Charles Sanders Homes, Inc. v. Cook & Assocs., Eng'g, Inc.

• Decision Date: 23 December 2015
• Docket Number: Case No. 112,323
• Citation: 2016 OK CIV APP 45,376 P.3d 945
• Parties: Charles Sanders Homes, Inc., Plaintiff/Appellee, v. Cook and Associates, Engineering, Inc. and Justin Cook, an individual, Defendants/Appellants, and Romaco, LLC; Occupants of the Premises; Board of County Commissioners and the County Treasurers of Tulsa County, State of Oklahoma, Defendants.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

376 P.3d 945

2016 OK CIV APP 45

Charles Sanders Homes, Inc., Plaintiff/Appellee,

v.Cook and Associates, Engineering, Inc. and Justin Cook, an individual, Defendants/Appellants,andRomaco, LLC; Occupants of the Premises; Board of County Commissioners and the County Treasurers of Tulsa County, State of Oklahoma, Defendants.

Case No. 112,323

Court of Civil Appeals of Oklahoma, DIVISION II .

Filed: December 23, 2015

Mandate Issued: July 18, 2016

Scott R. Eudey, Melinda A. Aycock, Ross & Eudey, PLLP, Broken Arrow, Oklahoma, for Plaintiff/Appellee.

Lawrence D. Taylor, Tulsa, Oklahoma, for Defendants/Appellants.

OPINION BY JOHN F. FISCHER, PRESIDING JUDGE:

¶ 1 Cook and Associates and Justin Cook appeal various post-judgment rulings and an amended judgment in their effort to avoid liability for the deficiency after a sheriff's sale in this mortgage foreclosure action. The Cooks received the required notice of the hearing on the motion to determine their deficiency, which was not constitutionally defective. Therefore, the district court did not err in denying the Cooks' September 11, 2013 motion to vacate the deficiency orders, and the order reflecting that ruling is affirmed. Appeal of the remaining rulings is either premature or time barred.

BACKGROUND

¶ 2 Charles Sanders Homes, Inc. (Homes) sold commercial property to Cook and Associates in 2006. In partial satisfaction of the purchase price, Cook and Associates and Justin Cook signed a promissory note secured by a real estate mortgage on the property. When the note was in default, Homes sued to collect the balance due and foreclose its mortgage. Judgment was granted to Homes, and the property was sold at sheriff's sale for less than the amount of the judgment. The matter was then set for hearing to determine the amount of the deficiency for which Cook and Associates and Justin Cook would be liable. The amount of the Cooks' deficiency was determined to be $93,769.78. A Default Deficiency Judgment against Cook and Associates was filed October 30, 2012, and a Default Deficiency Judgment against Justin Cook was filed February 6, 2013.¹ The Cooks filed motions to vacate these deficiency orders and a motion to reconsider the denial of one of those motions. They appeal the adverse rulings on those motions and an Amended Journal Entry of Deficiency Judgment against Justin Cook filed on October 18, 2013. For the reasons stated in this appeal, we find that only the January 22, 2014 Journal Entry of Final Order denying the Cooks' September 11, 2013 motion to vacate is subject to appellate review.

STANDARD OF REVIEW

¶ 3 A motion to vacate a judgment “is addressed to the sound legal discretion of the trial court and the order made thereon will not be disturbed on appeal unless it clearly appears that the trial court has abused its discretion.” Hassell v. Texaco, Inc ., 1962 OK 136, ¶ 14, 372 P.2d 233

. “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 (footnote omitted).

ANALYSIS

¶ 4 The intended scope of the Cooks' appeal is unclear. Part II of the Amended Petition in Error identifies the October 18, 2013 Amended Journal Entry of Deficiency Judgment against Justin Cook and two January 22, 2014 final orders as the decisions appealed. Part IV states that “three journal entries of ‘final orders' ” are attached as Exhibit A. However, Exhibit A lists five orders: the October 30, 2012, and February 6, 2013 Default Deficiency Judgments; the October 18, 2013 Amended Journal Entry of Deficiency Judgment against Justin Cook; the January 22, 2014 Journal Entry of Final Order denying the Cooks' September 11, 2013 motion to vacate; and the January 22, 2014 Journal Entry of Final Order denying their motion to reconsider. A copy of each of those decisions is attached to Exhibit A to the Amended Petition in Error. Those decisions and the precipitating motions often confuse which defendant is the movant and the subject matter of the motion or decision. We treat those documents as their substance requires. Horizons, Inc. v. K EO Leasing Co. , 1984 OK 24, ¶ 4, 681 P.2d 757

. Further, the Cooks direct their appellate briefing only to assignments of error in refusing to vacate the deficiency judgments. Issues not supported by argument and authority in a party's brief may be deemed waived. In re

Estate of Walker v. Walker , 1985 OK 2, ¶ 4, 695 P.2d 1 ; Okla. Sup. Ct. R. 1.11(k)(1), 12 O.S. Supp. 2013, ch. 15, app. 1. Subject to these constraints, we will address the appealability of each of the five decisions attached to the Cooks' Amended Petition in Error and the arguments tendered for reversal of those decisions.

