Jayson W. Davison Trust of 2010, v. Brockhaus, 113,175.

• Decision Date: 26 August 2015
• Docket Number: No. 113,175.,113,175.
• Citation: 366 P.3d 1159
• Parties: The JAYSON W. DAVISON TRUST OF 2010, u/t/a 7/8/10 and Jayson W. Davison, Trustee, Plaintiff/Appellant, v. Pat BROCKHAUS, Defendant/Appellee, and Don Wayne Brockhaus, Successor Trustee of the Arthur J. Brockhaus Trust, u/t/a 4/1/1994, Defendant/Third Party Plaintiff/Appellee, v. Logan County Treasurer, Third Party Defendant/Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

366 P.3d 1159

The JAYSON W. DAVISON TRUST OF 2010, u/t/a 7/8/10 and Jayson W. Davison, Trustee, Plaintiff/Appellant,

v.Pat BROCKHAUS, Defendant/Appellee,andDon Wayne Brockhaus, Successor Trustee of the Arthur J. Brockhaus Trust, u/t/a 4/1/1994, Defendant/Third Party Plaintiff/Appellee,

v.Logan County Treasurer, Third Party Defendant/Appellee.

No. 113,175.

Court of Civil Appeals of Oklahoma, Division No. 2.

Aug. 26, 2015.

Paul Streck, Streck & Associates, Edmond, Oklahoma, for Plaintiff/Appellant.

Kraettli Q. Epperson, Sara K. Hawkins, Mee Mee Hoge & Epperson PLLP, Oklahoma City, Oklahoma, for Defendant/Appellee and Defendant/Third Party Plaintiff/Appellee.

JANE P. WISEMAN, Judge.

¶ 1 The Jayson W. Davison Trust of 2010, u/t/a 7/8/10, and Jayson W. Davison, Trustee, appeal the trial court's order granting summary judgment in favor of Defendant and Third–Party Plaintiff, Don Wayne Brockhaus, Successor Trustee of the Arthur J. Brockhaus Trust, u/t/a 4/1/1994. The primary issue on appeal is whether Don Brockhaus, as successor trustee, received the required notice of the tax sale of certain real property in Guthrie, Oklahoma. This appeal was assigned to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36, 12 O.S. Supp. 2014, ch. 15, app. 1, without appellate briefing. After review, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 Jayson W. Davison, as trustee as of the Jayson W. Davison Trust of 2010, u/t/a 7/8/10 (Davison), filed an affidavit for forcible entry and detainer in small claims court in July 2012, alleging he is the owner of property at 708 Meadow Rock Trail, Guthrie, Oklahoma. Davison obtained the property on June 11, 2012, through a County Treasurer's resale deed, and placed the property in the Jayson W. Davison Trust of 2010 (Davison Trust) through a quit claim deed dated June 26, 2012. Pat Brockhaus was named as the defendant. Davison seeks possession of the property, alleging Brockhaus lives on the property and is wrongfully in possession of it.

¶ 3 Brockhaus asked that the case be dismissed because it was brought as an eviction proceeding and because he claims an ownership interest in the property, the proper action is one in ejectment. Brockhaus further alleged the Logan County Treasurer failed to obtain proper service and or to give proper notice of the tax resale of the property. The case was transferred from the small claims division to the civil division docket on October 25, 2012.

¶ 4 Davison filed a motion for summary judgment, and in his brief in support of the motion, he alleged as undisputed the facts summarized and quoted below. We have included Brockhaus's response to each statement of undisputed fact.

• The Davison Trust is the owner of the property located at 708 Meadow Rock Trail, Guthrie, Oklahoma (Property), pursuant to a County Treasurer's Resale Deed, dated June 11, 2012, and a quit claim deed dated June 26, 2012, which placed the property in the Davison Trust. (Disputed. "Don Wayne Brockhaus, Trustee of the Arthur J. Brockhaus Trust, U/T/A 4/1/1994, is the owner of [Property]. Defendant, Pat Brockhaus, has an equitable interest in [Property].")

• Pat Brockhaus resides at the Property and his mailing address is 708 Meadow Rock Trail, Guthrie, Oklahoma. (Admitted. )

• Pat Brockhaus is wrongfully in possession of Property. (Disputed. )• Davison Trust has legal title to Property and is entitled to possession. Davison Trust has made demand on Pat Brockhaus to vacate, but he has refused to do so. ("Disputed in Part. [Davison Trust] does not have legal title to the real property which is a subject of this case. Admitted in Part. Pat Brockhaus does refuse to leave the premises.")

• Pat Brockhaus does not currently have any ownership interest in Property and had no ownership interest when Property "was sold for delinquent taxes." "Prior to the tax sale, title to the property was held by the Arthur Brockhaus Trust, u/t/a 4/01/1994." Davison Trust now holds title to Property. ("Disputed. Pat Brockhaus has an equitable interest in the property, Don Wayne Brockhaus, Trustee of the Arthur J. Brockhaus Trust, U/T/A 4/1/1994 has legal title to [Property]. [Davison Trust] does not have legal title to [Property] which is a subject of this case.")

