Opinion
Case No. 117,967
04-09-2020
Valerie SHRECK, Plaintiff/Appellee, v. Brent REED, Defendant/Appellant.
Anthony S. Moore, CHRISTENSEN LAW GROUP, P.L.L.C., Clinton, Oklahoma, J. Clay Christensen, Lisa M. Molsbee, Jonathan M. Miles, Brock Z. Pittman, CHRISTENSEN LAW GROUP, P.L.L.C., Oklahoma City, Oklahoma, for Plaintiff/Appellee Ryan A. Meacham, MEACHAM LAW FIRM, Clinton, Oklahoma, for Defendant/Appellant
Anthony S. Moore, CHRISTENSEN LAW GROUP, P.L.L.C., Clinton, Oklahoma, J. Clay Christensen, Lisa M. Molsbee, Jonathan M. Miles, Brock Z. Pittman, CHRISTENSEN LAW GROUP, P.L.L.C., Oklahoma City, Oklahoma, for Plaintiff/Appellee
Ryan A. Meacham, MEACHAM LAW FIRM, Clinton, Oklahoma, for Defendant/Appellant
OPINION BY JANE P. WISEMAN, CHIEF JUDGE:
¶1 Defendant Brent Reed appeals a trial court order granting Plaintiff Valerie Shreck's petition for partition of certain property finding the parties owned equal shares in the land. After review, we conclude that no questions of material fact remain in dispute and the trial court's partition decision was correct as a matter of law. We affirm.
Plaintiff filed a motion to convert this case into an accelerated appeal which the Oklahoma Supreme Court granted. It is assigned to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36, 12 O.S. Supp. 2019, ch. 15, app. 1, and is reviewed without appellate briefing.
FACTS AND PROCEDURAL BACKGROUND
¶2 On May 16, 2018, Plaintiff filed her petition for partition alleging that "Plaintiff and Defendant are the sole owners as tenants in common of, and each of them is exercising control and asserting possession in and to, the following-described real property situated in Blaine County, State of Oklahoma ...:"
SURFACE ONLY IN AND TO:
Lots One (1), Seven (7) and Eight (8) in Section Thirty-Six (36), Township Thirteen (13) North, Range Twelve (12) West of the Indian Meridian, Blaine County, Oklahoma ....
In the petition, Plaintiff claims she and Defendant own "an undivided one-half (1/2) fee simple interest, tenancy in common" and asks the trial court for an order of partition and the appointment of commissioners.
¶3 Defendant in his answer admitted some allegations and denied others. He also counterclaimed alleging he "is the owner, in fee simple, of the real property located in Blaine County" and Plaintiff has no estate or interest in the property. Saying that he has "good and valid title" to the property, Defendant asked that Plaintiff be barred from asserting any claim to the real estate adverse to his title.
¶4 Plaintiff filed a "motion for order determining ownership interests in the subject property" pursuant to 12 O.S.2011 § 1505. She sets out a "statement of uncontested material facts" and argues "Plaintiff and Defendant are the owners of the [s]ubject [p]roperty as tenants in common," and "[t]he right of a cotenant to partition property is absolute and not to be defeated by the mere unwillingness of a party to have property partitioned." Plaintiff asks the trial court to enter "an order specifying the interest of the parties," arguing that although Defendant disputes Plaintiff's ownership, he provides no evidence supporting his position. Plaintiff argues that even if Defendant paid more than "fifty percent (50%) of the ad valorem taxes and mortgage payments owed by Plaintiff's predecessor-in-interest," these payments do not affect title to the property. Plaintiff states such "claims are properly heard in a partition suit after determination of ownership interest and appraisal of the property."
This section states: "After the interests of all the parties shall have been ascertained, the court shall make an order specifying the interests of the respective parties, and directing partition to be made accordingly." 12 O.S.2011 § 1505.
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¶5 In his response, Defendant agrees that the two parties were tenants in common but disputes the allegation that the property is owned in equal proportionate shares. Defendant argues that ownership interest in the tenancy in common shifted as a matter of equity before Plaintiff was deeded the property by Bruce Reed, Defendant's brother.
