Evers v. FSF Overlake Associates, No. 97470.

• Court: Supreme Court of Oklahoma
• Writing for the Court: BOUDREAU, J.
• Citation: 2003 OK 53,77 P.3d 581
• Parties: Heather V. EVERS and Derek Evers, Plaintiffs/Appellants, v. FSF OVERLAKE ASSOCIATES, an Oklahoma Limited Partnership; D.G.M. Overlake, Inc., a suspended Delaware Corporation; Trust Property Management, Inc., an unincorporated or unregistered association, Defendants/Appellees.
• Decision Date: 20 May 2003
• Docket Number: No. 97470.

77 P.3d 581
2003 OK 53

Heather V. EVERS and Derek Evers, Plaintiffs/Appellants,
v.
FSF OVERLAKE ASSOCIATES, an Oklahoma Limited Partnership; D.G.M. Overlake, Inc., a suspended Delaware Corporation; Trust Property Management, Inc., an unincorporated or unregistered association, Defendants/Appellees

No. 97470.

Supreme Court of Oklahoma.

May 20, 2003.

77 P.3d 583

John D. Mashburn, Oklahoma City, OK, for Plaintiffs/Appellants

Gary S. Chilton and Heidi Jo Long, Oklahoma City, OK, for Defendants/Appellees.

BOUDREAU, J.

¶ 1 Heather and Derek Evers filed suit against the owners and managers of an apartment complex in Bethany, Oklahoma, as well as other unnamed defendants, who resided in the adjoining apartment during the operation of a methamphetamine drug lab. The Evers' petition alleges that in March 2000, they along with other tenants began to notice strong smells in and around the apartment building. Shortly thereafter, the Evers and other tenants began to complain about the smells to the management and owners of the apartment complex.

¶ 2 After the advent of fumes, Heather Evers claims she became ill with headaches, dizziness and a variety of debilitating symptoms, which eventually made it impossible for her to go to work and resulted in her spending even more time in the apartment. In May 2000, approximately two months after the initial complaints began, Heather says she once again complained to the apartment staff. In response, an apartment security officer was sent to investigate the origin of the smell. The security company officer believed the smell to be the result of illegal drug activity. The police raided the apartment adjoining the Evers' apartment and discovered a methamphetamine drug lab in the bathroom, which shared a wall and ventilation system with the Evers' apartment. After the police raid, the Evers terminated their lease.

¶ 3 In their petition, the Evers assert that the materials used to manufacture the methamphetamine are highly toxic and carcinogenic. The Evers allege the owners and management personnel of the complex knew or should have known of the dangerous condition posed by the illegal manufacture of drugs in the adjacent apartment and negligently failed to warn or protect the tenants of the danger. The Evers claim these failures resulted in Heather becoming very ill, with residual reproductive complications and increased risk of future illness, such as cancer.

¶ 4 Defendants, FSF Overlake Associates, D.G.M. Overlake, Inc. and Trust Property Management, moved for summary judgment. In their summary judgment motion, Defendants

77 P.3d 584

argued they owed no duty to the Evers to maintain an apartment community free from criminal activity and even if a duty was owed, the criminal acts of third parties caused the Evers harm and not any negligence on the part of the property managers or owners

¶ 5 The trial court granted Defendants' motion for summary judgment. Plaintiffs moved for a new trial. This motion was denied and Plaintiffs appealed. The Court of Civil Appeals, determined the Evers failed to provide sufficient evidence of injury and failed to adequately link any alleged injuries to exposure to methamphetamine or its components. As a result, the Court of Civil Appeals determined the trial court did not err in granting the summary judgment. The Evers sought certiorari to this Court, asserting that the Court of Civil Appeals affirmed Defendants' summary judgment based upon an issue not tried or raised at the court below, namely the extent and cause of the Evers' physical injuries.

I. Standard of Review

¶ 6 We note this case comes on appeal from Plaintiffs' motion for a new trial. The standard of review on appeal in examination of the trial court's denial of a new trial motion is abuse of discretion. Jones, Givens, Gotcher & Bogan v. Berger, 2002 OK 31, 46 P.3d 698, 701; Austin v. Cockings, 1994 OK 29, 871 P.2d 33, 34. However, in this case the propriety of the trial court's denial of the new trial motion rests on the correctness of the trial court's grant of summary judgment. Therefore, we must examine by de novo review the trial court's decision on summary judgment in order to determine whether the trial court abused its discretion in denying the new trial motion. See Manley v. Brown, 1999 OK 79, 989 P.2d 448, 455.

II. Content of Defendants' Summary Judgment Motion

¶ 7 FSF Overlake Associates, D.G.M. Overlake, Inc. and Trust Property Management, Inc., the Defendants, owners and managers of the apartment complex, filed their motion for summary judgment arguing that 1) they owed no duty to the Evers to maintain a crime-free apartment environment, 2) even if they owed a duty, the Evers' injuries were caused by the intentional crimes of third parties, which was a supervening cause of any alleged injuries, and 3) they could not be liable for misrepresentation, because Plaintiffs did not rely on any allegedly false statements by any of the Defendants.

¶ 8 In support of this motion, Defendants set out the following "uncontroverted facts":

1. In May 2000, the Overlake Apartments, located at 7902 N.W. 21st Street in Bethany, Oklahoma, were owned by FSF Overlake Associates;

2. In May 2000, the Overlake Apartments were managed by Trust Property Management, Inc.;

3. The Plaintiffs resided in Unit E-20 at the Overlake Apartments from July 1999 through May 22, 2000;

4. Unit E-19, the apartment adjacent to Unit E-20, was raided by the Bethany Police on May 18, 2000, and an illegal methamphetamine laboratory was discovered;

5. The parties arrested in connection with the methamphetamine laboratory did not have prior criminal records;

6. Following the police raid, the plaintiffs immediately gave notice of termination of lease and moved from the Overlake Apartments;

7. After the police raid, the plaintiffs resided in a different apartment unit until they were able to physically move from the Overlake Apartment community;

8. Beginning December 1, 1999, at the latest, Overlake requested all residents to sign a "Lease Addendum for Drug-Free Housing".

III. Defendants' Motion Does Not Entitle Them to Judgment Through Summary Process

¶ 9 A motion for summary judgment is a request for an adjudication on the merits of the case. It is proper only when the pleadings, affidavits, depositions, admissions or other evidentiary materials establish that there is no genuine issue as to any

77 P.3d 585

material fact and the party moving for summary judgment is entitled to judgment as a matter of law. Markwell v. Whinery's Real Estate, Inc., 1994 OK 24, 869 P.2d 840, 845. The moving party has the burden to show there is no substantial controversy as to any material fact. Bowers v. Wimberly, 1997 OK 24, 933 P.2d 312, 315. In demonstrating that no material fact exists, the moving party must present a concise written statement of the material facts as to which the movant contends no genuine issue exists. Rule 13, Rules for the District Courts of Oklahoma, 12 O.S.2001, Ch. 2, app. 1; Hadnot v. Shaw, 1992 OK 21, 826 P.2d 978, 984. The movant must attach to the statement copies of the acceptable evidentiary substitutes relied upon to support the motion. Finally, the movant must offer a statement of argument and authority demonstrating why the...