Opinion
Case Number: 118660
04-14-2021
TREY B. SHROPSHIRE, Plaintiff/Appellant, v. WILLIAM D. PARSONS, III, ANNA PARSONS and ENERGY ROPERTY MANAGEMENT, LLC, Defendants/Appellees.
Jason C. Bollinger, RESOLUTION LEGAL GROUP, Oklahoma City, Oklahoma, for Plaintiff/Appellant Richard R. Rice, Orion A. Strand, RICE LAW FIRM, Midwest City, Oklahoma, for Appellees
APPEAL FROM THE DISTRICT COURT OF
OKLAHOMA COUNTY, OKLAHOMA
HONORABLE TRENT R. PIPES, TRIAL JUDGE
AFFIRMED
Jason C. Bollinger, RESOLUTION LEGAL GROUP, Oklahoma City, Oklahoma, for Plaintiff/Appellant
Richard R. Rice, Orion A. Strand, RICE LAW FIRM, Midwest City, Oklahoma, for Appellees
STACIE L. HIXON, PRESIDING JUDGE:
¶1 Trey B. Shopshire (Tenant) appeals judgment entered in favor of Defendants William D. Parsons, III, Anna Parsons, and Energy Property Management, LLC d/b/a Re/Max Energy Property Management ("Defendants", or collectively, "Landlord") on their counterclaim for damages in a small claims action. Tenant contends Landlord's Counterclaim or Setoff was not verified in conformance with 12 O.S.2011, § 1758, and that the trial court erred by allowing Landlord to proceed on that claim. We find no error and affirm the trial court's Judgment entered January 16, 2020.
The trial court's Amended Narrative Statement in Lieu of Transcript reflects that judgment on the counterclaims at issue was awarded to all three Defendants William D. Parsons, III, Anna Parsons and Energy Property Management, LLC, d/b/a Re/Max Energy Property Management. The form Journal Entry of Judgment completed by the parties refers to "Defendant" singular, which we take to be a scrivner's error.
BACKGROUND
¶2 Tenant filed a Small Claims Affidavit on December 17, 2019, alleging Landlord converted his personal property, breached the parties' lease agreement, and requested judgment against Landlord in the amount of $3,405.00. Hearing was set for January 16, 2020.
¶3 On January 10, 2020, Landlord filed a "Counterclaim or Setoff" alleging Tenant was indebted to Landlord in the amount of $2,519.52 for back rent and damages in excess of Tenant's security deposit. The Counterclaim or Setoff states that it was "duly sworn" by Landlord's counsel, and is signed, but not notarized.
¶4 The parties appeared for hearing on January 16, 2020. Tenant objected to Landlord's Counterclaim or Setoff because it was not verified. The trial court overruled Tenant's objection, and proceeded to trial. Following introduction of evidence and sworn testimony from the parties and a representative of Re/Max Energy Property Management, the trial court awarded nothing to Tenant, and judgment to Landlord in the amount of $3,080.00, with interest, $300.00 in attorney fees and $20.00 in costs.
¶5 Tenant appeals.
STANDARD OF REVIEW
¶6 The issue presented on appeal is the trial court's construction of 12 O.S.2011, § 1758. Statutory construction is a question of law which is reviewed de novo. Fanning v. Brown, 2004 OK 7, ¶ 8, 85 P.3d 841.
ANALYSIS
¶7 Tenant contends the trial court erred by allowing Landlord to proceed on a Counterclaim and Setoff not verified as required by 12 O.S.2011, § 1758. Section 1758 sets forth the requirements of a "Counterclaim or Setoff by Verified Answer":
Tenant asserts as a separate proposition that the trial court erred by threatening to dismiss his claim, if he did not move on from his arguments on the deficiency of Landlord's pleading. We need not consider this issue. The trial court did not dismiss Tenant's claim and we consider Tenant's objection to the form of Landlord's pleading sufficiently preserved for review.
No formal pleading, other than the claim and notice, shall be necessary, but if the defendant wishes to state new matter which constitutes a counterclaim or a setoff, he shall file a verified answer, a copy of which shall be delivered to the plaintiff in person, and filed with the clerk of the court not later than seventy-two (72) hours prior to the hour set for the first appearance of said defendant in such action.
¶8 The statute further prescribes a particular form for the Counterclaim or Setoff by Verified Answer, which states in substance:
__________, being first duly sworn, deposes and says: That said plaintiff is indebted to said defendant in the sum of $ ________ for _______, which amount defendant prays may be allowed as a claim against the plaintiff herein.12 O.S.2011, § 1758.
________________________________________________
Subscribed and sworn to before me this _____ day of _____, 19__.
______________________________________
Notary Public (or Clerk or Judge)
¶9 Landlord's Counterclaim and Setoff, properly captioned, stated:
COMES NOW Orion A. Strand, counsel for Defendants William D. Parsons, III, Anna Parsons, and Energy Property Management, LLC, being first duly sworn, deposes and says:
That said Plaintiff is indebted to said Defendants in the sum of $2,519.52 for back rents and damages in excess of Plaintiff's security deposit, which amount Defendants pray may be allowed as a claim against Plaintiff herein.
