Hurlbut v. Morrow, 96,599.

• Decision Date: 09 August 2002
• Docket Number: No. 96,599.,96,599.
• Citation: 55 P.3d 455,2002 OK CIV APP 83
• Parties: Beatrice A. HURLBUT, Sole Trustee of the Clyde H. Hurlbut and Beatrice A. Hurlbut Living Trust, Plaintiff/Appellee, and Ronald Lee Hurlbut, Burma Fay Andrews, and Clyde Jundur Hurlbut, Plaintiffs, v. Robert C. MORROW, Defendant/Appellant.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

55 P.3d 455

2002 OK CIV APP 83

Beatrice A. HURLBUT, Sole Trustee of the Clyde H. Hurlbut and Beatrice A. Hurlbut Living Trust, Plaintiff/Appellee, and Ronald Lee Hurlbut, Burma Fay Andrews, and Clyde Jundur Hurlbut, Plaintiffs, v. Robert C. MORROW, Defendant/Appellant.

No. 96,599.

Court of Civil Appeals of Oklahoma, Division No. 3.

August 9, 2002.

Larry L. Oliver, Tulsa, OK, For Defendant/Appellant.

Kenneth M. Smith, Robert P. Skeith, Riggs, Abney, Neal, Turpen, Orbison & Lewis, Tulsa, OK, for Plaintiff/Appellee.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3. Opinion by CAROL M. HANSEN, Presiding Judge.

¶ 1 In this action contesting the terms and legal efficacy of a "Hunting Lease", Appellant, Robert Morrow (Morrow), appeals from [1] the trial court's judgment ordering the agreement cancelled, and [2] the trial court's denial of Morrow's post-trial Request for Stay of Enforcement of Judgment. We find no error in either determination and affirm.

BACKGROUND FACTS

¶ 2 On July 16, 1990, Morrow, as lessee, entered into an agreement entitled, "Hunting Lease", with Clyde and Beatrice Hurlbut (Hurlbuts). Essentially, the agreement provided Morrow would construct a gate valued at $10,562.32 on Hurlbuts' property in consideration for a twenty five year "hunting lease" on approximately 1055 acres. The agreement was filed of record in October 1990.

¶ 3 In December 1992, Hurlbuts, who at the time were both eighty-two, conveyed their property to The Clyde and Beatrice Hurlbut Living Trust (the Trust), with themselves as trustees. In November 1997, Clyde Hurlbut died, leaving Appellee, Beatrice Hurlbut (Trustee), as the sole trustee. After Clyde Hurlbut's death, Trustee decided to sell the "Hunting Lease" property owned by the Trust, but allegedly the existence of the lease agreement with Morrow made the property largely unmarketable. Trustee attempted to obtain Morrow's release of the agreement, and when no release could be agreed, Trustee filed this action.

STATEMENT OF THE CASE

¶ 4 In her Petition, Trustee alleged that at the time the agreement was signed, Morrow orally agreed he would, upon payment by Hurlbuts of the "unamortized cost of the gate", release the agreement if Hurlbuts decided to sell the property. The Petition further alleged that when the Trust sought to revoke Morrow's rights under the agreement, he demanded payment "far in excess of the unamortized cost of the gate." The Trust asserted claims for [a] rescission of the agreement, [b] declaratory judgment the agreement was subject to revocation, and [c] slander of title.¹

¶ 5 In his Answer, Morrow denied, among other things, any agreement to release the "Hunting Lease" in the event Hurlbuts decided to sell the property. Morrow later filed a Counterclaim, alleging fraud in the inducement, conspiracy to defraud and breach of contract. Each of Morrow's claims were based on 260 acres purported to be included in the 1,055 acres covered by the agreement, but which had been previously conveyed to the three non-trustee plaintiffs (the Hurlbut heirs). The trial court granted Trustee's motion to strike the counterclaim, finding various supporting grounds.

¶ 6 The Pretrial Conference Order listed fraud in the inducement and slander of title as the Trust's remaining grounds for recovery. Quiet title, declaration of rescission, damages, and judgment terminating the "Hunting Lease" were listed as relief sought. The order required the parties to provide the court with questions to the jury "as to its recommendations for resolution of the equitable issues."

¶ 7 At trial, the trial court allowed Trustee to amend her equitable claim to conform to the proof. The jury was instructed only on the legal issues of fraud and slander of title, and was not presented with equitable questions. The jury returned a verdict for Morrow, specifically finding he had not fraudulently induced Hurlbuts to sign the "Hunting Lease". The judgment on the jury verdict for Morrow is not at issue here.

¶ 8 After the jury was dismissed, the trial court ordered a hearing for argument on "the equitable considerations in the case." At this subsequent hearing, the trial court also heard evidence on the value of the "Hunting Lease". Pursuant to Morrow's request, the trial court, considering evidence from the trial and the later hearing, entered findings of fact and conclusions of law as to the equitable issues.

