KAIL v. KNUDESON

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KAIL v. KNUDESON

2014 OK CIV APP 28

Case Number: 110284

Decided: 02/21/2014

Mandate Issued: 03/26/2014

DIVISION III

THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION III

Cite as: 2014 OK CIV APP 28 , __ P.3d __

MARTHA ALICE OVERSTREET KAIL,

Plaintiff/Appellant,

v.

KATHLEEN DUNNAM KNUDESON, Individually and

KATHLEEN KNUDESON, ANNE TERRY, KIM G. KNUDESON, TRUSTEES OF THE KATHLEEN

KNUDESON TRUST DATED NOVEMBER 2, 2009, Defendants/Third Party

Plaintiffs/Appellees,

and

Maudress Elaine Overstreet, Mary J. Bell, Thomas

G. Overstreet, Elizabeth Overstreet, Charles A. Overstreet, John Thomas

Overstreet, Russell Overstreet, Mary Russell, Dora Littlefield, Minnie Rabon,

Lela Fort, Maggie Mae Overstreet, Dayton Overstreet, Geneva Overstreet, Sengal

Overstreet, Victor Overstreet and Ruby Belle Overstreet, Third Party

Defendants.

APPEAL FROM THE DISTRICT COURT OF

LeFLORE COUNTY,

OKLAHOMA

HONORABLE JONATHAN K. SULLIVAN, JUDGE

AFFIRMED

Chris W. Blankenship, A.J. Garcia, BLANKENSHIP LAW FIRM, P.C., Stigler,

Oklahoma, for Plaintiff/Appellant,

Dean E. Warren, HAMILTON, WARREN &

BOVOS, Poteau, Oklahoma, for Defendant/Appellee Kathleen Dunnam

Knudeson.

ROBERT D. BELL, PRESIDING JUDGE:

¶1 Plaintiff/Appellant, Martha Alice Overstreet Kail, appeals from the trial

court's judgment (1) denying Plaintiff's petition to set aside or reform a deed

and (2) quieting title to the subject real property in Plaintiff and the Third

Party Plaintiffs as tenants in common. For the reasons set forth below, we

affirm.

¶2 Plaintiff, who resides in New Hampshire, is the daughter of Geneva

Overstreet. Defendant/Appellee, Kathleen Dunnam Knudeson, is Overstreet's niece

and Plaintiff's cousin. Defendant is a resident of Oregon. On May 4, 2001,

Overstreet caused to be drafted a Warranty Deed regarding the Subject Property,

an eighty (80) acre parcel of land Overstreet owned in LeFlore County. The deed

conveyed the real property to Plaintiff and Defendant "as joint tenants with

right of survivorship and not as tenants in common . . . ." The deed also

contained a clause stating:

IT IS THE INTENTION of all the parties of this deed that title shall vest

in the grantees as joint tenants, so that on the death of one of them the

survivor will take the whole estate herein

conveyed.

The deed was drafted by an employee of the LeFlore County Clerk's Office and

was executed by Overstreet in Plaintiff's presence. The deed was filed of record

in the Clerk's Office the same day, May 4, 2001, and delivered to Plaintiff.

Overstreet died later that year. Defendant did not become aware of the deed

until 2005. The record also discloses Overstreet executed a second deed on May

4, 2001, transferring title to another parcel of property to herself and

Plaintiff as joint tenants.

¶3 On August 13, 2009, Defendant deeded her interest in the Subject Property

to her daughter, Priscilla Ann Terry. The following day, Terry and her husband

deeded the Subject Property back to Defendant. On November 2, 2009, Defendant

deeded the Subject Property to herself and her two children, Third Party

Plaintiffs Ann Terry and Kim G. Knudeson, as Trustees of the Kathleen Knudeson

Trust Dated November 2, 2009. All three deeds were filed of record in the

LeFlore County Clerk's Office.

¶4 On May 20, 2010, Plaintiff filed the instant action to set aside or reform

the 2001 Warranty Deed. Plaintiff's petition claimed, among other things, that

Defendant unduly influenced Overstreet to obtain an interest in the Subject

Property. Alternatively, Plaintiff asked that the deed be reformed to reflect

the true intent of Overstreet, which Plaintiff claimed was to create a joint

tenancy that Defendant could not break. Third Party Plaintiffs moved, and were

granted permission, to intervene and bring a quiet title action against various

Third Party Defendants who might claim an interest in the Subject Property.

Specifically, Third Party Plaintiffs asserted they are one-half owners with

Plaintiff as tenants in common. Defendant also moved to dismiss Plaintiff's

petition on limitations grounds. Plaintiff responded that title should be

quieted in her alone and that the five-year statute of limitations was tolled

until Defendant severed the joint tenancy in 2009. Plaintiff's filings also

intimated Overstreet suffered from diminished capacity when she executed the

Subject Property deed.

