White v. Wensauer

White v. Wensauer
1985 OK 26
702 P.2d 15
56 OBJ 858
Case Number: 62835
Decided: 04/09/1985
Supreme Court of Oklahoma

 
STEVEN A. WHITE AND STEVE WHITE, ONE AND THE SAME PERSON, PETITIONER,
v.
BRENT WENSAUER AND D. BRENT WENSAUER, ONE AND THE SAME PERSON; THE HONORABLE LEAMON FREEMAN, JUDGE OF THE DISTRICT COURT FOR THE SEVENTH JUDICIAL DISTRICT, RESPONDENTS.

Original Proceeding for a prerogative writ.

¶0 A party-defendant, sought to be cast below in the status of seller of a condominium complex, invokes original cognizance for extraordinary relief from the respondent-judge's decision refusing to consider his application for an order discharging the premises from lis pendens notice. Jurisdiction assumed.

WRIT GRANTED.

William F. Collins, III, Anne Moore, Messrs. McClelland, Collins, Bailey, Bailey & Manchester, Oklahoma City, for petitioner.

Robert R. Robles, Oklahoma City, for respondents.

OPALA, Justice.

[702 P.2d 16]

¶1 The narrow first-impression question presented in this original proceeding is whether, in the absence of express statutory authority, a court sitting in equity may effect a discharge of lis pendens notice based on compelling equitable considerations. We answer in the affirmative.

¶2 The underlying litigation was occasioned by a dispute over a contract for the sale of a condominium complex. The seller (petitioner) had notified the buyer (respondent) that his contract was terminated by reason of the buyer's alleged breach. The seller then contracted to sell to third parties seventeen of the thirty-five condominium units. The buyer sued the seller for specific performance and filed notice of lis pendens. The seller answered and counter-claimed for slander of title. The seller then sought a district court order discharging the lis pendens notice because it prevented him from closing any sales of the condominium units and resulted in his being unable to meet the obligation owed to the mortgagee.

¶3 The respondent-judge, after ruling he had no authority to cancel lis pendens notice, certified the question sua sponte for immediate review by this court. Because the issue so certified could not be considered to be "on the merits" of the controversy,

¶4 The seller contends that the Oklahoma lis pendens statute

¶5 At the time the application to lift lis pendens notice was filed and presented the pertinent statute in force was 12 O.S. 1981 §§ 180 and 180.1.

¶6 In some jurisdictions a party adversely affected by lis pendens notice is given a statutory right to seek relief by expungement of notice.

[702 P.2d 18]

¶7 Although the doctrine is frequently cast in statutory form, lis pendens is derived from the norms of common-law and equity jurisprudence.

¶8 Lis pendens is to be viewed as a device by which the courts acquire the power or control over property involved in a suit for the period during which the action remains pending and before final judgment is rendered.

¶9 Because the doctrine of lis pendens is derived from the notions of common-law and equity jurisprudence, rather than from statute, it is subject to equitable principles.

¶10 Because Oklahoma's statutory scheme does not expressly provide the legal norms that govern in a proceeding to discharge notice of lis pendens, we hold that the trial court must balance the equities to determine whether, in a particular case, the application of the doctrine is harsh or arbitrary and whether the cancellation of lis pendens would result in prejudice to the nonpetitioning party.

¶11 Writ granted; the respondent-judge is directed to entertain the seller's application for an order discharging notice of lis pendens and to afford the relief sought only if compelling equitable considerations are found to be present.

¶12 DOOLIN, V.C.J., and HODGES, LAVENDER, WILSON, KAUGER and SUMMERS, JJ., concur.

¶13 HARGRAVE, J., concurs in result.

¶14 SIMMS, C.J., concurs in part and dissents in part.

Footnotes:

1 In his application for an order to discharge lis pendens notice the seller stated that the proceeds from the sale of the units would be applied to the bank note. This was no doubt intended to forestall the loss of the remaining units by a mortgage foreclosure suit.

2 12 O.S. 1981 § 952 (b)(3) provides:

"* * * (b) The Supreme Court may reverse, vacate or modify any of the following orders of the district court, or a judge thereof:

* * * * * *

3. Any other order, which affects a substantial part of the merits of the controversy when the trial judge certifies that an immediate appeal may materially advance the ultimate termination of the litigation; provided, however, that the Supreme Court, in its discretion, may refuse to hear the appeal. * * *" [emphasis added] See also Rules 1.50 et seq., Rules on Perfecting a Civil Appeal, 12 O.S. 1981, Ch. 15, App. 2. For a definition of "merits" see Flick v. Crouch, Okl., 434 P.2d 256, 261 [1967]; see also, Young v. Oklahoma City, Okl., 524 P.2d 22, 23 [1974], and Community National Bank of Warr Acres v. Beasler, Okl., 520 P.2d 813, 814 [1974].

3 For the statute that was in force when this contest arose, see footnote 4. 12 O.S. 1981 §§ 180 and 180.1 . For the present version, 12 O.S.Supp. 1984 § 2004 (P)(1) and (2), see footnote 5.

