Against Missouri Gas Energy, Div. of Southern Union Co., for Tax Years 1998, 1999, and 2000 , 2008 OK 94, ¶ 17, 234 P.3d 938, 946. This proceeding was filed pursuant to the Act, the purpose of which is enforcement or collection of foreign judgments. Taracorp, Ltd. v. Dailey , 2018 OK 32, ¶ 22, 419 P.3d 217, 220. Said judgments "are treated the same as if they were initially issued in Oklahoma." Id .

¶ 9 The Act's single filing requirement of "an authenticated foreign judgment" alone suggests it is a special proceeding.⁷ Support is further found in § 725 of the Act, which provides "[t]he right of a judgment creditor to bring an action to enforce his judgment instead of proceeding under this act remains unimpaired." Relying, in part, on § 725, Oklahoma courts agree foreign judgments filed pursuant to the Act are not civil actions to which 12 O.S. 2011 § 95's three year statute of limitations applies. See Ford Motor Credit Co. v. Kurz , 2015 OK CIV APP 16, ¶ 5, 344 P.3d 1100 ; Producers Grain Corp. v. Carroll , 1976 OK CIV APP 3, ¶ 10-11, 546 P.2d 285, 287-288 ("The Act was designed as a viable alternative to the traditional method of enforcing foreign judgments by separate lawsuit in which the judgment was considered nothing more than a contract debt...[and] lacked the force of a domestic judgment, except for evidentiary purposes.")

¶ 10 However, the appeal in this case is not brought from an order determining compliance with the Act.⁸ Rather, according to the certified court appearance docket,⁹ the proceeding that is subject to this appeal was filed pursuant to Oklahoma's post-judgment discovery and collection provisions under Title 12 O.S. § 841 et seq . Bowles v. Goss , 2013 OK CIV APP 76, ¶ 3, 309 P.3d 150. Such matters are "supplemental proceedings in aid of execution and are equitable in nature." Id ., (citing Stone v. Coleman , 1976 OK 182, ¶ 2, 557 P.2d 904 ). As here, a "proceeding to disclose assets" pursuant to § 842 is "a special proceeding in an action after judgment." Weaver v. Fourth Nat. Bank of Tulsa , 1953 OK 329, ¶ 4, 263 P.2d 194. A § 842 proceeding is commonly known as a "hearing on assets." See Bowles, ¶ 21. In a § 842 proceeding, a debtor's challenge to the enforceability of a judgment under § 735 is a legal question for the court that is reviewed de novo . Chandler-Frates & Reitz v. Kostich , 1981 OK 74, 630 P.2d 1287.¹⁰

ANALYSIS

Compliance with 12 O.S. § 735

¶ 11 Both parties cite 3M Dozer as authority for their opposing positions on the single question Debtor raises on appeal -- whether the bankruptcy code tolls Oklahoma's dormancy statute, 12 O.S. 2011 § 735, during Debtor's § 362(a) automatic stay to allow Creditor to file a notice of renewal after the judgment's expiration. Section 735 provides that a judgment "shall become unenforceable and of no effect" unless , within five years after its filing in Oklahoma, a judgment creditor has performed specific steps for renewing the judgment.

¶ 12 In 3M Dozer the need to address the tolling issue arose only because, prior to expiration of the judgment's five year extension that was due to expire during the debtor's bankruptcy stay, the judgment creditor had failed to comply in some respect with the statutory requirements for renewing its judgment and extending its judgment lien. Debtor in this appeal has not alleged any errors with the judgment creditor's compliance with § 735, and with no hearing transcript, it is impossible to confirm whether the issue was raised below.

¶ 13 An appellant's failure to raise an issue to the trial court generally prevents this court from addressing the unraised issue because "it is not the function of this court to make first-instance determinations of fact or legal questions which have been neither raised nor assessed at nisi prius ." Broadway Clinic v. Liberty Mutual Ins. Co. , 2006 OK 29, ¶ 26, 139 P.3d 873. Implied in the trial court's order, which expressly finds the "judgment is still enforceable," is necessarily a finding that Creditor did substantially comply with § 735's requirements to prevent its judgment from becoming unenforceable. Unlike in Broadway Clinic , the issue of statutory compliance with § 735 is the basis of the trial court's order and not a first instance question of law.

¶ 14 Moreover, "it is a well known general principle of appellate procedure that legal issues adjudicated on appeal are those which were raised either directly or by implication ." (Emphasis added.) Hedrick v. Commissioner of Dept. Of Public Safety , 2013 OK 98, ¶ 16, 315 P.3d 989, 1002 (J. Edmondson, concurring in result). "Raising an issue either directly or indirectly... would include not only those issues actually raised by parties and adjudicated, but also those fairly comprised by the issues actually raised and the nature of the adjudication."¹¹ Id .

¶ 15 "An issue may be fairly comprised in a different issue....when a necessary part of the trial court's adjudication on a raised issue requires adjudication of a fairly comprised issue because it is within the evidentiary record before the tribunal on its decision." Id . In Creditor's proceeding to enforce a foreign judgment pursuant to the Act by means of a § 842 hearing on assets, the district court record constituted the "evidentiary record" necessary for the trial court's adjudication of the raised issue, the enforceability of the judgment, and the fairly comprised issue, Creditor's compliance with § 735. Because the unraised issue of Creditor's compliance with § 735 is fairly comprised within the issue Debtor raises on appeal and the court's ruling, the unraised legal issue is properly before this Court for review.

¶ 16 Our starting point, which neither party has addressed, is § 735's impact on a federal judgment registered in this state pursuant to the Act. When a judgment creditor has filed a foreign judgment that is enforceable at the time of its registration in Oklahoma, it is to be considered a "new judgment" for purposes of § 735 and "the dormancy period begins to run from the date of registration." U.S. Mortgage v. Laubach , 2003 OK 67, ¶ 13, 73 P.3d 887, 896. As previously explained, the record includes Creditor's federal judgment that was registered by filing it with the court clerk on June 10, 2009, and on that date Creditor's federal judgment became a new judgment for...