Chickasaw Telephone Co. v. Drabek

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Chickasaw Telephone Co. v. Drabek
1996 OK 76
921 P.2d 333
67 OBJ 2232
Case Number: 83683
Decided: 07/09/1996
Supreme Court of Oklahoma

CHICKASAW TELEPHONE COMPANY, Appellee, v. V.J. DRABEK, Appellant

[921 P.2d 334]
On Certiorari to the Court of Appeals, Div. 1.

¶0 Chickasaw Telephone Company [company] sought the district court's (a) construction of a pipeline easement and (b) an order restraining an individual [Drabek] from impeding its work in laying a fiber optic telephone cable. Drabek, who along with J.E. DePlanche (his wife) was temporarily enjoined from interfering with company's rights in the easement, appealed. The Court of Appeals affirmed the nisi prius decision. On Drabek's petition, certiorari was previously granted,

THE COURT OF APPEALS' OPINION IS VACATED; THE DECISION OF THE DISTRICT COURT IS REVERSED IN PART AND AFFIRMED IN PART; AND THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH TODAY'S PRONOUNCEMENT.

Robert H. Warren, Robert H. Warren & Associates, Oklahoma City, for appellant.

Fob F. Jones, Sulphur, for appellee.

OPALA, Justice.

¶1 Our answer to a single question is dispositive of this appeal. When issuing its temporary injunction,

I

THE ANATOMY OF LITIGATION

¶2 Company sought to install a fiber optic telephone cable in a pipeline easement [921 P.2d 335] which crosses land that may be owned either (a) by Drabek and DePlanche, husband and wife, or (b) solely by the latter (DePlanche). While company concedes DePlanche owns some interest in the dominant estate,

¶3 Drabek tried to impede the cable's installation. Company petitioned the district court (a) to determine the breadth of its easement and (b) to enjoin Drabek from any further interference. At the hearing on temporary injunction Drabek argued that since DePlanche holds an interest in the land, she "should" be made a party to the suit.

¶4 The nisi prius court - following a hearing - issued a temporary injunction which implicitly rests on the conclusions that (1) company holds an effective easement and (2) installation of a fiber optic telephone cable lies within the easement's scope as well as specifically provides that (3) both Drabek and DePlanche are enjoined from interfering with company's use of its servient estate. Only Drabek appealed from the nisi prius ruling. The Court of Appeals affirmed the trial court's decision. We granted certiorari sought by Drabek.

II

IF (AS DRABEK CLAIMS) DePLANCHE OWNS THE DOMINANT ESTATE IN THE REAL PROPERTY BURDENED BY THE EASEMENT IN ISSUE, SHE IS A NECESSARY PARTY DEFENDANT IN COMPANY'S SUIT TO DECLARE THE EASEMENT'S VALIDITY AND ITS BREADTH

¶5 When crafting equitable relief, the trial judge may not ignore the law's clear command. Equity follows the law.

[921 P.2d 336]
III

THERE IS NO PAPER TRAIL THAT DePLANCHE VOLUNTARILY ENTERED HER APPEARANCE EITHER IN PERSON OR BY COUNSEL OR EVER APPOINTED DRABEK AS HER AGENT (OR ATTORNEY IN FACT) TO DEFEND AGAINST COMPANY'S SUIT

A

¶6 The record does not demonstrate either that (a) DePlanche was served with process or (b) either she, or some counsel on her behalf, entered her voluntary appearance in the case. The transcript (of the nisi prius hearing on the application for temporary injunction) shows that both Drabek and company's counsel agreed, as did the trial judge, that DePlanche "should" be made a party to the suit as the alleged holder of the fee in the affected land.