I. The Initial Proceedings

¶ 5 Homes filed its foreclosure petition on February 12, 2012. Both Cook and Associates and Justin Cook were served with the petition on March 9, 2012, but chose not to appear or defend the action. Judgment was granted to Homes on May 17, 2012, against each of the defendants in the amount of $279,769.78. No appeal was taken and that judgment is final. See Funk v. Payne , 1938 OK 270, 183 Okla. 332, 82 P.2d 976

(in order to assert errors in a judgment of foreclosure it is necessary to appeal from that judgment); First Nat'l Bank of Tulsa v. Colonial Trust Co ., 1917 OK 360, 66 Okla. 106, 167 P. 985 (a judgment of foreclosure is final if not appealed). Therefore, the fact of Cook and Associates' and Justin Cook's liability to Homes and the amount of that liability, subject to appropriate offsets, has been determined and is not challenged in this appeal.

¶ 6 After the May 17, 2012 judgment was entered, three appraisers were appointed as required by law and the property was appraised at $279,000. The property was then ordered to be sold at sheriff's sale. The Cooks did not appear at the sheriff's sale or submit a bid, and the property was sold to Homes. The order confirming the sheriff's sale recites that the property was sold for a purchase price of $186,000, the sale conformed to law and the order of the court, Homes was the highest and best bidder, and the price paid was not disproportionate to the total value of the property. The order confirming that sale was filed August 28, 2012, and not appealed. The Cooks have not challenged the order confirming the sheriff's sale in this appeal.

¶ 7 After the sheriff's sale, the matter was set for hearing to determine the amount of the deficiency for which Cook and Associates and Justin Cook would be liable. Cook and Associates was served but chose not to appear at the hearing. A Default Deficiency Judgment against Cook and Associates in the amount of $93,769.78 was filed October 30, 2012. Homes concluded that it had not obtained service of its motion to determine deficiency on Justin Cook by the time the Cook and Associates deficiency order was entered. Homes subsequently obtained the district court's approval to serve Justin Cook by publication. Service by publication was made and the matter was set for hearing on the deficiency owed by Justin Cook. He did not appear at that hearing. On February 6, 2013, a Default Deficiency Judgment in the amount of $93,769.78 was filed against Justin Cook. No motion for new trial or term-time motion to vacate was filed to challenge either of these post-judgment deficiency orders.

II. The First Motion to Vacate

¶ 8 On June 18, 2013, Cook and Associates filed a motion to vacate the October 30, 2012 deficiency order. Although Justin Cook joined in this motion, only the October 30, 2012 deficiency order against Cook and Associates is sought to be vacated and only that order is attached to the motion to vacate. Consequently, the June 18, 2013 motion to vacate did not seek to vacate the February 6, 2013 deficiency order against Justin Cook.

¶ 9 The June 18, 2013 motion to vacate relied on 12 O.S.2011 § 1031(3)

and argued “irregularity in obtaining a judgment or order.” Cook and Associates contended “irregularity” resulted from the district court's use of the $186,000 sheriff's sale price rather than the $279,000 appraised value when determining the amount of the deficiency it would be liable for after the sale. It asserted that the only evidence from which the district court could have determined the “fair and reasonable market value” of the property as required by 12 O.S.2011 § 686 was the appraised value reflected on the return filed by the appraisers.

¶ 10 On July 26, 2013, the district court entered a “Minute Order” denying the June 18, 2013 motion to vacate. Although it contains the word “Order” in its title, the district court's July 26 filing is not an order. If a filing “bears a title in some form using the word ‘minute’, and otherwise meets the description of a minute, we believe the Legislature intended it not to be appealable....”

Mansell v. City of Lawton , 1994 OK 75, ¶ 3, 877 P.2d 1120

. A “minute” is the internal abstract of court proceedings posted on the case appearance docket and is distinct from a court order. Id. ¶ 4 (Opala, J., concurring in result). Accord

Manning v. State ex rel. Dep't of Pub. Safety , 1994 OK 62, ¶ 5, 876 P.2d 667. “Pursuant to [12 O.S.2011 § 696.2(C) ] a minute entry, even though it might meet the other requirements of § 696.3, is not an appealable order or judgment.” Corbit v. Williams , 1995 OK 53, ¶ 8, 897 P.2d 1129. Accord

Alexander v. Alexander , 2015 OK 52, 357 P.3d 481. Consequently, the July 26, 2013 minute may have documented the district court's disposition of the June 2013 motion to vacate, but it was not the order denying that motion despite the fact that it was titled “Minute Order.” Besecker v. Chilbert , 1994 OK 125, 887 P.2d 1286 (ruling titled “Minute Order” was not prepared in conformance with section 696.3 specifying the requirements for appealable orders).

¶ 11 Nonetheless, on September 11, 2013, Cook and Associates filed a motion to reconsider the district court's July...