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2005 OK 13
109 P.3d 345
Case Number: 99217
Decided: 03/08/2005


MARGIE CASEY, Defendant/Appellant,



¶0 This quiet title action stems from a dispute over joint tenancy property, in which the surviving spouse of a deceased joint tenant claims a probate homestead interest. The joint tenants, Plaintiffs/Appellees, Max Casey, Patricia Nichols, and Carolyn O'Neal (hereinafter "Joint Tenants") asserted title and ownership rights over certain joint tenancy property upon the death of their co-joint tenant father, the spouse of Margie Casey (hereinafter "Widow"). While Widow asserts no title or ownership claim in the property, she claims merely that the Joint Tenants' interest is subject to her homestead right to possession and occupancy as a surviving spouse pursuant to


James A. Williamson of Tulsa, Oklahoma, for Plaintiffs/Appellees.
Charles J. Brackney of Jay, Oklahoma for Defendant/Appellant.

Lavender, J.

¶1 The issue in the present cause is whether the trial court erred in entering judgment as a matter of law in favor of the Joint Tenants in its determination that Joint Tenants are sole owners of the joint tenancy property in question by virtue of right of survivorship and that Widow has no homestead interest in the property. Widow appealed, claiming a probate interest in the property pursuant to



¶2 Earl Casey married his second wife, Widow, in 1982. Joint Tenants are the adult children of Earl Casey and his first wife. For many years prior to his marriage to Widow, Earl Casey owned property on Grand Lake (hereinafter "lake property").

¶3 In 1983, during that period of their periodic use of the lake property as a vacation home, Earl Casey conveyed the lake property by warranty deed

¶4 Upon Earl Casey's death, Joint Tenants requested that Widow vacate the property and served Widow with a Notice to Quit in May, 2002. Widow refused to vacate the lake property, asserting her homestead right as the surviving spouse.

¶5 Joint Tenants filed the instant quiet title action on June 14, 2002 to clear title to the lake property as well as to other property not subject to this appeal. Joint Tenants filed a Motion for Partial Summary Judgment

¶6 Widow appealed and the COCA reversed and remanded with instructions, determining that Joint Tenant's "title and occupancy [was] subject to the right of homestead according to [



¶7 As a preliminary point, we note that "summary judgment is appropriate only when it appears [from the pleadings, affidavits, depositions, admissions or other evidentiary materials] there is no substantial controversy as to any material fact and that one of the parties is entitled to judgment as a matter of law." Flanders v. Crane Co.,

¶8 We also note preliminarily that it is uncontroverted that the lake property at issue in this case is joint tenancy property, the principle characteristic of which is a right of survivorship in the joint tenants. See In re Estate of MacFarline,

¶9 Widow asserts her constitutional

Upon the death of either husband or wife, the survivor may continue to possess and occupy the whole homestead, which shall not in any event be subject to administration proceedings, except as in this title provided, until it is otherwise disposed of according to law. . . .


¶10 In this case, we note that in 1983, Earl Casey executed a warranty deed to the lake property (acquired by him prior to the marriage) and thereby conveyed the property to himself and to his children in joint tenancy with a right of survivorship at a time when the lake property did not constitute the homestead of the couple. Thus, this is not a situation in which one intentionally sought to deprive his spouse of a homestead. See Gross v. Gross, 491 N.W.2d 751, 753 (S.D. 1992)(providing homestead laws "are intended to prevent one spouse, in life or in death, from unilaterally depriving the other spouse of a homestead.")

¶11 Widow analogizes Joint Tenants' interest in the lake property to that of codevisees' interest and asserts the application of the rule in Mercer v. Mercer on the facts of this case. Joint Tenants argue this matter is distinguishable from Mercer and assert this is a case of first impression.

¶12 The COCA apparently agreed with Widow, as it determined that Joint Tenants' interest in this case was likewise subject to Widow's homestead right pursuant to Mercer.

¶13 Additionally, the COCA also appears to have ignored express language of § 311, which expressly provides for the surviving spouse's right to "continue to possess and occupy the whole homestead, which shall not in any event be subject to administration proceedings, except as in this title provided, until it is otherwise disposed of according to law."



