Creekmore v. Redman Industries, Inc.

• Decision Date: 24 May 1983
• Docket Number: 57879,Nos. 57596,No. 1,s. 57596,1
• Citation: 671 P.2d 73
• Parties: 1983 OK CIV APP 32 Olen E. CREEKMORE, Alta Sue Creekmore, F. Jane Gillespy, and Cheryl Lieberman, Appellants/Cross-Appellees, v. REDMAN INDUSTRIES, INC., a Delaware corporation, and Redman Homes, Inc., a Delaware corporation, Appellees/Cross-Appellants
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 73

671 P.2d 73

1983 OK CIV APP 32

Olen E. CREEKMORE, Alta Sue Creekmore, F. Jane Gillespy, and Cheryl Lieberman, Appellants/Cross-Appellees, v. REDMAN INDUSTRIES, INC., a Delaware corporation, and Redman Homes, Inc., a Delaware corporation Appellees/Cross-Appellants.

Nos. 57596, 57879.

Court of Appeals of Oklahoma Division No. 1.

May 24, 1983.

Rehearing Denied July 19, 1983.

Released for Publication by Order of

Court of Appeals Oct. 21, 1983.

Appeal from the District Court of Tulsa County; Patricia Hoebel, judge.

AFFIRMED.

Jones, Givens, Gotcher, Doyle & Bogan, Inc. by Alfred K. Morlan, Graydon Dean Luthey, Jr., Tulsa, for appellants/cross-appellees.

Hall, Estill, Hardwick, Gable, Collinsworth & Nelson, P.C. by Frank M. Hagedorn, Tulsa, for appellees/cross-appellants.

ROBINSON, Judge:

In 1964, Appellants entered into a ten-year lease agreement containing automatic renewals for a period covering an additional fifty years with Appellees' assignor for a tract of land and industrial buildings in Tulsa County, Oklahoma. The lease agreement contains, among other things, a covenant against waste. No forfeiture provision for waste is contained in the lease, however, termination of the lease is specifically provided for in certain specified instances such as default in the payment of rent. The lease also provides for additions, alterations and manner of increased rental payments therefor.

Appellants brought this action seeking termination of the lease agreement for acts of waste, damages for commission of waste and for punitive damages. A partial summary judgment was granted Appellees by the trial court as to that portion of the Appellants' petition seeking termination of the lease. The court stated that neither Oklahoma statutes, nor the lease agreement provide for termination of a lease for waste and that Appellants' remedy for waste was a claim for damages. Jury trial was held on this issue and the jury returned a verdict for $20,000.00 actual damages and no punitive damages.

Appellants in this action also sought immediate possession of Tract B, a parcel of land adjacent to the north of Appellants' land covered by the 1964 lease. Tract B was purchased by Appellants at the request of Appellees in 1966. Thereafter, Appellees extended the fence to include Tract B and commenced paying increased monthly rental. Appellants contend that the lease of Tract B was a month-to-month tenancy, while Appellees contend that Tract B is covered by the original lease agreement as an "addition". The trial court ruled that the Tract B issue would not be submitted to the jury and reserved ruling on the same. Some two months after the jury trial, the trial court ruled that Appellants were entitled to immediate possession of Tract B and awarded judgment to Appellants for attorney's fees and denied Appellees' motion for attorney's fees.

Appellants, in their appeal, present two propositions of error: (1) whether the trial court properly granted Appellees' motion for partial summary judgment denying forfeiture of the lease for commitment of waste; and (2) whether the trial court correctly refused to instruct the jury that Appellants were entitled to treble damages under 21 O.S.1981 § 1760.

Appellees, in their cross-appeal, present three propositions of error: (1) whether the court erred in allowing Appellants to maintain an action for damages for waste prior to the expiration of the lease agreement; (2) whether the court erred in arbitrarily setting December 1, 1978, as the date on which to measure damages and further erred in allowing evidence of photographs taken prior to and during the time Appellees were making repairs; and (3) whether the court erred in its instructions to the jury, numbered 6, 7, 8, 9, 11, 13 and 14.

For their separate appeal of the trial court's subsequent order (which has been consolidated with the Appellants' original appeal), Appellees assert two additional propositions of error: (1) whether the court erred in finding that Tract B was not an addition under the terms of the lease agreement and in awarding possession thereof to Appellants; and (2) whether the court erred in awarding judgment to Appellants for attorney's fees and denying Appellees' motion for attorney's fees when both parties were partially successful.

