Federal Deposit Ins. Corp. v. Tidwell

• Decision Date: 19 November 1991
• Docket Number: No. 73406,73406
• Citation: 1991 OK 119,820 P.2d 1338
• Parties: FEDERAL DEPOSIT INSURANCE CORPORATION as Manager of the FSLIC Resolution Fund as Receiver for Homestead Savings and Loan Association, Woodward, Oklahoma, Appellee, v. Frank TIDWELL; Mary E. Tidwell, Appellants.
• Court: Oklahoma Supreme Court

Page 1338

820 P.2d 1338

1991 OK 119

FEDERAL DEPOSIT INSURANCE CORPORATION as Manager of the FSLIC Resolution Fund as Receiver for Homestead Savings and Loan Association, Woodward Oklahoma, Appellee, v. Frank TIDWELL; Mary E. Tidwell, Appellants.

No. 73406.

Supreme Court of Oklahoma.

Nov. 19, 1991.

Appeal from the District Court Woodward County, Oklahoma; Ray Dean Linder, District Judge.

The Federal Savings and Loan Insurance Corporation brought a foreclosure action in the district court and filed a motion for summary judgment. The trial court granted the motion for summary judgment in rem, ordered the property sold, awarded costs and attorney fees, and reserved the issue of a personal judgment and any defenses of the petitioners until assessment of a deficiency after the sale of the property. Two defendants appealed. The FSLIC filed a motion to dismiss the appeal for the absence of a final judgment adjudicating the petitioners' liability.

APPEAL DISMISSED BUT WRIT OF PROHIBITION ISSUED WITH INSTRUCTIONS.

Michael F. Stake, Woodward, for appellants, Frank Tidwell and Mary E. Tidwell.

Mark E. Pruitt, Phillips, McFall, McCaffrey, McVay, Sheets & Lovelace, P.C., Oklahoma City, for appellee, FSLIC.

Richard H. Ruth, Oklahoma City, for appellee, FDIC.

SUMMERS, Justice.

I. FACTS AND POSTURE

Federal Savings and Loan Insurance Corporation as Receiver for Homestead Savings and Loan Association of Woodward sued to foreclose its mortgage on properties owned by the Tidwells and other defendants. The Tidwells pled estoppel, waiver, and laches as affirmative defenses. FSLIC moved for summary judgment. The trial court granted the motion, stating that it granted judgment "in rem ", and determined the amount due on each note, together with interest and attorney fees. In its order the court ordered the property sold and further said "all issues of in personam liability (to include claims, counterclaims, and defenses) if any, of all the defendants are hereby specifically reserved for hearing upon hearing of Plaintiffs' Motion for Deficiency Judgment." The Tidwells appealed.

FSLIC moved to dismiss the appeal as premature, arguing that no appealable judgment had yet been rendered. The Tidwells responded that if the appeal were dismissed the trial court would proceed with judicial sale and that their property would be sold to someone else before they were ever heard on their affirmative defenses to the foreclosure suit. We conclude that the order appealed is not a final order for the purpose of appeal and that the appeal must be dismissed. However, because the interlocutory order on "summary judgment" authorizes execution on the property of the defendants prior to adjudicating their defenses, we issue a writ of prohibition to prohibit execution unless and until a proper order is rendered. However, before explaining our decision we must substitute the proper party as appellee/respondent.

II. SUBSTITUTION OF FEDERAL DEPOSIT INSURANCE CORPORATION

FOR FEDERAL SAVINGS AND LOAN INSURANCE CORPORATION.

The Plaintiff and original appellee herein is the Federal Savings and Loan Insurance Corporation in its capacity as Receiver for Homestead Savings and Loan Association, Woodward, Oklahoma. The FDIC has requested that it be substituted for the FSLIC on appeal. With certain exceptions, all assets and liabilities of the Federal Savings and Loan Insurance Corporation were transferred to the FSLIC Resolution Fund on August 8, 1989. 12 U.S.C. § 1821a(a)(2)(A). The FSLIC Resolution Fund is managed by the Federal Deposit Insurance Corporation. Id. at § 1821a(a)(1). The Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Pub.L. No. 101-73, Title IV § 401(f)(2) 103 Stat. 183, 356, provides in part: "[n]o action or other proceeding commenced by or against the Federal Savings and Loan Insurance Corporation, ... shall abate by reason of the enactment of this Act, except that the appropriate successor to the interests of such Corporation shall be substituted for the Corporation or the Federal home loan bank as a party to any such action or proceeding." With no objection from any of the parties we hereby substitute as appellee the Federal Deposit Insurance Corporation as Manager of the FSLIC Resolution Fund as Receiver for Homestead Savings and Loan Association, Woodward, Oklahoma.