¶14 In sum, we hold the trial court correctly entered judgment in Joint Tenants' favor as a matter of law in its determination that Joint Tenants are sole owners of the joint tenancy property in question by virtue of right of survivorship and that Widow has no homestead interest in the property. We further hold pursuant to

¶15 Upon Certiorari previously granted,



¶17 HARGRAVE, J., dissents.

¶18 KAUGER, J., dissenting.

I would deny cert as improvidently granted.


1 The record reflects Earl Casey purchased the lake property during his first marriage to Joint Tenants' mother, Era Mae Casey, in 1956.

2 The warranty deed, which was executed on May 4, 1983, expressly provides "[t]his property does not constitute the homestead of the first party; no other signatures necessary." Widow's own deposition testimony includes her acknowledgment that she and Earl Casey did not permanently reside at the lake property until sometime in 1988. Despite this acknowledgment, Widow nevertheless complains in her Motion to Reconsider that the 1983 warranty deed conveyance was "contrary to and in direct derogation of his then wife's marital, and homestead rights and interests in and to the subject Lake Property." Widow later concedes in the same Motion that she "is making no claim herein of or for any right, title, or interest in ownership in and to the "Lake property". Her claim of right is only for the widow's probate homestead exemption of the continued use and occupancy, not title, of the subject Lake Property, the former marital home. . . ." While Widow's concession is contained in what she has labeled a motion, this motion contains citation to legal authority as well as argument and is therefore in substance a brief and we shall treat it as such. "Oklahoma case law has long allowed admissions in the brief to be regarded as a supplement to the appellate record." Brennen v. Aston, 2003 OK 91, ¶ 4, 84 P.3d 99, 100 n.3; Deffenbaugh v. Hudson, 1990 OK 37, 791 P.2d 84, 86, n. 3 (citation omitted). Further,"[w]here a party to an action makes solemn admissions against his interest in a pleading, they should be treated as admitted facts, and he will not be heard to question the correctness thereof at any stage of the case in the trial court or on appeal. . . ." Tway v. Hartman, 1937 OK 536, 75 P.2d 893, 896 (citation omitted).

3 We note that the Joint Tenants' quest for "partial summary judgment" should have been termed a "motion for summary relief" or "motion for summary disposition of an issue." See Akin v. Missouri Pacific RR., 1998 OK 102, ¶ 4, n.1, 977 P.2d 1040, 1042; Rule 13 of the Rules for the District Courts, 12 O.S. Ch. 2, App.1.

4 Court Minute of April 4, 2003 and filed on April 9, 2003 in the District Court of Delaware County.

5 This statute applies in cases in which there are multiple claims or parties. It provides for the immediate appeal of fewer than all of a party's claims when the trial court certifies that there is no just reason for delay and expressly directs the filing of a final judgment, decree, or final order. In other words, when one complete claim has been fully decided, but other claims stand unresolved, the trial court may advance the decided claim for immediate review. See Liberty Bank & Trust Co. v. Rogalin, 1996 OK 10, 912 P.2d 836, 838; Davis v. Gray, 1994 OK 60, 875 P.2d 1145. In order for an adjudicated claim to be suitable for immediate appeal pursuant to § 994, it must not arise from the same transaction or occurrence as the unadjudicated claims. Rogalin, 912 P.2d at 838; see Tolson v. United States, 732 F.2d 998 (D.C. Cir. 1984) (discussing separate claims for purposes of Federal Rule 54(b), which is similar to 12 O.S. 2001, § 994(A)); Retherford v. Halliburton Co., 1977 OK 178, 572 P.2d 966, 969 (providing "this jurisdiction is committed to the wrongful act or transactional definition of 'cause of action.'"). An appellate court is not required to accept a trial court's § 994 certification, but "retains the power to reverse the trial court's certification for abuse of discretion." Shackelford v. American Airlines, Inc., 1996 OK CIV APP 27, 916 P.2d 282, 284 (citing Sears , Roebuck & Co. v. Mackey, 351 U.S. 427, 437). Our sua sponte analysis of all the Joint Tenants' claims filed with the trial court reveals that the claim at issue in the instant appeal concerning the lake property (labeled tract "A" in Joint Tenants' Petition) was a separate and distinct claim from the remaining unresolved claims. The unresolved claims involve the parties' dispute over other tracts of land (labeled tracts "B, C and D"), which are purported to be held by Defendant in a constructive trust for Plaintiffs. (Joint Tenants subsequently filed an Amendment to their Petition to Quiet Title, which acknowledged that tract "B" is part of the property referenced as tract "C" and that these properties "should not be considered as separate parcels.") The instant claim concerning the Joint Tenants' rights versus the Widow's purported homestead rights in the lake property is a discrete claim, which clearly does not arise out of the same transaction or occurrence as the parties' unresolved claims concerning other parcels of property. Therefore, the trial court properly exercised its discretion in its certification and entry of a final appealable order as to the lake property claim.

