Loper v. Austin

• Decision Date: 12 June 1979
• Docket Number: No. 51185,51185
• Citation: 596 P.2d 544
• Parties: Gail Marie LOPER, and Matt Dowling, Appellants, v. Don AUSTIN, Court Clerk, Tulsa County, Oklahoma, Appellee.
• Court: Oklahoma Supreme Court

Page 544

596 P.2d 544

Gail Marie LOPER, and Matt Dowling, Appellants, v. Don AUSTIN, Court Clerk, Tulsa County, Oklahoma, Appellee.

No. 51185.

Supreme Court of Oklahoma.

June 12, 1979.

Certiorari to Court of Appeals, Division 1.

Gail Marie Loper and Matt Dowling appeal from a summary judgment granted in favor of the appellee in the District Court of Tulsa County, Oklahoma, Honorable Richard Comfort, District Judge. The Court of Appeals, Division 1, reversed the district court. Appellee seeks certiorari.

CERTIORARI GRANTED; OPINION OF COURT OF APPEALS VACATED; JUDGMENT OF TRIAL COURT AFFIRMED.

Bill M. Chaffin, Schick & Dowling, Oklahoma City, for appellants.

S. M. Fallis, Jr., Dist. Atty., Andrew B. Allen, Asst. Dist. Atty., Tulsa, for appellee.

IRWIN, Vice Chief Justice.

Appellants, Loper and Dowling, recovered a judgment against Tommy Wayne Turner in the District Court of Haskell County. In an attempt to impress a lien upon property owned by Turner in Tulsa County, appellants filed a copy of the judgment with appellee Austin's office. For purposes of this appeal it is undisputed that appellee, or his employee, filed that judgment under the wrong name in the judgment docket in Tulsa County. Plaintiffs contend that appellee's error allowed Turner to sell real estate located in Tulsa County without first satisfying this judgment.

Austin filed a Motion for Summary Judgment attaching affidavits by a Deputy County Assessor and Turner which indicate that the only property owned by Turner in Tulsa County was his homestead. Since the judgment lien could not attach to homestead property, trial court determined that no "damage" had been suffered by the appellants as a result of appellee's negligence. Since "damage" or "injury" is one of the elements essential to a case of negligence, it was determined that summary judgment was proper.

In Runyon v. Reid, Okl., 510 P.2d 943, 946 (1973), this Court considered the showing required on a Motion for Summary Judgment and noted:

"In cases such as this where defendant moves for a summary judgment and is not relying upon an affirmative defense, the defendant must show that there is no substantial controversy as to one fact material to plaintiff's cause of action and that this face is in defendant's favor." (Citations omitted)

"Once defendant has introduced evidentiary materials indicating that there is no substantial controversy as to one fact material to plaintiff's cause of action and that this fact is in defendant's favor, plaintiff then has the burden of showing that evidence is available which would justify a trial of the issue."

The evidentiary materials submitted by appellee met this burden. Appellants produced no evidentiary materials in response but assert the questions of fact still exist.

This assertion is premised first on the argument that Turner's affidavit is insufficient to establish the homestead character of the property since appellants had not cross-examined Turner. It is argued that trial court never ruled on a motion to require appellee to produce Turner for deposition. That motion recites that appellee had given appellants Turner's address, but indicates that he had not been contacted by appellants. No authority is cited which would require a defendant to produce an individual for deposition over whom he has no control. At no time did the appellants request the court for a continuance of the consideration of the summary judgment until Turner's deposition could be taken. They assert in briefs that efforts have been made to locate the witness, but no evidence was presented to the trial court concerning these efforts. Appellants did not even favor the trial court, or this Court, with what evidence it hopes to obtain by taking Turner's deposition. Appellants had the burden of producing evidence to counter Turner's affidavit, and they have not shown that circumstances are such that the affidavit should be disregarded.

Appellants next assert that the homestead character of property is always a question of fact for the jury since it depends on the intention and mental state of the owner. Every fact determined summarily...