Davis v. Leitner

• Citation: 1989 OK 146,782 P.2d 924
• Decision Date: 07 November 1989
• Docket Number: No. 69196,69196
• Parties: Robert E. DAVIS and Harry C. Evans, d/b/a Evans and Davis, Attorneys at Law, Appellants, v. Garol Ray LEITNER and Dorothy Leitner James, Appellees.
• Court: Supreme Court of Oklahoma

Page 924

782 P.2d 924

1989 OK 146

Robert E. DAVIS and Harry C. Evans, d/b/a Evans and Davis Attorneys at Law, Appellants, v. Garol Ray LEITNER and Dorothy Leitner James, Appellees.

No. 69196.

Supreme Court of Oklahoma.

Nov. 7, 1989.

Certiorari to the Court of Appeals, Oklahoma City Division.

Trial court granted defendant's motion for partial summary judgment finding no competent evidence to show defendant had knowledge of a prior mortgage before recording her deed and mortgage in the same property.

CERTIORARI GRANTED; OPINION OF THE COURT OF APPEALS VACATED; TRIAL COURT REVERSED; CAUSE REMANDED.

Mark Lea (Beau) Cantrell, El Reno, for appellants.

Baker, Logsdon & Schulte by Harold Logsdon, Kingfisher, for appellees.

DOOLIN, Justice.

Appellees' Petition for Rehearing of the Court's opinion in this cause, published at 60 OBJ 383, Feb. 18, 1989, is hereby granted. Previous opinion is withdrawn and the following opinion is adopted in its place. Certiorari has been previously granted.

On May 31, 1981, Garol Ray Leitner (Leitner) executed a promissory note in the amount of $13,000, together with a mortgage on a certain tract of land, in favor of attorneys Robert E. Davis and Harry C. Evans (attorneys), to secure payment for legal services rendered. At Leitner's request attorneys did not record the mortgage.

Thereafter, Leitner executed a mineral deed, $50,000 promissory note and mortgage to his mother, Dorothy James (Dorothy), which mortgage was recorded on July 2, 1981. Leitner then conveyed all his interest in the property to Dorothy by a quit-claim deed which was recorded on August 27, 1982. Upon discovery of these instruments in favor of Dorothy, attorneys filed their mortgage of record on December 2, 1982.

Attorneys then brought this action to recover on the note from Leitner and to foreclose their mortgage lien on the subject property. They also named Dorothy as a defendant and sought to quiet title against her and to recover money damages for slander of title.

Key to attorneys' action against Dorothy was their allegation that at the time Leitner executed his quit-claim deed to her she had actual knowledge of the unrecorded mortgage in attorneys' favor. With such knowledge, they contend, Dorothy's title is subject to their lien. ¹

Dorothy moved for partial summary judgment, asserting that the recorded instruments of title should be given priority according to 16 O.S.1981, § 15, because she in fact had no knowledge of attorneys' unrecorded mortgage, and it could not, therefore, be binding upon her. Attorneys responded to Dorothy's motion by filing their response in which they alleged there was a witness, Mr. Don James (Dorothy's ex-husband), who would testify that Dorothy had revealed to him that she did have prior knowledge of Leitner's mortgage to attorneys. To demonstrate to the court the nature and content of Mr. James' potential testimony, attorneys attached to their response a copy of a letter written by him to attorney Evans in which he, James, alleged facts which if substantiated would prove Dorothy's knowledge of the existence of attorneys' prior mortgage.

The trial court made a finding that there was no competent evidence before the court to indicate that Dorothy had knowledge of attorneys' mortgage prior to its being recorded, granted summary judgment which quieted title in Dorothy and declared her title free and clear of any claims by attorneys. Attorneys appealed this judgment and the Court of Appeals summarily affirmed.

We have granted certiorari to consider the issue of whether the trial court erred in granting summary judgment. For the reasons set out hereinbelow we find the trial court did err and we therefore vacate the opinion of the Court of Appeals, reverse the judgment of the trial court and remand the cause for further proceedings.

Summary judgment is proper only when the pleadings, affidavits, depositions, admissions or other evidentiary materials establish that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ² In reviewing the grant or denial of summary judgment all inferences and conclusions to be drawn from the evidentiary materials must be viewed in a light most favorable to the party opposing the motion. ³

District Court Rule 13(B), 12 O.S.Supp.1985 Ch. 2, App., provides in pertinent part:

"If the adverse party or parties wish to oppose the granting of the motion, they shall serve on the moving party and file with the court clerk within fifteen days after service of the motion a concise written statement of the material facts as to which he or they contend a genuine issue exists and the reasons for denying the motion. The adverse party shall attach to the statement affidavits and other materials containing facts that would be admissible in evidence, but the adverse part...