Bowles v. Goss

• Decision Date: 16 July 2013
• Docket Number: No. 109,871.,Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2.,109,871.
• Citation: 309 P.3d 150
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
• Parties: Todd BOWLES and Misty Bowles, Plaintiffs/Appellees, v. Kay D. GOSS, Defendant/Appellant, and Steven M. Goss, doing business as Goss Feed Company and Goss Cattle Company; Goss Feed Company, L.P.; Goss Land & Cattle Company, L.P.; KDG Company; Goss Holding Company; AGCO Corporation; Allis Chalmers Corporation; and Paul Gober, doing business as Gober Materials, Gober Post Frame Materials, Paul Gober Construction, Inc. or Gober Easley, Inc., Defendants.

309 P.3d 150

Todd BOWLES and Misty Bowles, Plaintiffs/Appellees,

v. Kay D. GOSS, Defendant/Appellant,andSteven M. Goss, doing business as Goss Feed Company and Goss Cattle Company; Goss Feed Company, L.P.; Goss Land & Cattle Company, L.P.; KDG Company; Goss Holding Company; AGCO Corporation; Allis Chalmers Corporation; and Paul Gober, doing business as Gober Materials, Gober Post Frame Materials, Paul Gober Construction, Inc. or Gober Easley, Inc., Defendants.

No. 109,871.Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2.

Court of Civil Appeals of Oklahoma, Division No. 2.

July 16, 2013.

Appeal from the District Court of Seminole County, Oklahoma; Honorable, Gary P. Snow, Trial Judge.

AFFIRMED AS MODIFIED.

Clifton D. Naifeh, Norman, Oklahoma, for Plaintiffs/Appellees.

Jack Mattingly, Jr., The Mattingly Law Firm, P.C., Seminole, Oklahoma, for Defendant/Appellant.

JOHN F. FISCHER, Presiding Judge.

¶ 1 Kay D. Goss appeals a July 18, 2011 order and injunction issued by the district court in aid of execution and the order overruling his motion to reconsider the July 2011 order. Finding no error in the order overruling Goss's motion to reconsider, that order is affirmed. The July 2011 order is modified as specified herein but otherwise affirmed.

BACKGROUND

¶ 2 Todd and Misty Bowles obtained a judgment against Goss and others on April 21, 2006. The Bowleses registered their judgment as a lien on Goss's property and have attempted to collect that judgment with little success. According to the Bowleses, Goss attempted to discharge the judgment by filing for protection pursuant to federal bankruptcy laws. However, the federal bankruptcy court refused to discharge the judgment finding that the judgment resulted from Goss's fraudulent acts. Pursuant to the Bowleses' request in this matter, the district court issued an order on April 15, 2011, for Goss to appear and answer as to assets. That order also prohibited Goss from transferring, encumbering or otherwise disposing of any assets not exempt by law until further order of the court. The orders that are the subject of this appeal resulted from the hearing on assets conducted by the Bowleses on May 12, 2011, pursuant to the district court's April 2011 order. The district court's ruling at the hearing was first announced from the bench then memorialized in a minute order and formalized in an order filed July 18, 2011. Within ten days, Goss filed a motion to reconsider the July 18, 2011 order. That motion was denied. Gross appeals both the denial of his motion to reconsider and the July 2011 order.

STANDARD OF REVIEW

¶ 3 The initial proceeding that is the subject of this appeal was conducted pursuant to the post-judgment discovery and collection provisions of Title 12 O.S.2011 §§ 841 through 862. Such matters are supplemental proceedings in aid of execution and are equitable in nature. Stone v. Coleman, 1976 OK 182, ¶ 2, 557 P.2d 904;Treadway v. Collins, 1947 OK 98, ¶ 11, 178 P.2d 886, 889. “[T]he propriety of affording equitable relief, [pursuant to these provisions] rests in the sound discretion of the court, to be exercised according to the circumstances and exigencies of each particular case.” Mid–America Corp. v. Geismar, 1963 OK 65, ¶ 12, 380 P.2d 85, 88.

¶ 4 Goss's challenge to the district court's statutory authority to order the post-judgment relief granted in the July 18, 2011 order, without requiring the Bowleses to post security, raises legal issues. Legal questions involving statutory interpretation are subject to de novo review. Samman v. Multiple Injury Trust Fund, 2001 OK 71, ¶ 8 and n. 5, 33 P.3d 302, 305 and n. 5.De novo review requires a non-deferential, plenary and independent review of the district court's legal rulings. Heffron v. District Court of Oklahoma County, 2003 OK 75, ¶ 15, 77 P.3d 1069, 1076.