¶ 9 The trial court's findings and conclusions were later incorporated into its judgment cancelling the "Hunting Lease" upon Trustee paying Morrow $28,500.00 as compensation. The trial court's judgment further denied Morrow's motion to enter judgment on the jury verdict "to the extent that said motion attempts to deprive this Court of its equitable jurisdiction to cancel the hunting lease." Morrow appealed from this judgment.

¶ 10 A few weeks after Morrow filed his Petition in Error, Trustee moved in the trial court to require Morrow to execute a release of the "Hunting Lease" or post a supersedeas bond. In response, Morrow moved to stay enforcement of the judgment. The trial court found the judgment was not stayed because of Morrow's failure to post a supersedeas bond and decreed the lease cancelled. Morrow filed a Supplemental Petition in Error to appeal this latter trial court order.

STRIKING OF MORROW'S COUNTER-CLAIM

¶ 11 Here on appeal Morrow contends the trial court erred in refusing to allow him to file his pretrial counterclaim. He asserts he "sought to amend his answer to add a counterclaim against [Trustee] to address its misrepresentation .. as to its non-ownership of the property that was actually owned by [the Hurlbut heirs]."

¶ 12 Allowing amendment of pleadings is within the discretion of the trial court, and we will not overturn its decision unless shown that discretion was abused. Bittle v. Oklahoma City University, 2000 OK CIV APP 66, 6 P.3d 509, quoting from Prough v. Edinger 1993 OK 130, 862 P.2d 71. The trial court's discretion regarding amendment is limited by 12 O.S. Supp.2000 § 2015(A), which provides that leave to amend "shall be freely given when justice so requires." Id., at 513. There is no abuse if the trial court relies on a reason such as "undue delay, bad faith or dilatory motive on the part of the movant, ..., undue prejudice to the opposing party ...". Id.

¶ 13 Morrow's Answer was filed on January 25, 1999. In the Answer he specifically addressed and denied the Hurlbut heirs' quiet title claim based on their ownership of the 260 acres. Morrow's Counterclaim was filed on June 7, 1999, without leave of court or written consent of the adverse parties as required by § 2015(A). The counterclaim, as initially filed, was thus a nullity. Hunter v. Echols, 1991 OK 114, 820 P.2d 450. Morrow did belatedly seek leave of court to file his counterclaim in his June 24, 1999, response to the Plaintiffs' motion to strike the counterclaim.

¶ 14 In granting the motion to strike, the trial court found the counterclaim was [a] filed without leave of court or written consent of plaintiffs, [b] filed after the deadline for amendment of pleadings as provided in the court's scheduling order, and [c] unduly delayed in that Morrow was aware, or should have been aware, of the Hurlbut heirs' claim at the time of filing his Answer. The trial court further found the counterclaim would result in undue prejudice to plaintiffs.

¶ 15 The facts essential to Morrow's counterclaim were evident, at the latest, in the Petition initiating this action. In fact, the record reflects that even prior to litigation the Hurlbut heirs made a written request on Morrow to release any rights to their 260 acres. Morrow's Answer was not filed until approximately seven weeks after the Petition. We find nothing to suggest Morrow was in any way prevented from filing a timely counterclaim within the constraints of § 2015(A). Morrow offers no plausible explanation as to why he could not have done so.

¶ 16 Further, the court's Scheduling Order, filed April 23, 1999, and agreed to by Morrow, provided that no amendments to pleadings could be filed after May 10, 1999. The Court of Civil Appeals has held it was not an abuse of the trial court's discretion to deny an application to amend a pleading for failure to comply with a pretrial scheduling order. Phillips v. Oklahoma Farmers Union Mut. Ins. Co., 1993 OK CIV APP 199, 867 P.2d 1361.

¶ 17 Additionally, all parties had been deposed prior to Morrow's counterclaim. Allowing Morrow's new claims of fraud, conspiracy and breach of contract would have necessitated the added expense of repeating depositions and would have caused delay in bringing the action to trial. The trial court's findings and conclusion in striking the counterclaim are supported by the record. Balancing undue delay and prejudice to Trustee against the needs of justice under § 2015(A), we find no abuse of the trial court's discretion in not allowing Morrow's pretrial counterclaim. Bittle, 6 P.3d at 513.

ALLEGED ERROR IN ALLOWING TRUSTEE TO AMEND HER CLAIMS

¶ 18 Morrow also contends the trial court erred in allowing Trustee to amend her pleading to add a claim for reformation during the trial. This contention is without merit because Morrow did not object to Trustee's request to amend the pleadings to conform to the evidence. By failing to object to amendment of pleadings to conform to the evidence, Morrow, by implication, consented to trial of those issues added by the amendment. See, 12 O.S. Supp.2000 § 2015(B).

¶ 19 Also, by failing to object in the trial court, Morrow waived his right to raise the question here on appeal. Having not called the alleged error to the trial court's attention, Morrow may not raise it for the first time before this Court. Wilson v. Still, 1991 OK 108, 819 P.2d 714. We note that while Morrow complains of Trustee's amending to add a claim of reformation, he neglects to mention Trustee also received leave...