Wishon v. Sanders

• Decision Date: 09 April 2020
• Docket Number: Case No. 118,050
• Citation: 467 P.3d 721
• Parties: Gene WISHON and Shirley Wishon, Plaintiffs/Appellants, v. Brian SANDERS, Amy L. Sanders, and United States of America, on behalf of its agency, Farm Service Agency United States Department of Agriculture, Defendants/Appellees.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

467 P.3d 721

Gene WISHON and Shirley Wishon, Plaintiffs/Appellants,

v.Brian SANDERS, Amy L. Sanders, and United States of America, on behalf of its agency, Farm Service Agency United States Department of Agriculture, Defendants/Appellees.

Case No. 118,050

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

FILED APRIL 9, 2020

Mandate Issued: June 17, 2020

Terry W. Tippens, Doneen Douglas Jones, FELLERS, SNIDER, BLANKENSHIP, BAILEY & TIPPENS, P.C., Oklahoma City, Oklahoma, for Plaintiffs/Appellants,

Ed Cadenhead, THE CADENHEAD LAW FIRM, P.C., Seminole, Oklahoma, and Jerry Colclazier, Amie R. Colclazier, COLCLAZIER & ASSOCIATES, Seminole, Oklahoma, for Defendants/Appellees.

Bay Mitchell, Presiding Judge:

¶1 Plaintiff/Appellant Shirley Wishon (Wishon) appeals from an order of the trial court denying her motion for a writ of assistance to recover real property and finding her 2011 quiet title judgment against Defendants/Appellees Brian and Amy Sanders (the Sanders) was dormant under 12 O.S. 2011 § 735. After de novo review, we find Oklahoma's dormancy provision does not apply to quiet title judgments. However, because the 2011 action only quieted title and does not appear to have properly adjudicated Wishon's right to possession, we find the court properly denied the writ of assistance. Wishon may seek a writ of assistance in any case in which the court has properly ordered possession of the property or she must bring a new action to recover possession. We affirm.

¶2 The real property at issue in this case — several tracts of land in Seminole County (the Subject Property) — has been the subject of numerous lawsuits between the parties. The litigation began in Kingfisher County in case no. CJ-2003-27. Gene Wishon (now deceased) and Shirley Wishon sued Defendant/Appellee Brian Sanders to recover on a promissory note and to enforce obligations related to unpaid debts of a company in which Gene and Brian had been members. The Wishons filed a lis pendens on the Subject Property along with the lawsuit. After recovering judgments totaling $1,082,381.03, the Wishons moved to execute against the Subject Property and purchased the property at a sheriff's sale. Sanders did not appeal the order confirming the sheriff's sale. The Kingfisher County district court ordered the court clerk to issue of a writ of assistance so that the Wishons could take possession of the property. The writ, however, was returned by the sheriff as "unable to serve."

¶3 Since then, the Sanders have taken various steps to attempt to retain title and possession of the Subject Property.¹ Wishon has obtained two quiet title judgments in Seminole County to defeat the Sanders' various claims to the property and to remove apparent clouds on the title created by the Sanders' actions. Both orders quieting title were affirmed on appeal. See Wishon v. Sanders , Case No. 109,893 (decided October 17, 2012) and Wishon v. Sanders , Case No. 114,977 (decided February 16, 2017).

¶4 Although title to the Subject Property has been quieted twice, Wishon has been unable to obtain possession of the property. Wishon recently filed motions seeking writs of assistance to recover possession of the property in each of the three actions discussed above. This appeal springs from the first quiet title action. The order quieting title in this case was entered on August 24, 2011. Wishon challenges the court's finding that she can no longer seek to enforce the judgment because it has gone dormant pursuant to 12 O.S. 2011 § 735.

¶5 The interpretation and effect of Oklahoma's dormancy statute present questions of law, which are reviewed de novo . See Hub Partners XXVI, Ltd. v. Barnett , 2019 OK 69, ¶6, 453 P.3d 489. Under the de novo standard of review, we have plenary, independent, and non-deferential authority to determine whether the trial court erred in its legal rulings. Id. The fundamental purpose of statutory construction is to determine and give effect to legislative intent. Humphries v. Lewis , 2003 OK 12, ¶7, 67 P.3d 333. "Generally, the plain language of a statute dictates its meaning." McNeill v. City of Tulsa , 1998 OK 2, ¶9, 953 P.2d 329. However, when the legislative intent cannot be determined from the statutory language due to ambiguity or conflict, rules of statutory construction should be employed. Keating v. Edmondson, 2001 OK 110, ¶8, 37 P.3d 882. Legislative intent is ascertained from the whole act in light of its general purpose and objective, and we must consider relevant provisions together to give full force and effect to each. Id. Legislative purpose and intent may also be ascertained from the language in the title to a legislative enactment. Naylor v. Petuskey , 1992 OK 88, ¶4, 834 P.2d 439.