III. APPELLATE REVIEW, THE FORECLOSURE DECREE, AND DISMISSING AND RECASTING THE APPEAL

We need not theorize about in rem and in personam judgments to resolve the problem before us at this stage of the proceeding. The record clearly shows that the FSLIC sought a personal judgment against the Tidwells in its petition for foreclosure of its mortgage. Such requested relief is proper under the jurisprudence of this State. Mehojah v. Moore, 744 P.2d 222 (Okla.App.1987), (approved for publication There can be only one "judgment" or one final judicial determination upon a single cause of action. See Stubblefield v. General Motors Acceptance Corp., 619 P.2d 620, 624 (Okla.1980) and Oklahomans For Life, Inc. v. State Fair of Okla., 634 P.2d 704, 706 (Okla.1981). In a strict sense, this one judgment in a foreclosure proceeding is the order determining the amount due and ordering the sale to satisfy the mortgage lien. Jones v. England, 782 P.2d 119, 121 (Okla.1989); Mehojah v. Moore, 744 P.2d at 225. See also Willis v. Nowata Land and Cattle Co., Inc., 789 P.2d 1282, 1285 n. 11 (Okla.1989), (deficiency judgment ² described as a "post-judgment" order). This view is nothing new to the jurisprudence of this State. See Funk v. Payne, 183 Okl. 332, 82 P.2d 976 (1938), wherein we explained that in order to appeal errors in a judgment of foreclosure it was necessary to appeal from that judgment, and First National Bank v. Colonial Trust Co., 66 Okl. 106, 167 P. 985, 987, 988 (1917), wherein we observed that the order of foreclosure was final as it was not appealed. In Reliable Life Ins. Co. of St. Louis v. Cook, 601 P.2d 455, 457 (Okla.1979), we observed that the appellant did not appeal the foreclosure judgment prior to the motion for the deficiency. In Burton v. Mee, 152 Okl. 220, 4 P.2d 33, 36 (1931), we said that a judgment of foreclosure could not be attacked in the context of a motion to confirm a sale but that the parties' remaining remedy in attacking the judgment at that point in the proceedings was by vacating the judgment. In Wyant v. Davidson & Case Lumber Co., 173 Okl. 467, 49 P.2d 151, 154 (1935) we did the same.

by Supreme Court). ¹ The record before us contains no request by any party for an in rem judgment.

The trial court order before us states the amounts due. The trial court, however, did not adjudicate the amounts due, and that is because it failed to adjudicate the sufficiency of the Tidwells' defense to the motion for summary judgment. In other words, the plaintiff's cause of action was not fully adjudicated.

A judgment that adjudicates a plaintiff's cause of action must also adjudicate all defenses and interrelated counterclaims to that particular cause of action that were properly raised by the defendant. For example, in Eason Oil Co. v. Howard Engineering, 755 P.2d 669 (Okla.1988), we said that "[w]hen a counterclaim is interrelated with the plaintiff's claim, no judgment is rendered in the case until all issues raised by both claims have been resolved." Id. 755 P.2d at 670 n. 1. See also Retherford v. Halliburton Co., 572 P.2d 966, 968 (Okla.1977), wherein we explained that the concept of a cause of action "exists to satisfy the needs of plaintiffs for a means of redress, of defendants for a conceptual context within which to defend an accusation, and of the courts for a framework within which to administer justice." (Emphasis ours).

The order before us specifically declined to adjudicate the legal sufficiency of the Tidwells' defense to the foreclosure of the mortgage. Thus, the order does not adjudicate the cause of action and is not a judgment. See Teel v. Public Service Co. of Oklahoma, 767 P.2d 391, 395 (Okla.1985), in which we explained that a summary adjudication of less than all of a cause of action is not appealable as a judgment. However, the order does include two characteristics of a judgment since it authorizes execution ³ and awards attorney's We have held that an order of sale after judgment in a foreclosure proceeding is an "execution" within section 732 of title 12. See Bartlett Mortgage Co. v. Morrison, 183 Okl. 214, 81 P.2d 318 (1938). We have also explained that an execution is premature when issued on a judgment that shows on its face that it is not final. Thornburgh v. Ben Hur Coal Co., 203 Okl. 553, 224 P.2d 249 (1950). An erroneous execution arising from a foreclosure proceeding, by itself, is insufficient to warrant extraordinary relief by prohibition. See Schuman v. Sternberg, 179 Okl. 118, 65 P.2d 413 (1937). Here, the authorized execution and sale of the Tidwells' property prior to an adjudication of their alleged defense is not only premature but a fundamental flaw in the order. ⁵

fees. ⁴

Due process mandates that a party be given an opportunity to participate in the proceedings and an opportunity to controvert the claims of the opposing party. Cate v. Archon Oil Co., Inc., 695 P.2d 1352, 1356 (Okla.1985); Jackson v. Independent School Dist. No. 16, 648 P.2d 26, 31 (Okla.1982). As the present case now stands below, the defendants' property is subject to forced sale prior to any judicial review of the legal sufficiency of their alleged defenses to the seizure and sale of the property. Such a result contravenes due process. Cate v. Archon Oil Co., Inc., supra, and Jackson v. Independent School Dist. No. 16, supra.

This court on occasion, and when justice so requires, will treat a petition in error as an original action for a writ, or vice versa. In the Matter of B.C., 749 P.2d 542, 544 (Okla.1988); Prock v. District Court of Pittsburg County, 630 P.2d 772, 775 (Okla.1981). This is such a case. We...