Estate of Bleeker v. Bleeker

2013 OK CIV APP 106, 316 P.3d 932, 2013 WL 6529154, 2013 Okla. Civ. App. LEXIS 98
CourtCourt of Civil Appeals of Oklahoma
DecidedAugust 23, 2013
DocketNo. 108898
StatusPublished

This text of 2013 OK CIV APP 106 (Estate of Bleeker v. Bleeker) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Estate of Bleeker v. Bleeker, 2013 OK CIV APP 106, 316 P.3d 932, 2013 WL 6529154, 2013 Okla. Civ. App. LEXIS 98 (Okla. Ct. App. 2013).

Opinion

LARRY JOPLIN, Chief Judge.

11 Plaintiff/Appellant seeks review of the trial court's denial of Appellant's request for an award of prejudgment interest. An award of prejudgment interest was granted on August 26, 2010, after the appellate court remanded this cause to the trial court in March 2010. One of the Defendants, Lavena Dale, sought bankruptcy protection and an automatic stay was instituted. Dale was eventually denied discharge in bankruptcy and the automatic stay was lifted, this appeal then proceeded.

T2 This case originated upon the death of Joseph Bleeker in February 2004. Bleeker died intestate, leaving no spouse or children. The Defendants, C.D. Bleeker, Lavena Dale and Connie Dale, went to Bleeker's house the day after he died and collected some of his property, including two lock boxes, at least one of which contained significant amounts of cash, over $220,000. The trial court found the Defendants had violated 58 0.$.2001 § 292, having wrongfully alienated decedent's property before the granting of letters testamentary or the appointment of an estate administrator. The Court of Civil Appeals affirmed in part, reversed in part, and remanded the case to the trial court for further proceedings (Appeal No. 107,021). Upon remand, the trial court awarded $144,857.79 in prejudgment interest, initially favoring the estate's request for prejudgment interest.

T3 Lavena Dale sought reconsideration of the trial court's grant of prejudgment interest. The trial court, in evaluating the motion for reconsideration of the prejudgment interest award, agreed with Dale, finding the estate did not seek prejudgment interest at the time of the judgment. The trial court determined the amount would have been a calculable amount, capable of being made a sum certain from the date upon which the property was alienated to the date of judgment, a requirement for the imposition of prejudgment interest under 23 0.98.2001 § 6. The trial court order found prejudgment interest under 28 0.8.2001 $ 6 must be considered an element of damages, and the judgment had become final without the inclusion of prejudgment interest. As a result, the court determined adding prejudgment interest after the cause was remanded would have had the effect of modifying the final judgment. The Appellant's prejudgment interest request was thereafter denied.

T4 Ilene McGehee, on behalf of the estate, appealed this order. On appeal, Appellant argues the estate is entitled to prejudgment interest by virtue of 28 0.S8.2001 § 6.1 The partial summary judgment was not [934]*934a final order. Prejudgment interest is not an element of damages. And prejudgment interest is proper under 12 O.S. Supp.1999 § 727, in addition to being permitted under 28 0.8. § 6.2

T5 The issue of entitlement to an attorney's fee, costs, and interest presents purely a legal question which we review de movo without deference to the trial court's determination. - Finnell v. Jebco Seismic, 2003 OK 35, ¶ 7, 67 P.3d 339, 342. The appellate court will exercise its "plenary, independent, and nondeferential authority when reexamining a trial court's legal rulings." Pioneer Equip. Rental, L.L.C. v. W.S. Bowlware Const., Inc., 2008 OK CIV APP 32, ¶ 2, 180 P.3d 694, 695 (citations omitted).

16 We note Appellee did not file a response to the petition in error, nor a response brief in this appeal. Therefore, this appeal proceeds on Appellant's brief only. In a case proceeding on the appellant's brief only, this court is under no duty to search the record for a basis to affirm the judgment, and where the appellant's brief is "reasonably supportive of the allegations of error" this court will ordinarily grant the relief sought by the appellant. Sneed v. Sneed, 1978 OK 138, 585 P.2d 1363. However, "(reversal is never automaticl.] [The trial court's judgment] is presumed correct until the contrary has been shown by the record." Hamid v. Sew Original, 1982 OK 46, 645 P.2d 496, 497 (citations omitted).