¶6 Oklahoma's dormancy statute is located in Title 12, Chapter 13, which is titled "Executions." Section 735 is grouped with six other statutes under the subchapter titled "General Provisions." All of the statutes grouped with § 735 address executions. See 12 O.S. § 731 (executions defined and how issued); § 732 (kinds of execution); § 733 (property subject to levy); § 734 (property bound after seizure); § 736 (writs of execution); and § 737 (priority among execution). The remainder of the provisions in Chapter 13 address more specifically the procedures and rules for various methods of execution.

¶7 The dormancy statute is also focused on executions. Section 735 provides as follows:

A. A judgment shall become unenforceable and of no effect if, within five (5) years after the date of filing of any judgment that now is or may hereafter be filed in any court of record in this state:

1. Execution is not issued by the court clerk and filed with the county clerk as provided in Section 759 of this title;

2. A notice of renewal of judgment substantially in the form prescribed by the Administrative Director of the Courts is not filed with the court clerk;

3. A garnishment summons is not issued by the court clerk; or

4. A certified copy of a notice of income assignment is not sent to a payor of the judgment debtor.

B. A judgment shall become unenforceable and of no effect if more than five (5) years have passed from the date of:

1. The last execution on the judgment was filed with the county clerk; 2. The last notice of renewal of judgment was filed with the court clerk;

3. The last garnishment summons was issued; or

4. The sending of a certified copy of a notice of income assignment to a payor of the judgment debtor.

C. This section shall not apply to judgments against municipalities or to child support judgments by operation of law.

12 O.S. 2011 § 735. In sum, § 735 requires enforcement (or active attempts at enforcement) of a judgment within five years. A party must execute on his judgment, obtain a garnishment summons, send a certified copy of an income assignment, or file a renewal of judgment within five years of the judgment. If more than five years have passed since the last execution, garnishment summons, income assignment, or renewal, the judgment becomes unenforceable.

¶8 An execution is a process of the court through which the sheriff is ordered to enforce a judgment. 12 O.S. 2011 § 731 ; Black's Law Dictionary 650, (9th ed. 2009). There are three types of executions: (1) against the judgment debtor's property; (2) for the delivery of real or personal property; and (3) special executions. The first type of execution is commonly referred to as a "general execution," meaning that any non-exempt property of the judgment debtor may be executed upon and sold for the payment of judgment debts. See 12 O.S. 2011 § 733. The second kind of execution is used where the judgment provides for recovery of specific real or personal property. The third kind of execution, a special execution, is one that directs a levy upon a specific piece of property. See Okla. Salvage & Supply Co. , 1926 OK 595, ¶5, 122 Okla. 128, 251 P. 1006 ("A special execution is one that directs a levy upon some special property, while a general execution is one that makes no such requirement but demands a levy upon the debtor's property generally.").

¶9 Interpreting the dormancy statute as applying to all judgments is problematic because it requires us to assume that all judgments may be enforced through execution. A quiet title judgment does not require or allow for execution because a quiet title judgment, standing alone, does not provide for any monetary award or award possession of the property. See Schultz v. Evans , 1951 OK 61, ¶13, 204 Okla. 209, 228 P.2d 626 ("The purpose of an action to quiet title ... is to determine who is the real owner of the property and to put to rest all adverse claims.") (citation omitted) and Krosmico v. Pettit , 1998 OK 90, n. 1, 968 P.2d 345 ("A party ... claiming right of possession obtains relief by an action in ejectment[.]"). For the same reason, garnishment summons and income assignments are not necessary or available to effectuate a quiet title judgment.

¶10 Although technically, a party could file a renewal of the quiet title judgment every five years, no published decision in Oklahoma has imposed such a requirement, and because of the nature of quiet title judgments, we will not do so here. "[T]he judgment rendered [in a quiet title action] is final and conclusive as against the parties thereto and their privies." Schultz v. Evans , 1951 OK 61, ¶13, 204 Okla. 209, 228 P.2d 626 (citation omitted). A quiet title judgment simply clears and removes any clouds on title to real property. Nothing more is required to preserve it.²

¶11 The statute does not address whether judgments that cannot be executed upon may become dormant, and, if so, how to prevent dormancy of those judgments. Statutory construction that would lead to an absurdity must be avoided, and a rational construction should be given to a statute if the language fairly permits. Ledbetter v. Oklahoma Alcoholic Beverage Laws Enforcement Comm'n. , 1988 OK 117, ¶7, 764 P.2d 172. Because none of the alternatives offered by §...