I.

Appellants contend that the Statute of Gloucester, ¹ enacted in 1278, provides for a forfeiture in the event of waste by a tenant for years and that Oklahoma having adopted the common law ² likewise adopted this statute. Appellees, on the other hand, contend that Oklahoma does not recognize English statutes as part of the common law but construes the common law only to include the unwritten and decisional court law of England.

We can find only four cases where this issue has been addressed by the Supreme Court. Two of these cases construed the law prior to statehood. ³ These two early decisions stated that the territory of Oklahoma was governed by the rule of common law as recognized and promulgated by the American courts; such law to include not only the unwritten English law but such English statutes mandatory of the common law, which were in general application and suited to our conditions, and which were enacted prior to the settlement of the colonies. The two later Oklahoma decisions ⁴ do not address the issue of whether Oklahoma recognizes English statutes as part of the common law. However, in most states English statutes are a part of the common law when such English statutes were adopted prior to the settlement of our colonies and are of a general nature and suitable to conditions in the states. ⁵ Only three states have not adopted this view. ⁶ We agree with the majority view and therefore shall follow the two pre-statehood Oklahoma decisions that English statutes adopted prior to the settlement of our colonies that were in general application and suited to our conditions as recognized and promulgated by the American courts are part of the common law of Oklahoma.

We must now determine whether the Statute of Gloucester was an English statute that was recognized and promulgated by the American courts as appropriate to the different conditions and situations of an early America? The Statute of Glouscester changed the common law punishment for waste to forfeiture of the thing wasted and treble damages. ⁷ The Statute of Glouscester was ignored for more than 300 years in England after its enactment, and was repealed in 1879. According to Restatement, Second, Property § 198, this early English statute has not become a part of the law of an American state in the absence of an express reenactment thereof. "The automatic reception of early English statutes is restricted to those suitable to the different conditions and situations of the New World. The English treatment of this statute as obsolescent, together with the severity of the provisions for treble damages and forfeiture, justify the position stated in this section." Id. It is generally held that the Statute of Glouscester did not become a part of our common law as the strict English law of waste has never been appropriate to a new country like ours. ⁸ We hold pursuant to the clear weight of authority that Oklahoma has not adopted the Statute of Gloucester as a part of the common law. Absent a permissible statute, forfeiture as a remedy for waste is not available. Oklahoma has no such statute. We conclude that the trial court did not err in granting Appellees' motion for partial summary judgment denying Appellants' attempt to terminate the lease for commitment of waste.

II.

Appellants assert that they are entitled to treble damages for intentional destruction of the leasehold premises provided by 21 O.S.1981 § 1760. ⁹ The trial court refused to instruct or allow treble damages under § 1760. Section 1760 is a criminal statute for malicious mischief. Because of the clear language "in addition to the punishment prescribed therefor", before Appellant may file a civil action for treble damages, he must establish the elements of malicious mischief as prescribed by decisions of the Oklahoma Court of Criminal Appeals. Malice toward the owner of the property defaced or destroyed is the gravamen of the offense of malicious mischief and must be proven in a criminal action beyond a reasonable doubt. ¹⁰ This case is a civil action for damages for waste and not a criminal matter. Nowhere in the record does it reflect that Appellees have been convicted of the misdemeanor offense of malicious mischief. We hold that 21 O.S.1981 § 1760 pertains to malicious acts of a criminal nature and is not applicable in the instant case.

III.

Appellees assert that the trial court erred in allowing Appellants to maintain an action for damages for waste prior to the expiration of the lease agreement. Article XI.A., of the lease agreement, entitled Repair and Maintenance, ¹¹ clearly contains two separate covenants; a covenant to keep in repair and a covenant to restore the premises in repair at the expiration of the lease agreement. Each of these independent covenants is capable of breach and a landlord may maintain an action for want of repair before the end of the term. A breach of the covenant to return the premises in repair, however, cannot be made until the time at which the premises are restored to the landlord, and for that breach, the tenant would be liable at the end of the term. ¹² We therefore hold that Appellants action for damages for waste can be maintained prior to the expiration of the lease agreement.

IV.

Appellees assert that the court erred in setting December 1, 1978, as the date on which to measure damages and further erred in admitting photographs taken prior to and during the time Appellees were making repairs. When the injury to real property is "remediable, removeable, or abateable," damages are called "temporary" or "continuing" damages, and the recovery allowed will be those damages which have accrued to the date of...