¶5 Because of Defendant's declining health, defense counsel sought permission

from the trial court to take Defendant's deposition by telephone and to submit

her deposition in lieu of live testimony at trial. The defense presented the

trial court a letter from Defendant's doctor advising against her traveling to

Oklahoma for trial. When Plaintiff objected, the trial court granted Plaintiff

the opportunity to obtain an independent medical examination of Defendant to

determine if she was healthy enough to travel to Oklahoma. Plaintiff failed to

make such arrangements. The trial court then entered an order allowing telephone

depositions of Defendant in Oregon and Plaintiff in New Hampshire. Both

depositions were admitted at trial; Defendant's deposition over Plaintiff's

objection. The trial also consisted of documentary evidence and live testimony

from Plaintiff and the LeFlore County Clerk employee who prepared and notarized

the Subject Property deed.

¶6 Among other things, Plaintiff testified she attempted to dissuade

Overstreet from deeding the Subject Property to Defendant and suggested instead

that Overstreet give Defendant some money. Plaintiff testified her mother

insisted, "I should deed [Defendant] something." However, Plaintiff maintained

Overstreet never wanted the joint tenancy to be broken and did not want

Defendant's children to inherit the Subject Property. Plaintiff testified she

drove Overstreet to the LeFlore County Clerk's Office on May 4, 2001, witnessed

Overstreet execute and file the deed, and obtained a copy of the deed for

herself. Her testimony also confirmed Defendant was in Oregon at that time.

¶7 By deposition, Defendant testified she had visited Overstreet in late

April 2001, but exerted no influence on her regarding the Subject Property.

Defendant also testified she and Overstreet maintained a very close relationship

her entire life. Countering Plaintiff's allegations, Defendant claimed her aunt

did not want Plaintiff's husband to inherit the Subject Property. She also

asserted Plaintiff relented to the creation of a joint tenancy estate because

Plaintiff, who is twelve years younger than Defendant, always assumed she would

outlive Defendant and acquire the whole estate.

¶8 Following trial, the trial court held Plaintiff's petition was barred by

the five-year statute of limitations, 12 O.S. Supp. 2009 §95(12), which

began to run when the deed was filed. The court specifically rejected

Plaintiff's contention that the limitations period was tolled until 2009 when

Defendant severed the joint tenancy. The trial court also held Plaintiff failed

to present clear and convincing evidence that Defendant unduly influenced

Overstreet to execute the deed or that the deed was procured by fraud. The court

quieted title to the Subject Property one-half in Plaintiff and one-half in

Third Party Plaintiffs as tenants in common. Finally, the trial court ordered

the Subject Property partitioned. From said judgment, Plaintiff appeals.

¶9 This Court's standard of review of a trial court's order granting a motion

to dismiss is de novo . Rogers v. Quiktrip Corp. , 2010 OK 3, ¶4 , 230 P.3d 853 . "Under this standard,

we have plenary, independent and nondeferential authority to determine whether

the trial court erred in its legal ruling." Fanning v. Brown , 2004 OK 7, ¶8 , 85 P.3d 841 . An action to reform or

set aside a deed is an equitable one. Cleary Petroleum Corp. v. Harrison ,

1980 OK 188, ¶11 , 621 P.2d 528 . "The traditional

standard of review in equity suits charges this court with the responsibility to

examine the entire record to determine whether the decree is against the clear

weight of the evidence or contrary to law." Id .

¶10 Although identified as nine separate propositions of error, the essence

of Plaintiff's appeal is the trial court erred by (1) permitting Defendant to be

deposed via telephone and admitting such deposition at trial, and (2) dismissing

Plaintiff's petition as time-barred. Regarding the deposition, Plaintiff's

brief-in-chief asserts the Oklahoma Discovery Code does not authorize telephonic

depositions. As Defendant correctly points out in her answer brief, however, 12 O.S. Supp. 2005 §3230(C)(6)

specifically authorizes depositions to "be taken by telephone or other remote

electronic means." The trial court did not err by permitting Defendant (or

Plaintiff) to be deposed by telephone.

¶11 Plaintiff's reply brief then urges the defense failed to show, and the

trial court failed to make a finding, that Defendant was unavailable to testify

before admitting her deposition transcript at trial. Title 12 O.S. Supp. 2002 §2804(B)(1)

permits depositions to be admitted in lieu of testimony at trial "if the

declarant is unavailable as a witness." "Unavailability as a witness" is defined

at §2804(A)(4) as the inability of a witness "to be present or to testify at the

hearing because of death or then existing physical or mental illness or

infirmity; . . ." As previously stated, the defense presented the trial court

with a medical opinion that, due to health reasons, Defendant should not travel

from Oregon to Oklahoma for trial. Plaintiff was given the option of obtaining

an independent medical opinion regarding Defendant's state of health and chose

not to do so. Plaintiff also concedes in her appellate filings that Defendant

did, in fact, "present[] documentation allegedly supporting . . . that [she] is

unable to travel . . . ."

¶12 The judgment under review notes the subject of Defendant's deposition

originally arose in November 2010 and it was later discussed at a pretrial

conference. Plaintiff did not designate for inclusion in the appellate record

any documents or records associated with either of those hearings. "Absent a

record showing otherwise, this court presumes that the trial court did not err."