6 OKLA. CONST., Art. 12, §§ 1 and 2 provides for the extent, value and exemption of the homestead, such exemption intended as protection against creditors. This constitutional homestead exemption is distinct from the surviving spouse's statutory probate homestead rights of possession and occupancy at issue in this case. For a discussion of the differences between the constitutional homestead exemption rights and the probate homestead rights, see Mercer v. Mercer, 1961 OK 210, 365 P.2d 554, 556; Bowers v. Gardner, 1926 OK 167, 250 P. 490.

7 Our pronouncement today is consistent with this Court's prior holding in Cooper v. Long, 1923 OK 519, 220 P. 610, 610 (Syllabus by the Court) ("[a] cotenant, the head of a family, . . . cannot subject to the homestead rights a tract of land held in cotenancy, to the exclusion of the rights of the other cotenant. . . ."); see also Gottsch v. Ireland, 1961 OK 4, 358 P.2d 1097, 1101 (holding "[a] tenant in common will be allowed his homestead in the common property as against claims of creditors, but not as against the claims of his cotenants so as to defeat their right to partition. . . .").

8 Ostyn v. Olympic, 455 So. 2d 1137 (Fla. Dist. Ct. App. 1992) (holding that upon death of joint tenant, the joint tenancy property vested immediately in the surviving joint tenant by right of survivorship and the deceased joint tenant held no ownership interest in the marital home/joint tenancy property to which the surviving spouse's homestead right could attach).

9 Gross v. Gross, 491 N.W.2d 751 (S.D. 1992)(holding that upon the death of joint tenant, title passed by operation of law to surviving joint tenants and widow had no homestead right in the property). This case was decided pursuant to a homestead statute, which was virtually identical to § 311. See infra note 12.

10 Widow asserts these authorities are distinguishable from the facts of this case because the property at issue in each of these cases was transferred in joint tenancy with a right of survivorship prior to the second marriage. She argues that Earl Casey executed the deed during their marriage and that this fact somehow defeats the surviving Joint Tenants' claim. Oklahoma law clearly provides that it is the time of death of the joint tenant, which is the critical event for purposes of determining the status of the parties and the property in this case. It is the joint tenant's death, which prompts the vesting of interest in the surviving Joint Tenants in this case by operation of law. See In re Estate of MacFarline, 2000 OK 87, ¶ 16-17, n. 5, 14 P.3d 551, 558; Bleakley v. Bowlby, 1976 OK 158, 557 P.2d 894, 897; Littlefield v. Roberts, 1968 OK 180, 448 P.2d 851, 855. Further, "the effect of the probate homestead vested in [the surviving spouse] is to be determined by the status of the parties as it existed at the time of the death." Mercer, 365 P.2d at 557.

11 The COCA's determination in this case appears to have been based at least in part on a misunderstanding of the facts in Mercer. In its analysis of Mercer, the COCA opinion provides in pertinent part as follows: "In Mercer, as here, a second wife was involved and children by the first marriage of the deceased were surviving joint tenants. The Court ruled that the surviving wife had the right to occupy and live on the property during her life, or until abandonment, and that such right was superior to the right so the children-joint tenant survivors." COCA opinion, p. 7 (citing Mercer, 365 P.2d at 554, 557).Close analysis of the facts in Mercer clearly reveals that while the parties there were factually similarly situated to the parties in this case, i.e., children challenging the step-mother's homestead right, the critical dissimilarity to the case at bar is that the children in Mercer were not joint tenants in the purported homestead property, but rather, the children in Mercer were codevisees of equal shares of an interest in their deceased father's property via his will. It is this critical factual dissimilarity of the children's interest, which leads us to a different conclusion here from that in Mercer.