¶6 Defendant says that when the tenancy in common was created between him and his brother Bruce, his brother "had only paid $35.00 toward the expenses associated with the property." Defendant claims that when the property was conveyed to him and Bruce Reed, he had paid $3,895.42 in expenses. When Plaintiff received the property from Bruce Reed, Bruce had paid only $2,628.45 while Defendant had paid $41,381.12 in taxes, insurance, and mortgage payments. Defendant sets out "additional material facts" arguing "the Quit Claim Deed from Bruce Reed to [P]laintiff, recorded at Book 1319, Page 118, was for zero consideration" and Defendant "paid 94 percent of the expenses associated with the purchase and maintenance of the subject property."
¶7 After considering the submissions of the parties, the court concluded Plaintiff and Defendant were tenants in common owning equal, proportionate shares of the property as stated in the court's order filed March 4, 2019. In its order filed April 11, 2019, the court reiterated these ownership interests, ordered partition, and appointed "Commissioners to make partition of the Property between the owners according to their respective interests" and if partition could not be made between them without great and manifest injury, to "make return of appraisement of the Property."
¶8 The three Commissioners concluded the property could not be partitioned according to the owners' respective interests without manifest injury to the owners. The Commissioners proceeded to appraise the property at $1,950 per acre.
¶9 Defendant appeals.
STANDARD OF REVIEW
¶10 Having been assigned by the Supreme Court to the accelerated docket governed by Supreme Court Rule 1.36, 12 O.S. Supp. 2019, ch. 15, app. 1, this proceeding is subject to the same standard of review as a summary judgment. "The standard for appellate review of a summary judgment is de novo and an appellate court makes an independent and nondeferential review testing the legal sufficiency of the evidential materials used in support and against the motion for summary judgment." Boyle v. ASAP Energy, Inc., 2017 OK 82, ¶ 7, 408 P.3d 183. "Summary judgment will be affirmed only if the [appellate court] determines that there is no dispute as to any material fact and that the moving party is entitled to judgment as a matter of law." Lind v. Barnes Tag Agency, Inc., 2018 OK 35, ¶ 9, 418 P.3d 698. "All inferences and conclusions to be drawn from the materials must be viewed in a light most favorable to the nonmoving party." Id. "Summary judgment is improper when reasonable persons may reach different inferences or conclusions from the undisputed facts." Boyle , 2017 OK 82, ¶ 7, 408 P.3d 183.
ANALYSIS
¶11 Defendant argues the trial court's conclusion that Plaintiff is entitled to 50 percent ownership of the property is inequitable because he has paid 94 percent of the concomitant expenses for maintenance, mortgage and taxes. Plaintiff says, "[Defendant's] contention is that ownership interest is lessened if the other tenant in common expends more in the maintenance of the land." But according to Plaintiff, "Such a contention is not supportable under the law."
¶12 " ‘Where a deed conveys to two or more grantees title to property therein conveyed is vested in such grantees as tenants in common ....’ " Kilgore v. Parrott , 1946 OK 144, ¶ 7, 197 Okla. 77, 168 P.2d 886 (quoting Clinton v. Clinton , 1940 OK 115, ¶ 0, 187 Okla. 144, 101 P.2d 609 (syl. no. 2 by the Court) ). In obtaining a tenancy in common interest, co-tenants receive "a joint interest in [the] property, the only essential element of which is a unity of right of possession." Matthews v. Matthews , 1998 OK 66, ¶ 11, 961 P.2d 831. "One who stands in cotenancy relation to another may not act or claim ‘in derogation of’ the latter's interest." Id. (footnotes omitted). "This means that a cotenant is not allowed to lessen or diminish the value or effect of the other cotenant's right, title, interest, or status in land." Id .