Hamid v. Sew Original , 1982 OK

46, ¶6 , 645 P.2d 496 . Further,

the admissibility of previous testimony at trial "is at the discretion of the

trial judge." Newton v. State , 1965 OK CR 102, ¶6 , 403 P.2d 913 . We find no abuse of

discretion in the trial court's decision to admit Defendant's deposition

testimony at trial.

¶13 As for Plaintiff's complaint that the trial court erred in failing to

make specific findings of fact regarding admission of the deposition testimony,

the record does not indicate Plaintiff requested the trial court make such

findings. Thus, the trial court was not required to detail its findings in the

judgment. 12 O.S. 2011 §611.

¶14 The five-year statute of limitations at 12 O.S. Supp. 2009 §95(12) "applies

to causes of action to reform a deed on the ground of alleged mistake." Horn

v. Horn , 2007 OK CIV APP

114, ¶5 , 172 P.2d 228 . "If the right to recover is primarily based on fraud

the two-year statute is applicable." Id ., quoting Maloy v. Smith ,

1959 OK 69, ¶24 , 341 P.2d 912 . "The five-year statute

of limitations set forth in subsection 12 applies 'if the right to recover is

based upon inequitable conduct which falls short of fraud.'" Horn at ¶5,

quoting Maloy at ¶24 .

¶15 With respect to alleged fraud or inequitable conduct, the only action

Defendant took in this case was to transfer her interest in the Subject Property

to a trust, thus severing the joint tenancy and creating a tenancy in common.

Such action is perfectly legal. "In the case of two joint tenants, the concept

of joint tenancy with right of survivorship permits each owner to

alienate and hold his share at the same time he 'and the other or others

hold the entire property as by a single ownership.'" In re Estate of

Metz , 2011 OK 26, ¶7 , 256 P.3d 45 , quoting

Shackelton v. Sherrard , 1963

OK 193 , 385 P.2d 898

(emphasis added). Plaintiff presented no evidence of fraud or inequitable

conduct and cites no law prohibiting Defendant's actions.

¶16 The only alleged "mistake" Plaintiff refers to is her (and allegedly her

mother's) mistaken impression that a joint tenancy could never be broken. "[I]n

most instances, ignorance of the law is no excuse, and every person is presumed

to know the law." Estes v. ConocoPhillips Co. , 2008 OK 21, ¶22 , 184 P.3d 518 . Further, Plaintiff's

reliance upon the "intent" clause in the deed is of no avail. Such language is

merely a restatement of the general character of a joint tenancy: absence

severance, the death of one tenant results in the surviving tenant acquiring the

whole estate. Metz , 2011 OK

26 at ¶8 . The clause did not create an unassailable joint tenancy incapable

of being severed.

¶17 The deed at issue was executed and filed of record on May 4, 2001. It is

undisputed Plaintiff had actual knowledge of the deed, as she accompanied her

mother to the Clerk's Office, witnessed her execute and file the deed, and

obtained a copy thereof for herself. Plaintiff has advanced no tenable theory

for tolling the five-year statute of limitations, which expired on May 4, 2006.

Plaintiff's petition, filed on May 20, 2010, was untimely.

¶18 AFFIRMED.

MITCHELL, J., and GOREE, J., concur.

Citationizer © Summary of Documents Citing This Document Cite

Name

Level

None Found.

Citationizer: Table of Authority Cite

Name

Level

Oklahoma Court of Criminal Appeals Cases

Cite Name Level

1965 OK CR 102 , 403 P.2d 913 , NEWTON v. STATE Discussed

Oklahoma Court of Civil Appeals Cases

Cite Name Level

2007 OK CIV APP 114 , 172 P.3d 228 , HORN v. HORN Cited

Oklahoma Supreme Court Cases

Cite Name Level

1959 OK 69 , 341 P.2d 912 , MALOY v. SMITH Discussed

1963 OK 193 , 385 P.2d 898 , SHACKELTON v. SHERRARD Discussed

2004 OK 7 , 85 P.3d 841 , FANNING v. BROWN Discussed

2008 OK 21 , 184 P.3d 518 , ESTES v. CONOCOPHILLIPS CO. Discussed

2010 OK 3 , 230 P.3d 853 , ROGERS v. QUIKTRIP CORP. Discussed

2011 OK 26 , 256 P.3d 45 , IN THE MATTER OF THE ESTATE OF METZ Discussed at Length

1980 OK 188 , 621 P.2d 528 , Cleary Petroleum Corp. v. Harrison Discussed

1982 OK 46 , 645 P.2d 496 , Hamid v. Sew Original Discussed

Title 12. Civil Procedure

Cite Name Level

12 O.S. 95 , Limitation of Other Actions Discussed

12 O.S. 611 , Statement of Findings and Conclusions of Law Cited

12 O.S. 2804 , Hearsay Exception - Declarant Unavailable Cited

12 O.S. 3230 , 12 O.S. 3230 , Depositions Upon Oral Examination Cited