Head v. McCracken

• Decision Date: 09 November 2004
• Docket Number: No. 99257,99257
• Parties: THEODORE D. HEAD and LORI A. HEAD, husband and wife, Plaintiffs/Appellants, v. WALTER THOMAS McCRACKEN and REBECCA LUCILLE McCRACKEN, husband and wife, Defendants/Appellees, and JOSEPH LEE McCRACKEN and JO ELLYN McCRACKEN, husband and wife, Defendants.
• Court: Oklahoma Supreme Court

2004 OK 84

102 P.3d 670

THEODORE D. HEAD and LORI A. HEAD, husband and wife, Plaintiffs/Appellants, v. WALTER THOMAS McCRACKEN and REBECCA LUCILLE McCRACKEN, husband and wife, Defendants/Appellees, and JOSEPH LEE McCRACKEN and JO ELLYN McCRACKEN, husband and wife, Defendants.

No. 99257

Supreme Court of Oklahoma

Decided: November 9, 2004

As Corrected: December 2, 2004

Philip W. Redwine, Douglas B. Cubberley and James L. Bintz of Redwine & Cubberley, Norman, Oklahoma for Plaintiffs/Appellants.

Glynis C. Edgar and Marie Johnson of Glynis C. Edgar, P. C., Norman, Oklahoma and J. David Rambo, Norman, Oklahoma for Defendants/Appellees.

LAVENDER, J.:

¶1 The trial court granted summary judgment to defendants/appellees, Walter Thomas and Rebecca Lucille McCracken, husband and wife (hereafter defendants), in regard to plaintiffs'/appellants', Theodore D. and Lori A. Head, husband and wife (hereafter plaintiffs), claim to damages, attorney fees and costs under the Nonjudicial Marketable Title Procedures Act (NMTPA), 12 O. S. 2001, § 1141.1-1141.5, particularly § 1141.5(A) thereof. Plaintiffs filed a motion for new trial as to said claim, which the trial court denied. After their new trial motion was denied, plaintiffs filed a motion for an award of damages, costs and attorney fees, which again placed reliance on § 1141.5(A). The trial court denied the motion. Plaintiffs appealed.¹ The Court of Civil Appeals (COCA), Division I, reversed and remanded for trial. Defendants sought certiorari which we granted. We hold defendants were entitled to summary judgment as a matter of law under the NMTPA. The COCA's opinion is vacated and the trial court Orders denying plaintiffs' motions for new trial and for an award of damages, costs and attorney fees are affirmed.

PART I. STANDARD OF REVIEW.

¶2 Plaintiffs appeal from the trial court Order denying their new trial motion. The appellate review standard regarding a trial judge's denial of a new trial motion is abuse of discretion. Evers v. FSF Overlake Associates, 2003 OK 53, ¶ 6, 77 P.3d 581, 584.² As in Evers, however, the correctness of the trial court's new trial denial rests on the propriety of the earlier grant of summary judgment. Of course, the correctness of the trial court's denial of plaintiffs' motion for an award of damages, costs and attorney fees also rests on the propriety of the summary judgment grant. Thus, we must examine the correctness of the trial court's summary judgment grant to defendants on plaintiffs' § 1141.5(A) claim to damages, attorney fees and costs under the standard of review applicable to summary judgment grants. See Evers, 2003 OK 53, ¶ 6,

77 P.3d at 584.

¶3 An appellate court tests a trial court's summary judgment grant by a de novo review standard. In re Estate of MacFarline, 2000 OK 87, ¶ 3, 14 P.3d 551, 554. Although factual matters are considered in ruling on a summary judgment motion, the ultimate decision turns on the purely legal determination of whether one party is entitled to judgment as a matter of law because there are no material disputed factual questions. Carmichael v. Beller, 1996 OK 48, 914 P.2d 1051, 1053. An appellate court, like a trial court, scrutinizes the pleadings and evidentiary materials submitted by the parties to determine if there is a genuine issue of material fact, and all inferences and conclusions to be drawn from the evidentiary materials must be viewed in the light most favorable to the non-moving party. Id. In such a de novo review the appellate court engages in a plenary, independent and non-deferential re-examination of the trial court's ruling. Manley v. Brown, 1999 OK 79, ¶ 22 n. 30, 989 P.2d 448, 455 n. 30.

¶4 In Prudential Ins. Co. of America v. Glass, 1998 OK 52, 959 P.2d 586, additional guidance concerning an appellate court's review of a summary judgment ruling was delineated as follows:

[A] summary judgment ruling must be made on the record actually presented by the litigants, not on a record potentially possible. If the summary judgment submissions disclose either controverted material facts, or, reasonable minds might reach different conclusions even if the material facts are undisputed, summary judgment should be denied. It must be remembered, neither this Court [n]or a trial court weighs the evidence on a motion for summary judgment and it is not the purpose of such procedure to substitute a trial by affidavit for a trial according to law. Weighing of evidence is a function for the jury and, in a non-jury case, for the trial judge after an appropriate trial of the issues. Finally, only if the movant for summary adjudication satisfies the initial burden to show entitlement to summary judgment is it incumbent on the non-movant to demonstrate by his/her own submissions the existence of a substantial dispute as to some material fact.

