Eckel v. Adair

Eckel v. Adair
1984 OK 86
698 P.2d 921
Case Number: 59201
Decided: 11/27/1984
Supreme Court of Oklahoma

JIM ECKEL, PAUL E. LEWIS AND LINDSEY E. LEWIS, HUSBAND AND WIFE, HAROLD LIDDELL AND PATRICIA KAY NEWTON, FOR THEMSELVES AND FOR ALL OTHERS SIMILARLY SITUATED CONSTITUTING A CLASS CALLED THE "KENNEDY NEIGHBORHOOD", APPELLANTS,
v.
JAMES R. ADAIR, R.E. BARBOUR, J.H. PATTEN, COLONIAL ESTATES, INC., A CORPORATION, MASTERCRAFT HOUSING SYSTEMS, INC., A CORPORATION, SECURITY NATIONAL BANK AND TRUST COMPANY, A CORPORATION, SECURITY NATIONAL BANK AND TRUST COMPANY OF NORMAN, OKLAHOMA, TRUSTEE, DAVID C. MEYER, ONEOK, OKLAHOMA GAS AND ELECTRIC COMPANY, SOUTHWESTERN BELL TELEPHONE COMPANY, AND THE CITY OF NORMAN, OKLAHOMA, APPELLEES.

Certiorari to the Court of Appeals, Div. 3.

¶0 In a class action by property owners and residents against the land developer of their subdivision and other persons (a) to declare invalid certain plat vacation proceedings; (b) to impose a constructive trust upon land dedicated in the plat for recreational purposes and (c) to enjoin the use of the dedicated land for any other purpose, the District Court, Cleveland County, Preston Trimble, Judge, rendered judgment on demurrers interposed by two of the parties-defendant for failure to state a cause of action. The Court of Appeals affirmed the trial court's judgment. Certiorari was granted.

THE COURT OF APPEALS OPINION IS VACATED AND THE TRIAL COURT'S JUDGMENT AFFIRMED.

Terry Guy Shipley, Noble, Charles Nesbitt, Oklahoma City, for appellants.

David A. Poarch, Pyle & Poarch, Norman, for appellee Mastercraft Housing Systems, Inc.

Warren K. Miller, Miller & Naifeh, Norman, for appellee David C. Meyer.

MEMORANDUM OPINION

OPALA, Justice.

[698 P.2d 922]

¶1 (1) The issue to be dealt with on certiorari is whether the Court of Appeals' affirmance of the trial court's judgment on the defendants' demurrers to the petition is legally incorrect? We answer in the negative because we find that the case stands here in a fatally defective posture.

¶2 (2) The plaintiffs/appellants brought a class action

¶3 (3) The appellants [referred to herein as Owners] are property owners and residents in an area known as the "Kennedy Neighborhood". They sought, among other things, to declare invalid certain plat vacation proceedings affecting two tracts of land. They alleged the land developer had made a commitment to set aside these tracts for common open spaces and recreational purposes for the use of the property owners

¶4 (4) On review of a judgment that sustains a demurrer to the petition an appellate court must take as true all of the challenged pleading's allegations together with all reasonable inferences which may be drawn from them.

¶5 The owners' claim against Mastercraft and Meyer rests upon (a) the defendants' knowledge of the invalidity of the vacation proceedings as shown on the face of the judgment rolls and (b) the defendants' knowledge of the prior dedication of the land as reflected by the recorded plats. The plats and the critical judgment rolls were before the district court because (a) the district court could take judicial notice of the vacation proceedings conducted in that forum

¶6 Neither the critical judgment rolls nor the recorded plats were incorporated into the record on appeal in this case. An appellate court can only take judicial notice of the record that is before it.

¶7 Error may not be presumed from a silent record. It must be affirmatively demonstrated.

¶8 (5) The owners' suggestion of mootness, because of facts occurring during the pendency of this appeal, is ineffective and cannot be considered.

¶9 (6) This court will not consider as part of the appellate record any written or printed instrument that was not properly included in it.

¶10 Opinion of the Court of Appeals vacated and trial court's judgment affirmed.

¶11 All Justices concur.

Footnotes:

1 We do not address the issue whether this was a proper class action. The record does not reflect that the plaintiffs moved for an order certifying the case as a class action or that any order was made under the provisions of 12 O.S. 1981 § 14 . The appellate court did not deal with the certification question.

2 The dedication was allegedly required by the Norman Planning Commission as a condition to rezoning the Kennedy Neighborhood for the construction of multi-family dwelling units. The owners alleged that the developer [Colonial Estates, Inc.] represented to buyers of lots and tracts that the dedicated land would be available for recreational use by the residents.