• "Pat Brockhaus was initially served with a Ten Day Notice to Quit on June 22, 2012." Pat Brockhaus failed to vacate property and Davison Trust commenced a Forcible Entry and Detainer action. (Admitted. )

• "Pat Brockhaus was served with a Forcible Entry and Detainer on August 20, 2012, setting forth a hearing date of August 24, 2012 at 1:30 P.M. The August 24, 2012 hearing was continued to September 6, 2012 at 9:00 A.M. At the hearing on September 6, 2012, following the arguments of counsel, the Court set forth a Briefing Schedule and continued the hearing to October 4, 2012, at 9:00 A.M. The October 4, 2012, hearing was then continued to October 11, 2012, at 9:00 A.M." (Admitted. )

• At the October 11th hearing, the trial court found that Davison Trust's action should proceed as one in ejectment and the case should be transferred to the civil division. The trial court ordered Pat Brockhaus to file a verified answer within 10 days after the transfer of the case to the civil division. (Admitted. )

• Pat Brockhaus failed to pay the filing fee to transfer the case and Davison Trust paid $85.70 to transfer the case. Pat Brockhaus reimbursed Davison Trust. ("Disputed in Part. Defendant, Pat Brockhaus, was not ordered to pay the necessary filing fees to transfer this case. Admitted. Defendant, Pat Brockhaus, has subsequently reimbursed the Plaintiff for the transfer fee.")

• Pat Brockhaus's answer was due 10 days after the transfer, or by November 5, 2012. (Disputed. Pat Brockhaus filed a brief in support on September 17, 2012. Although the brief was not titled "Answer," "one can easily conclude it contains each and every essential element of an answer.")

• Pat Brockhaus has failed to file a verified answer of any documentation to support his allegation he has an ownership interest in Property. (Disputed. Pat Brockhaus filed a brief in support on September 17, 2012. Although the brief was not titled "Answer," "one can easily conclude it contains each and every essential element of an answer.")

• Pat Brockhaus remains in wrongful possession of Property. (Disputed. )

¶ 5 Pat Brockhaus filed a supplemental answer, which also contained counterclaims and a third-party petition. The filing added Don Wayne Brockhaus, Successor Trustee of the Arthur J. Brockhaus Trust, u/t/a 4/1/1994 (Brockhaus Trust), as a third-party plaintiff, and added the Logan County Treasurer (Treasurer) as a third-party defendant. Pat and Brockhaus Trust alleged Brockhaus Trust owns Property and that Treasurer conducted a tax sale at which Treasurer purported to sell Property. They asserted Brockhaus Trust was not served with proper notice before the tax sale. They alleged the document that was sent was directed to " ‘Brockhaus, Arthur J. Trust c/o Glyna Noe, 10312 Park Road, Edmond, OK 73034–000 ’ not Don Wayne Brockhaus at 10907 Magnolia Blvd., Suite 467, North Hollywood, CA 91601, who is the Trustee of the Trust." Pat and Brockhaus Trust alleged Glyna Noe is not the trustee or successor trustee of this Trust. They further alleged the notice did not contain "the amount of all delinquent taxes, costs, penalties and interest accrued, due and unpaid as required by 68 O.S. § 3127." The mail sent to the Edmond address was returned unclaimed. No notice was sent to Don Wayne Brockhaus as Successor Trustee or to Pat Brockhaus at Property.

¶ 6 Pat and Brockhaus Trust asserted affirmative defenses of negligence on the part of Davison Trust or Treasurer, that Davison Trust's allegations are not well grounded in fact or law and are not warranted by existing law or by good faith extension of existing law, and that Davison Trust failed to state a claim on which relief could be granted. Pat and Brockhaus Trust alleged claims against Davison Trust for quiet title, trespass, and unjust enrichment.

¶ 7 The trial court overruled Davison Trust's motion for summary judgment. Pat and Brockhaus Trust filed a "motion for leave of the court to amend their counterclaims and complaint of defendant and third party plaintiff and petition of third party plaintiff." The supplemental counterclaims and third-party petition sought to add seven third-party defendants involved in the sale and purchase of 5 properties at the tax sale which are allegedly owned by Brockhaus Trust. Davison Trust objected to the motion for leave to amend. The trial court denied Pat's and Brockhaus Trust's motion for leave to amend and granted Davison Trust's motion to enter on the non-jury docket.

¶ 8 Brockhaus Trust then filed a motion for summary judgment asserting the following as uncontroverted facts:

1. Brockhaus Trust owned Property prior to June 11, 2012.

2. Brockhaus Trust obtained title to Property through a warranty deed dated April 1, 1994.

3. Don Wayne Brockhaus became successor trustee of the Brockhaus Trust after the death of Arthur J. Brockhaus, who was the original trustee.

4. Treasurer caused the purported notice of the resale of Property for delinquent taxes to be published on May 10, 2012, May 17, 2012, May 24, 2012, and May 31, 2012, but Brockhaus Trust did not receive notice.

5. "Treasurer caused purported Resale Notice of the Tax Resale to be mailed by certified mail on or about April 5, 2012 to a sister (Glyna Noe) of Don Wayne Brockhaus, Successor Trustee.... The certified mail was sent to the sister's address and not the Property itself. The sister was not the Trustee nor was she listed as a Successor Trustee in the Memorandum of Trust filed in Book 1559, at Page 103 of the records of Logan County.... Said Memorandum was provided to the Treasurer through a Title Search Affidavit the Treasurer received from Logan County Abstract...."

6. The notice was returned "unclaimed" and Brockhaus Trust never received the notice. "As a result of

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