¶13 Under modern practice, partition, which combines " ‘both the equitable and common law remedies, is defined as follows: a division between two or more persons of real ... property which they own as ... tenants in common, effected by the setting apart of such interests so that they may enjoy and possess the same in severalty.’ " Prusa v. Cermak, 1966 OK 89, ¶ 6, 414 P.2d 297 (quoting North v. Coffey , 1948 OK 67, ¶ 8, 200 Okla. 44, 191 P.2d 220 ). In a less periphrastic sense, " ‘Partition is the act or proceeding by which co-owners of property cause it to be divided into as many shares as there are owners, according to their interest therein, or if that cannot be equitably done, to be sold for the best obtainable price and the proceeds distributed.’ " Thomason v. Thompson, 1926 OK 865, ¶ 4, 123 Okla. 218, 253 P. 99 (quoted citation omitted). "The right to partition is absolute and the proceeding is one of equitable cognizance; therefore, equitable principles apply." Dewrell v. Lawrence, 2002 OK CIV APP 105, ¶ 9, 58 P.3d 223 ; see also Chesmore v. Chesmore , 1971 OK 49, ¶ 6, 484 P.2d 516.
¶14 Without dispute, Plaintiff and Defendant own the property as tenants in common. The record shows no change in that shared ownership from the time Plaintiff acquired her interest in the property. Plaintiff included the relevant deeds to the property in her motion for a property interest determination. On the face of these deeds, it is clear a tenancy in common has been maintained since on or before November 19, 1998. Plaintiff relies on the uncontroverted fact that as tenants in common, she and Defendant each own an undivided half-interest in the property. In response, Defendant does not dispute that the deeds convey a half-interest, but he maintains that the tenancy in common interest shifted in his favor because he was responsible for the vast majority of money expended for the property, including the mortgage, maintenance expenses and ad valorem taxes.
¶15 We can see no basis for reversing the trial court's determination of ownership interest. The law of tenancy in common dictates the result reached by the trial court, and no evidentiary support has been presented to lead to a different outcome, or even to present a disputed issue of fact on the question of ownership. Defendant's unequal expenditure of funds in regard to the property does not change the undivided one-half interest each party has in the property as a tenant in common. Despite this being an equitable proceeding, principles of equity do not dictate that an owner may recoup his disproportionate payment of related expenses by overriding the clear language of the deed of conveyance to the parties. If this were the law, much mischief could result, as Plaintiff points out. Recovery of these expenditures must be left for another day and another mechanism.
¶16 Defendant also argues that under the doctrine of owelty, he is entitled to a pecuniary sum to equalize the shares of the parties. See generally, Chesmore , 1971 OK 49, ¶ 4, 484 P.2d 516. "In making divisions along natural and practical lines the allotments cannot always be made of equal area or value, and when an allotment is made to a party which is in excess of his share, the court may require him to pay such excess, which is called owelty, to the other co-tenants." Id. ¶ 6. "It would seem more equitable, in a proper case, to require the payment or receipt of a reasonable sum of money than to require lands to be sold as a whole, where a proportionately small sum is required to equalize the shares." Id. "The object of partition is a division of the property; a sale of the lands is justified only when partition in kind, with or without owelty, is impractical." Id. However, "[t]he general rule of equity requiring the payment of owelty does not give [d]efendants an absolute right to receive a share of the land set off to them in kind and pay owelty to equalize the share awarded to [p]laintiffs." Id. ¶ 7. "It may be the court will conclude that owelty is not practicable." Id.
¶17 Although owelty is available to a court when exercising its equitable powers, the doctrine only applies when the property lends itself to partition in kind and the division by partition requires the payment of money to equalize the shares. See Barth v. Barth , 1995 OK CIV APP 83, ¶¶ 8, 14, 901 P.2d 232. In this case, partition in kind has been found to be unworkable and the land will be subject to sale. Because the doctrine of owelty applies when the property is being partitioned in kind, it is not applicable here.
¶18 Based on the record before us, we find no issue of material fact is in dispute, and the trial court followed the law and properly granted Plaintiff's motion. The trial court's order for partition is affirmed.
CONCLUSION
¶19 As a matter of law, the trial court's order for partition is without error and is affirmed.
¶20 AFFIRMED.
THORNBRUGH, P.J., and FISCHER, J. (sitting by designation), concur.