B

¶7 There is no record proof that DePlanche ever appointed either Warren (Drabek's counsel of record) as her lawyer or Drabek as her agent (or attorney in fact) for purposes of defending against company's suit. Courts have recognized that the attorney-client status is governed by general rules of agency.11 If there had been some minimal record indicium of an attorney-client relationship between DePlanche and Warren, the trial court could have presumed that the latter was authorized to enter DePlanche's appearance.12 The record contains no statement from Warren by which he professes to represent DePlanche.13 When this court asked on certiorari who had brought the appeal in this cause, both Warren and company's lawyer identified only Drabek as the party appellant herein.14

¶8 Drabek contends (sans proof) that he is DePlanche's agent because he (a) is her husband, (b) once owned the property in question and (c) is familiar with the history of the easement whose terms are sought to be construed. Again, there are no sworn statements by Drabek

IV

SUMMARY

¶9 If a proceeding is likely to affect adversely someone's interest, that person is a necessary party defendant in the suit. Although both company and Drabek would have us gloss over a fatal due process defect, we must hold that the trial court did not have in personam jurisdiction over DePlanche who, if Drabek is correct, owns the dominant estate in contest.

¶10 The interlocutory order is affirmed only insofar as it enjoins any further interference with the company's claimed interest in its easement by Drabek - a self-declared stranger to the dominant estate who offered no proof of his status as co-owner or as DePlanche's agent (or attorney in fact).

¶11 If DePlanche indeed owns an interest in the land burdened by the easement to be construed, she must be made a party defendant to the suit. On certiorari previously granted,

¶12 THE COURT OF APPEALS' OPINION IS VACATED; THE DECISION OF THE DISTRICT COURT IS REVERSED IN PART AND AFFIRMED IN PART; AND THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH TODAY'S PRONOUNCEMENT.

¶13 ALMA WILSON, C.J., KAUGER, V.C.J., and LAVENDER, OPALA, and WATT, JJ., concur;

¶14 SIMMS and HARGRAVE, JJ., concur in part and dissent in part;

¶15 HODGES and SUMMERS, JJ., dissent.

Footnotes:

1 An interlocutory injunction is appealable under the provisions of 12 O.S.Supp. 1993 § 993 .

2 The materials included in the judgment roll are listed in 12 O.S. 1991 § 32.1 . The pertinent terms of § 32.1 are:

"The record shall be made up from the petition, the process, return, the pleadings subsequent thereto, reports, verdicts, orders, judgments, and all material acts and proceedings of the court. . . . Evidence must not be recorded."

The term "record" or "record proper" is synonymous with "common-law record" and "judgment roll." Rodgers v. Higgins, Okl., 871 P.2d 398, 405 (1993).

3 See company's supplemental brief, p. 2, for reference to its representation (sans record proof) that Drabek holds a one-half interest in the lands burdened by the easement in question.

4 Tr. transcript, p. 18.

5 Tr. transcript, p. 18.

6 Both company and Drabek concede (in their supplemental briefs in this court) that Drabek is the sole appellant herein.

7 "Where the rights of parties to an action are clearly defined and established by law, equity has no power to change or unsettle such rights. The maxims of equity may be invoked to protect an existing right, but are unavailable to create a right where none exist. Equity follows the law." Phelan v. Roberts, 182 Okl. 202, 77 P.2d 9, 12 (1938).

See also In re Estate of Redwine, Okl., 445 P.2d 275, 278 (1968); Cantrell v. Marshall, 200 Okl. 573, 197 P.2d 990, 994 (1947); Sheldon v. Deal, 196 Okl. 531, 166 P.2d 771, 774 (1946).

8 Taylor v. Kirk, 201 Okl. 111, 202 P.2d 420, 422 (1949).

9 See trial transcript, p. 18.

10 See 5 O.S. 1991 § 5 , whose pertinent terms are:

"The court may, . . . on the showing of reasonable grounds therefor, require the attorney . . . for any one of the adverse parties, to produce or prove by his oath, or otherwise, the authority under which he appears. . . ."

11 See Moran v. Loeffler-Greene Supply Company, Okl., 316 P.2d 132, 137 (1957); Westinghouse Elec. Corp. v. Kerr-McGee Corp., 580 F.2d 1311 1316 (7th Cir. 1978); Nolan, supra note 12 at 1129. See also L. RAY PATTERSON. LEGAL ETHICS. THE LAW OF PROFESSIONAL LIABILITY § 2.01 (1982).