1998 OK 52, at ¶ 3, 959 P.2d at 588-589 (citations omitted). In re Estate of MacFarline further succinctly provides, "[f]or a party to be entitled to summary judgment in his/her favor, the record must show that party entitled to judgment as a matter of law." 2000 OK 87, ¶ 4, 14 P.3d at 555 (emphasis in original).

¶5 We also have before us a question concerning statutory interpretation because the meaning of a legislative enactment, § 1141.5(A) of the NMTPA, is central to determining defendants' entitlement to summary judgment. As with summary judgment review, "[a] legal question involving statutory interpretation is subject to de novo review . . ., i.e., a non-deferential, plenary and independent review of the trial court's legal ruling." Fulsom v. Fulsom, 2003 OK 96, ¶ 2, 81 P.3d 652, 654, citing Samman v. Multiple Injury Trust Fund, 2001 OK 71, ¶ 8 and n. 5, 33 P.3d 302, 305 and n. 5. The above standards guide our consideration of this cause.

PART II. FACTUAL AND PROCEDURAL BACKGROUND.

¶6 In July 2001 plaintiffs sued defendants to, in effect, obtain a judicial order establishing and defining an access road easement over land owned by defendants, the road being necessary to provide a passageway to a five acre landlocked parcel of land then owned by plaintiffs.³ In essence, plaintiffs' initial suit was one to quiet title to an access road easement. Both parcels of land are located in Cleveland County. In 1988 defendants, out of a larger parcel owned by them, conveyed the landlocked five acre tract to their son (then single) by warranty deed, granting fee title to the tract "with an access road to Etowah road."⁴ At the time of the 1988 conveyance no access road actually existed and the 1988 warranty deed did not specifically detail the width, length or location where the access road was to be built. The record shows that during his ownership of the property, defendants' son built or had built an access road traversing defendants' tract and that this road existed in 1998 when plaintiffs purchased the five acre tract from the son (then married) and his wife. The 1998 warranty deed from the son and his wife to plaintiffs did not describe or mention an access road easement.⁵

¶7 Plaintiffs' petition, and an amended petition filed in the trial court, also alleged that through their attorney, by letter dated June 9, 2001, that they, plaintiffs, made written statutory demand upon defendants to execute a document preserving the right of access to the landlocked tract, but that defendants ignored the demand. Plaintiffs asserted that because defendants ignored the demand they, plaintiffs, were entitled to recover costs of the action, including reasonable attorney fees for investigation, preparation and maintenance of the action. Although neither the petition nor amended petition cites to the NMTPA, no one disputes here that the statutory anchor behind plaintiffs' written demand is the NMTPA.

¶8 The letter from plaintiffs' attorney to defendants, in effect, sought to have defendants execute a fifty (50) foot wide access road easement across defendants' property. A legal instrument entitled "ROAD EASEMENT" specifically describing the fifty (50) foot road easement accompanied the letter from plaintiffs' attorney, and the letter and the requested road easement instrument are attached to plaintiffs' trial court petition. The description of the sought-after easement contained in the instrument follows:

The East 25.00 feet of the Northwest Quarter of the Northeast Quarter of the Northwest Quarter (NW/4 NE/4 NW/4) AND the East 25.00 feet of the North Half of the Southwest Quarter of the Northeast Quarter of the Northwest Quarter (N/2 SW/4 NE/4 NW/4) AND the West 25.00 feet of the Northeast Quarter of the Northeast Quarter of the Northwest Quarter [(] NE/4 NE/4 NW/4) AND the West 25.00 feet of the North Half of the Southeast Quarter of the Northeast Quarter of the Northwest Quarter (N/2 SE/4 NE/4 NW/4) ALL in Section 29, T. 8 N., R. 1 E., I.M. Cleveland County, Oklahoma

(bolding in original).

¶9 In an Order filed in the trial court in November 2001, the trial judge determined that an ingress/egress road easement existed as a matter of law. The Order defined the road as being twenty (20) feet in width, ten (10) feet on either side of the midline of the existing road, i.e., the road the son built or had built. The Order also described the road easement more particularly by virtue of a survey that had been conducted, i.e., the Order specified a legal description of the existing road's location. The description as contained in the trial court Order is:

A 20.00 feet Road Easement being 10' on either side of the centerline more particularly described as follows:

Commencing at the Northeast Corner of the Northwest Quarter (NW/4) of Section 29, Township 8 North, Range 1 East, I.M., Cleveland County, Oklahoma, thence West a distance of 663.19 feet along the North line of said Section 29 to the Point of Beginning, thence S0038'11"E a distance of 541.59 feet; thence S1909'20"W a distance of 124.92 feet to termination.

¶10 Subsequent to the November 2001 Order, plaintiffs filed a ...