¶10 Counsel's signature was not verified by notary, clerk or judge. Tenant contends this deficiency was fatal, and deprived him of adequate notice of the substance of Landlord's counterclaim in advance of trial.
¶11 First, Tenant has presented no authority which required the trial court to dismiss or otherwise disallow Landlord's counterclaim for lack of a verification. The Oklahoma Supreme Court has considered that the 72-hour notice and filing requirement of section 1758 is mandatory, in conjunction with considering whether an untimely counterclaim can be transferred to district court under 12 O.S.2011, §§ 1757 or 1759. See e.g. Carter v. Gullett, 1979 OK 146, ¶ 7, 602 P.2d 640; Eskridge v. Ladd, 1991 OK 3, ¶ 7, 811 P.2d 587. Carter relied on the reasoning of Hughes v. Dunsmoor, 1979 OK CIV APP 22, 594 P.2d 1231, which held that a determination that a counterclaim might be filed at a later time defeats the purpose of section 1758, which states when the counterclaim "shall" be filed. Id. at ¶ 8. These cases do not address verification. Tenant extrapolates their holdings establish that the verification requirement is also mandatory under the plain language of section 1758.
¶12 "Legislative intent governs statutory interpretation and this intent is generally ascertained from a statute's plain language." State ex rel. Oklahoma State Dep't of Health v. Robertson, 2006 OK 99, ¶ 6, 152 P.3d 875. "However, where a strict, literal interpretation of the statute would lead to inconsistent or incongruent results between the enactment's different parts, judicial interpretation becomes necessary to reconcile the discord." Id. "In the interpretation of statutes, we do not limit our consideration to a single word or phrase. Instead, we construe together the various provisions of relevant enactments, in light of their underlying general purpose and objective, to ascertain legislative intent." Id.
¶13 Section 1758 provides that, if a defendant wishes to state a counterclaim, he "shall file a verified answer . . ." delivered in accordance with the statute's prescribed time limit. While "shall" signals a mandatory requirement, it appears to modify the requirement that a verified answer be filed, in order to assert a counterclaim. This interpretation carries out the intent that a counterclaim be presented through timely filing, so as not to delay trial, as well as the goal of swift access to inexpensive and speedy justice, "uncomplicated by the formal demands of superior courts." See Patterson v. Beall, 2000 OK 92, ¶ 8, 19 P.3d 839. It is also consistent with Oklahoma courts' general recognition that the want of a verification, when required, is not jurisdictional. See e.g. Matter of Delaney, 1980 OK 140, ¶ 4, 617 P.2d 886; State ex rel. Dep't of Pub. Safety v. 1985 GMC Pickup, Serial No. 1GTBS14EOF2525894, OK Tag No. ZPE852, 1995 OK 75, ¶ 19, 898 P.2d 1280.
¶14 If the lack of verification did not deprive the trial court of jurisdiction, we consider whether the trial court was nevertheless required to strike the counterclaim for failure to comply with the statute in this case. On this point, Bulard Air Services, LLC v. Brown Aviation, Inc., 2019 OK CIV APP 39, 446 P.3d 1263, is persuasive. In that case, defendant appealed an order recovering property in a replevin action. Title12 O.S.2011, § 1571 allowed a plaintiff to claim delivery of the property at the commencement of suit, through verified petition. Defendant argued the trial court erred because, among other things, plaintiff's petition was not verified. However, the property was not removed at the commencement of the case, or based solely on the petition. The trial court took sworn testimony and exhibits before ruling. Under these facts, the appellate court found the order for removal of property was "properly founded on evidence" and not invalidated by lack of verified petition. Id. at ¶ 17.
¶15 As suggested by Bulard, the purpose of a verification is to ensure that relief rendered thereon is based upon evidence or sworn testimony. Here, though the counterclaim and set-off were not verified, the trial court heard sworn testimony of all three Defendants and took evidence. Any defect in lack of verification was remedied at that time.
¶16 Meanwhile, the lack of verification did not equate to lack of notice. Apart from the verification, the Counterclaim and Set-off followed the prescribed form, and apprised Tenant of the claims against him for back rent and damages in advance of trial. Tenant's argument that he did not have sufficient notice of the issues on which he would be required to present evidence is unpersuasive. The Court finds the trial court did not err in awarding judgment to Landlord on its counterclaim.
The record also reflects that Tenant was supplied an itemized statement of damages and past-due rent in November 2019, two months before trial. --------
CONCLUSION
¶17 For the reasons set forth above, the Court affirms the trial court's January 16, 2020 Journal Entry of Judgment in favor of Landlord on its counterclaim.
¶18 AFFIRMED.
FISCHER, V.C.J., and RAPP, J., concur.