12 When counsel enters an appearance for someone in an action, it is presumed that the lawyer is authorized to so act. See the pertinent terms of 5 O.S. 1991 § 5 , supra note 10. Cummins v. Chandler, 186 Okl. 200, 97 P.2d 765, 766 (1939) (the court's syllabus § 1); Nolan v. St. Louis & S.F.R. Co., 19 Okl. 51, 91 P. 1128 (1907).

13 Warren stated before the trial court that "[T]hey sued Mr. Drabek only. He is the husband of Mrs. DePlanche, she sits here." [Tr. transcript, p. 18] His statement cannot be imputed to DePlanche and made binding upon her in the absence of proof that he was then and there speaking as her lawyer. Any nisi prius ruling that Warren or Drabek is DePlanche's agent must be rested either on evidence or on stipulated facts, and not on the unsworn statements of a forensic advocate for another person. See State ex rel. Okl. Bar Ass'n v. Lacoste, Okl., 813 P.2d 501, 506 (1991) (Opala, J., dissenting).

14 See Drabek's supplemental brief, p. 2, and company's supplemental brief, p. 4.

15 The existence of a pretended agent's authority cannot be established by the agent's statements alone. Jones v. World Publishing Company, Okl. 512 P.2d 124, 126 (1973); Norton v. Harmon, 192 Okl. 36, 133 P.2d 206, 210 (1942); Love v. Williams, 169 Okl. 621, 37 P.2d 944, 945 (1934) (the court's syllabus § 1); Winnebago State Bank v. Hall, 127 Okl. 215, 260 P. 497, 499 (1927). See also Bird v. Insurance Store, Inc., 572 So. 2d 394, 397 (Ala. 1990); Western Fertilizer and Cordage Co., Inc. v. BRG, Inc., 228 Neb. 776, 424 N.W.2d 588, 594 (1988).

16 It is this court's duty to inquire sua sponte not only into its own jurisdiction but also into the cognizance of the court whence the case came by appeal or on certiorari. Lincoln Bank and Trust v. Tax Com'n, Okl., 827 P.2d 1314, 1318 n. 14 (1992); Fields v. A & B Electronics Okl. 788 P.2d 940, 941 (1990); Hall v. Edge Okl. 782 P.2d 122, 124 (1989); Baylis v. City of Tulsa Okl., 780 P.2d 686, 688 (1989); April v. City of Broken Arrow, Okl., 775 P.2d 1347, 1355 (1989); Snyder v. Smith Welding & Fabrication, Okl., 746 P.2d 168, 171 (1986); Luster v. Bank of Chelsea, Okl., 730 P.2d 506, 508 (1986); Matter of Initiative Petition Filed Nov. 15, 1983, Okl., 718 P.2d 1353, 1354 (1986); Cate v. Archon, Okl., 695 P.2d 1352, 1356 n. 12 (1985); Spain v. Kernell, Okl., 672 P.2d 1162, 1164-1165 (1983); Woods Petroleum Corp. v. Sledge, Okl., 632 P.2d 393, 394 (1981); Pointer v. Hill, Okl., 536 P.2d 358, 361 (1975); Hayhurst v. Hayhurst, Okl., 421 P.2d 257, 260 (1966); Mid-Continent Pipe Line Co. v. Wilkerson, 200 Okl. 335, 193 P.2d 586, 588 (1948); Harber v. McKeown, 195 Okl. 290, 157 P.2d 753, 754 (1945); Bryan v. Seiffert, 185 Okl. 496, 94 P.2d 526, 531-532 (1939).

17 A case is said to be coram non judice when the court in which it is brought has no jurisdiction to settle the dispute. BLACK'S LAW DICTIONARY at 305 (5th ed. 1979). See Goldman v. Goldman Okl., 883 P.2d 164, 166 (1994); Board of Law Library Trustees v. State, Okl., 825 P.2d 12851212 1291 (1991); Kernell, supra note 16 at 1164-1165; Seiffert, supra note 16 at 531-532 (the court's syllabus § 6).

SUMMERS, Justice, with whom HODGES, Justice, joins, dissenting.

I would deny certiorari.