¶ 5 Further, Goss's motion to reconsider sought re-examination of the district court's July 18, 2011, order and is properly treated for appellate purposes as a motion for new trial. “A motion seeking reconsideration, re-examination, rehearing or vacation of a judgment or final order, which is filed within 10 days of the day such decision was rendered, may be regarded as the functional equivalent of a new trial motion, no matter what its title.” Horizons, Inc. v. Keo Leasing Co., 1984 OK 24, ¶ 4, 681 P.2d 757, 758–59. “A trial court is vested with wide discretion on whether to grant a new trial.” Propst v. Alexander, 1995 OK 57, ¶ 8, 898 P.2d 141, 144. “Because a trial court's discretion [in ruling on a motion for new trial] is broad its ruling will not be disturbed by the reviewing tribunal in the absence of a clear showing of a manifest error or abuse of discretion with respect to a pure, simple and unmixed material question of law.” Capshaw v. Gulf Ins. Co., 2005 OK 5, ¶ 7, 107 P.3d 595, 600. “An abuse of discretion occurs when a decision is based on an erroneous conclusion of law or where there is no rational basis in evidence for the ruling.” Spencer v. Oklahoma Gas & Elec. Co., 2007 OK 76, ¶ 13, 171 P.3d 890, 895 (footnote omitted).

ANALYSIS

¶ 6 During the May 2011 hearing on assets, Goss testified that he received monthly checks for (1) Social Security benefits, (2) disability payments from the Department of Veterans Affairs (VA) and (3) a fireman's benefit. He also testified that his medical needs were provided for by the VA. Goss disclosed that he had acquired mineral interests in some oil and gas properties. He also disclosed that, after the Bowleses' judgment was filed, he had taken out a “reverse mortgage” or line of credit on his homestead for a maximum amount of $104,000, of which he had used all but approximately $31,000. According to Goss, the $31,000 was available on demand, but his lender was not required to disburse any of those funds unless he made a written request for additional funds.

¶ 7 At the conclusion of the hearing, the Bowleses asked the district court to order Goss to pay them the $31,000 balance on the line of credit, to enjoin Goss from transferring the mineral interests and to order that any funds from those interests be held in trust or paid to them. The district court stated its view that all of Goss's assets were subject to the Bowleses' judgment lien but that some of those assets, including Goss's homestead, were exempt from execution. Therefore, the court denied the Bowleses' request to require Goss to borrow the remaining balance of the line of credit but did order that any funds obtained from that source be paid to the Bowleses. The district court also ordered that all money received by Goss, including lease monies and run checks from his mineral interests be paid to satisfy the Bowleses' judgment. The court continued the prohibition included in its April 2011 order for the hearing on assets against transferring or encumbering any assets. These rulings were memorialized in the district court's July 18, 2011 order.

¶ 8 Goss's motion to reconsider the July 2011 order and injunction argued three points: (1) the district court failed to order the posting of security for that injunction required by 12 O.S.2011 § 1392; (2) the orderthat all of Goss's assets were subject to the Bowleses' judgment lien was overly broad and violated Oklahoma's homestead and exemption statutes found in 31 O.S.2011 § 1; and (3) the district court lacked authority to enjoin Goss from transferring or encumbering his assets. Attached to Goss's motion are two exhibits, a partial release of judgment signed by counsel for the Bowleses affecting several lots in Block 8 of the East Maud addition to the Town of Maud, and a blank form home equity conversion mortgage.

I. Issues Preserved for Appeal

¶ 9 As a preliminary matter, we address the Bowleses' argument that Goss's appellate arguments are limited to those specifically raised in his motion for new trial. The Bowleses rely on 12 O.S.2011 § 991(b): “If a motion for a new trial be filed and a new trial be denied, the movant may not, on the appeal, raise allegations of error that were available to him at the time of the filing of his motion for a new trial but were not therein asserted.” The Supreme Court has consistently invoked this statute to restrict the appellate issues to those raised in a motion for new trial. See, e.g., Slagell v. Slagell, 2000 OK 5, 995 P.2d 1141;Horizons, Inc. v. Keo Leasing Co., 1984 OK 24, 681 P.2d 757;Federal Corp. v. Indep. Sch. Dist. No. 13, Pushmataha Co., 1978 OK CIV APP 55, 606 P.2d 1141 (approved for publication by the Oklahoma Supreme Court). A “motion for new trial ... acts to limit the issues reviewed on appeal to those raised by that motion.” City of Broken Arrow v. Bass Pro Outdoor World, L.L.C., 2011 OK 1, ¶ 11, 250 P.3d 305, 311. The Bowleses' argument is well-grounded. And, because Goss's motion was decided by the district court without a hearing, the exception permitting a party to appeal issues not listed in a motion for new trial but actually presented to and considered by the district court is not applicable. Horizons, 1984 OK 24, ¶ 8, 681 P.2d at 759–60. We will limit the issues in this appeal to those raised in Goss's motion for new trial.

II. Goss's Security Argument

¶ 10 Goss argued in his motion for new trial that the district court's prohibition on the transfer or encumbrance of assets could not be effective until the Bowleses posted the security required by 12 O.S.2011 § 1392. Goss's “security argument” is unpersuasive. Section 1392 provides:

Unless otherwise provided by special statute, no injunction shall operate until the party obtaining the same shall give an undertaking, with sufficient surety, to be approved by the clerk of the court granting such injunction, in an amount to be fixed by the court or judge allowing the same, to secure the party injured the damages he may sustain, including reasonable attorney's fees, if it be finally decided that the injunction ought not to have been...