4 The terms of 12 O.S. 1981 § 180 provided:

"When the petition has been filed, the action is pending, so as to charge third persons with notice of its pendency, and while pending no interest can be acquired by third persons in the subject matter thereof as against the plaintiff's title; but such notice shall be of no avail unless the summons be served or the first publication made within sixty (60) days after the filing of the petition. If real property is involved, notice shall be filed as provided in Section 180.1 of this title."

The terms of 12 O.S. 1981 § 180.1 were:

"No action pending in either state or federal courts shall constitute notice with respect to any real property until such time as a notice of the filing of such action, identifying the case and the court in which it is pending, and giving the legal description of the land affected by the action, is filed in the office of the county clerk where said land is situated."

5 Sections 180 and 180.1 were repealed by Okl. Sess.Laws 1984, c. 164, § 32, effective November 1, 1984. The present version, 12 O.S.Supp. 1984 § 2004 (P)(1) and (2) provides:

"P. NOTICE OF PENDENCY OF ACTION.

Upon the filing of a petition, the action is pending so as to charge third persons with notice of its pendency. While an action is pending, no third person shall acquire an interest in the subject matter of the suit as against the plaintiff's title; except that:

1. Notice of the pendency of an action shall have no effect unless service of process is made upon the defendant within one hundred twenty (120) days after the filing of the petition; and

2. No action pending in either state or federal court shall constitute notice with respect to any real property until a notice of pendency of the action, identifying the case and the court in which it is pending and giving the legal description of the land affected by the action, is filed of record in the office of the county clerk where the land is situated."

6 Peery v. Superior Court of Santa Clara County, 29 Cal. 3d 837, 176 Cal. Rptr. 533, 536, 633 P.2d 198, 201 [1981].

7 Ravitch v. Stollman Poultry Farms, Inc., 162 Conn. 26, 291 A.2d 213, 217 [1971]. The Connecticut court later held that when there is no statutory provision in lis pendens law which affords the property owner, whose property becomes subject to lis pendens, the opportunity to be heard at a meaningful time and in a meaningful manner, the property owner is deprived of his constitutional right to due process. Kukanskis v. Griffith, 180 Conn. 501, 430 A.2d 21, 25 [1980].

8 Kelly v. Perry, 111 Ariz. 382, 531 P.2d 139, 140-141 [1975].

9 Kelly v. Perry, supra note 8, 531 P.2d at 141; Rosen v. Rittenhouse Towers, 334 Pa.Super. 124, 482 A.2d 1113, 1116 [1984].

10 Kelly v. Perry, supra note 8, 531 P.2d at 140; Dice v. Bender, 383 Pa. 94, 117 A.2d 725, 727 [1955]; McCahill v. Roberts, 421 Pa. 233, 219 A.2d 306, 308 [1966].

11 Kelly v. Perry, supra note 8, 531 P.2d at 140.

12 Kelly v. Perry, supra note 8; see also Pomeroy, Treatise on Equity Jurisprudence § 639, p. 768 [5th ed. 1941]; Freeman, A Treatise on the Law of Judgments § 521, p. 1119 [5th ed. 1925].

13 United Supply & Mfg. Co. v. Cornelison Engine Maintenance Co., Okl., 386 P.2d 776, 779 [1963]; Hart v. Pharoah, Okl., 359 P.2d 1074, 1079 [1961]; see also Dorsch v. Jenkins, 243 Pa.Super. 300, 365 A.2d 861, 863 [1976]; McCahill v. Roberts, supra note 10, 219 A.2d at 308.

14 McCahill v. Roberts, supra note 10, 219 A.2d at 309; Dice v. Bender, supra note 10, 117 A.2d at 727.

15 Dice v. Bender, supra note 10, 117 A.2d at 727; Kelly v. Perry, supra note 8, 531 P.2d at 141.

16 Dice v. Bender, supra note 10, 117 A.2d at 727; Rosen v. Rittenhouse Towers, supra note 9, 482 A.2d at 1116.

17 Easterling v. Ferris, Okl., 651 P.2d 677, 680 [1982].

18 McCahill v. Roberts, supra note 10, 219 A.2d at 309; Rosen v. Rittenhouse Towers, supra note 9, 482 A.2d at 1116.

19 McCahill v. Roberts, supra note 10, 219 A.2d at 309.

20 During the pendency of this proceeding judgment was rendered for the seller which denies the buyer's quest for specific performance. The trial court's decree does not render this controversy moot. The buyer has lodged an appeal and has renewed the lis pendens notice. These post-decree developments were properly tendered for our consideration as facts affecting this court's jurisdiction. City of Tulsa v. Chamblee, 188 Okl. 94, 106 P.2d 796, 798 [1940]; Lawrence v. Cleveland County Home Loan Authority, Okl., 626 P.2d 314, 315 [1981]. See Rule 7, Rules of the Supreme Court, 12 O.S. 1981, Ch. 15, App. 1.