I 7 Plaintiff/Appellant argues the summary judgment that was previously appealed and affirmed in part, and reversed in part and remanded was not a final judgment and is capable of having prejudgment interest added to it upon remand. To this end, Appellant argues Shanbour v. Phillips 66 Natural Gas Co., 1993 OK 128, 864 P.2d 815, demonstrates that a post-summary judgment motion for prejudgment interest under 23 O.S. § 6 should be granted.

{[ 8 In Shanbour, the district court entered judgment in favor of the royalty interest payor. After judgment was entered, the district court denied a request for interest and attorney fees. The case was then appealed, which included the payor's objections to the district court's denial of payor's interest payment request, As a result, the Shanbour district court decided the issue of interest and that issue was brought before the appellate court along with the appellant's other propositions of error. Shambour does not stand for the proposition that a plaintiff can remain silent and do nothing with respect to prejudgment interest at the district court level, then participate in the appeal of the summary judgment that contained no award of prejudgment interest (Appeal No. 107,021) and wait until remand to ask the court to add prejudgment interest.

T9 The question presented by Appellant here is whether the appealed judgment can contain nothing with respect to prejudgment interest, then allow the trial court to add prejudgment interest on remand to that portion of the award that was affirmed, which is the nature of Appellant's request here. In light of the Oklahoma legislative development of 12 O.S. §§ 696.3 and 696.4, we find Appellant had a responsibility to present her request for prejudgment interest prior to the remand of this case in 2010.

10 In 2002, prior to Bleeker's death, 12 0.8. Supp.2002 § 696.4 provided in part as follows:

A. A judgment, decree or appealable order may provide for costs, attorney fees, [935]*935and interest or any of these items, but it need not include them. The preparation and filing of the judgment, decree, or ap-pealable order shall not be delayed pending the determination of these items. Such items may be determined by the court if a timely request is made, regardless of whether a petition in error has been filed.
B. If attorney fees, costs, or interest, including the amount of such attorney fees, costs, and the rate of interest, have not been included in the judgment, decree or appealable order, a party seeking any of these items must file an application with the court clerk along with the proof of service of the application on all affected parties in accordance with Section 2005 of this title. The application must set forth the amount requested and include information which supports that amount. The application must be filed within thirty (80) days after the filing of the judgment, decree or appealable order unless a posttrial motion pursuant to subsection A of Section 990.2 of this title has been filed within ten (10) days after the filing of the judgment, decree, or appealable order.

12 0.8. § 696.4(A) and (B) (emphasis added).

1 11 In 2004, this section was modified, and the reference to interest was removed from § 696.4, as indicated:

A. A judgment, decree or appealable order may provide for costs, attorney fees, or both of these items, but it need not include them.

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Related

Withrow v. Red Eagle Oil Co.
755 P.2d 622 (Supreme Court of Oklahoma, 1988)
Shanbour v. Phillips 66 Natural Gas Co.
864 P.2d 815 (Supreme Court of Oklahoma, 1993)
Hamid v. Sew Original
1982 OK 46 (Supreme Court of Oklahoma, 1982)
Finnell v. Seismic
2003 OK 35 (Supreme Court of Oklahoma, 2003)
Sneed v. Sneed
1978 OK 138 (Supreme Court of Oklahoma, 1978)
Pioneer Equipment Rental, L.L.C. v. W.S. Bowlware Construction, Inc.
2008 OK CIV APP 32 (Court of Civil Appeals of Oklahoma, 2007)

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Bluebook (online)
2013 OK CIV APP 106, 316 P.3d 932, 2013 WL 6529154, 2013 Okla. Civ. App. LEXIS 98, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-bleeker-v-bleeker-oklacivapp-2013.