3 Keel v. Titan Const. Corp., Okl., 639 P.2d 1228, 1229 [1982]; Chastain v. Parkhurst, Okl., 473 P.2d 239, 240 [1970].

4 Southern Surety Co. v. Chambers, 72 Okl. 307, 180 P. 711, 712 [1919]; Wright v. State, 104 Okl. 57, 230 P. 268, 269-270 [1924]; Turner v. Sooner Oil and Gas Co., 206 Okl. 344, 243 P.2d 701, 704 [1952].

5 Chitwood v. Skiles Oil Corp., Okl., 309 P.2d 1061, 1063 [1957].

6 Williams v. Phillips Petroleum Co., Okl., 406 P.2d 474, 477 [1965]; Schnelle v. McClure, Okl., 330 P.2d 598, 599 [1958].

7 Sooner Federal Savings and Loan Association v. Mobley, Okl., 645 P.2d 1000, 1004 [1982]; Corliss v. Davidson & Case Lumber Co., 183 Okl. 618, 84 P.2d 7, 10 [1938]; Morgan v. Whitehead, 196 Okl. 402, 165 P.2d 338, 341 [1946].

8 The incorporation by reference is authorized by 12 O.S. 1981 § 305.1 which provides:

"From and after the passage of this act in all civil cases whereby it is necessary to incorporate, in the pleadings, facts concerning instruments of record affecting real estate, that such incorporation may be made by reference to the date of such instrument, and the book and page number where recorded in lieu of affixing a copy of the same to such pleadings."

This statute was not affected by passage of the new Pleading Code (12 O.S.Supp. 1984 §§ 2001 et seq.) effective November 1, 1984, Okla.Sess.L. 1984, ch. 164, pp. 588-628.

9 The proper procedure to be followed in preparing an appellate record when incorporation by reference was used in the text of any pleading designated for inclusion is to tender the incorporated material to the trial court by application to supplement the record on appeal and to secure, upon notice to the opposite party and hearing, an order allowing leave to add the incorporated material to the appellate record. See Greer v. West, 173 Okl. 427, 48 P.2d 1043 [1935] (syllabus 2); Empire Oil & Refining Co. v. Fields, 188 Okl. 666, 112 P.2d 395, 406 [1941], appeal dismissed 314 U.S. 572, 62 S. Ct. 79, 86 L. Ed. 463 and State ex rel. Dept. of Highways v. Lehman, Okl., 462 P.2d 649, 650 [1969]. If the application for inclusion is met with adverse disposition, review of the ruling may be sought in this court upon motion of the aggrieved party. McCullough v. Safeway Stores, Inc., Okl., 626 P.2d 1332, 1334 [1981].

10 Sooner Federal Savings and Loan Association v. Mobley, supra note 7 at 1004.

11 The law recognizes two different kinds of land dedications for public use and benefit. These are called statutory and common-law dedications. Statutory dedications are governed by 11 O.S. 1981 §§ 41-101 et seq. If the statutory requirements are not met, there may still exist an effective common-law dedication. The latter dedication may occur when the committed land is accepted by the public or when rights are acquired under it by third persons. Kee v. Satterfield, 46 Okl. 660, 149 P. 243, 247 [1915].

12 Hamid v. Sew Original, Okl., 645 P.2d 496, 497 [1982].

13 The essential elements of a bona-fide-purchaser-of-land status are (a) payment of consideration, (b) good faith, (c) absence of purpose to take unfair advantage of third parties and (d) absence of actual or constructive notice of outstanding rights of others. Luschen v. Stanton, 192 Okl. 454, 137 P.2d 567, 569 [1943]; Jonas v. Dunn, 132 Okl. 204, 270 P. 46, 51 [1928]; Cleary Petroleum Co. v. Harrison, Okl., 621 P.2d 528, 531 [1980].

14 City of Tulsa v. Chamblee, 188 Okl. 94, 106 P.2d 796, 798 [1940]; Edwards v. Hanna Lumber Co., Okl., 415 P.2d 980, 981 [1966]; Lawrence v. Cleveland County Home Loan Authority, Okl., 626 P.2d 314, 315 [1981].

15 Lawrence v. Cleveland County Home Loan Authority, supra note 14 at 315.

16 State ex rel. Dept. of Highways v. Lehman, supra note 9 at 650.

17 In re Hess' Estate, Okl., 379 P.2d 851, 859 [1963]. The Supreme Court is without authority to supply, by decision, a deficiency in the record on appeal. Owens v. Luckett, 192 Okl. 685, 139 P.2d 806, 807 [1943].

18 In re Hess' Estate, supra note 17 at 859.