Poteau State Bank v. Mitchell Flying Service, Inc.

1979 OK CIV APP 44, 599 P.2d 436, 1979 Okla. Civ. App. LEXIS 108
CourtCourt of Civil Appeals of Oklahoma
DecidedJuly 31, 1979
DocketNo. 50430
StatusPublished

This text of 1979 OK CIV APP 44 (Poteau State Bank v. Mitchell Flying Service, Inc.) 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
Poteau State Bank v. Mitchell Flying Service, Inc., 1979 OK CIV APP 44, 599 P.2d 436, 1979 Okla. Civ. App. LEXIS 108 (Okla. Ct. App. 1979).

Opinion

BOX, Judge:

An appeal by William L. Holt and Billie Jo Holt, defendants and cross petitioners below, from a judgment of the trial court decreeing that Poteau State Bank, plaintiff below, had priority over the Holts in collateral of Mitchell Flying Service, Inc., defendant below.

The facts are uncontested. In 1972 the Holts owned an airplane dealership and flying service, Mitchell Flying Service, Inc. James Mitchell was president of the corporation and ran the operation. Mitchell Flying Service is an Oklahoma corporation, located in Poteau, while James Mitchell is an Arkansas resident, residing in Fort Smith. In May 1972 Mitchell Flying Service acquired possession of the airplane in question, a Cessna 150, from the Cessna Aircraft Company, apparently under a conditional sale agreement that would become complete three months later. The financing was [437]*437handled through Cessna Finance Company. Cessna Finance filed its “Chattel Mortgage (Security Agreement)” form with the FAA Aircraft Registry in Oklahoma City on June 28, 1972.

Around this time in 1972, James Mitchell bought Mitchell Flying Service from the Holts. As part of the deal, Mitchell Flying Service and James Mitchell individually cosigned a promissory note in the principal amount of $65,000, dated July 1, 1972. Mitchell Flying Service executed a security agreement in favor of the Holts dated July 3,1972, covering the “inventory of 4-1-72,” which was set out, and all like after-acquired property. We are not told whether that security agreement was filed with the Federal Aviation Administration, but on October 15, 1974, Mitchell Flying Service executed an “Aircraft Chattel Mortgage” covering the airplane in question in favor of W. L. Holt, and this latter instrument was recorded in the FAA Registry on December 3, 1974. It was understood by Holt and Mitchell, and Holt signed a letter to the effect, that the mortgages Holt held on this and one other airplane were “second lien mortgages . . . subject to first mortgages to the Cessna Finance Co.”

Poteau State Bank entered the picture, as far as this airplane is concerned, in 1975. Mitchell Flying Service borrowed some money from the Bank on March 19, 1975, and on that date Mitchell Flying Service signed a security agreement covering the airplane in question. With part of the proceeds of the loan the remaining indebtedness to Cessna Finance was paid; the rest of the proceeds were deposited. Cessna Finance released its security interest on April 1, 1975. The release was recorded on April 14,1975, and after that Cessna Finance was out of the picture. The Bank then filed an “Aircraft Chattel Mortgage” with the FAA on April 18, 1975.

Mitchell Flying Service was unable to meet its obligations, so the Holts filed suit against Mitchell Flying Service and James Mitchell on the $65,000 note and the security agreement in the United States District Court for the Eastern District of Oklahoma. In that action the court dismissed Mitchell Flying Service as a defendant for lack of diversity (the Holts are Oklahoma residents; Mitchell is an Arkansas resident, while Mitchell Flying Service is an Oklahoma corporation). Then on October 8, 1975, pursuant to a settlement between the parties, Judge Fred Daugherty rendered judgment for the Holts against James Mitchell for $63,626.56, plus interest and an attorney’s fee.

This action was filed by the Bank on October 15, 1975. The Bank sought a money judgment from Mitchell Flying Service and possession of the airplane, and the Holts were joined as defendants because they might “be claiming some right, title and interest in and to said aircraft.” The Holts answered by general denial and cross petitioned against Mitchell Flying Service and the Bank. Mitchell Flying Service never answered or appeared. On April 22, 1976, the Bank took a money judgment by default against Mitchell Flying Service. On June 29, 1976, the Holts also took a default judgment against Mitchell Flying Service, for $65,000, interest, costs, and attorney’s fees. In the journal entries of both default judgments, the trial court reserved judgment on the issue of the possession of the airplane.

The latter issue was tried to the court on July 8, 1976, and judgment was entered on August 13, 1976. In the journal entry the trial court made the following findings:

The Court takes judicial notice of the fact that the defendant, William L. Holt, did in fact perfect a chattel mortgage prior to that of plaintiff herein, but that said chattel mortgage purports to represent a certain promissory note in the amount of $30,000.00, which the Court finds to be nonexistent. Therefore, the mortgage being evidence of a debt only and there being no indebtedness in the amount set forth on the mortgage, there could be no priority over that of plaintiff. The Court further finds that the note sued upon by defendant William L. Holt and Billie Jo Holt is identical to that sued upon in the United States District Court for the East[438]*438ern District of Oklahoma, upon which judgment has been rendered thereon and execution levied upon. Defendants are therefore estopped by virtue of its earlier judgment.

The court also found “that the uncontro-verted testimony of defendant William L. Holt reflects that said note upon which he relies was in fact assigned, sold and transferred unto the plaintiff, Poteau State Bank, on the 31st day of December, 1973.” In that regard we note that the record reflects testimony of Mr. Holt to the effect that he later bought the note back from the Bank. No officer or employee of the Bank testified, but in Mr. Mitchell’s testimony he also indicated that Holt bought the note back.

The Holts filed a motion for a new trial, which was heard on October 1, 1976, and overruled on November 18,1976. The Holts now bring this appeal.

Priority in the Collateral

For their first proposition the Holts contend that the trial court erred in holding that since there was “no indebtedness in the amount set forth on the mortgage, there could be no priority over that of plaintiff [Bank].” It is undisputed, and the Holts admit, that there never was a note for $30,000. It is likewise undisputed, however, that Mitchell Flying Service did owe the Holts a debt of some $65,000. And the trial court found, as we have seen, “that the defendant, William L. Holt, did in fact perfect a chattel mortgage prior to that of plaintiff [Bank] herein . . . The critical issue, then, is the effect of the language in the October 1974 “Aircraft Chattel Mortgage,” which was filed in December 1974.

We begin by observing that the “Aircraft Chattel Mortgage” form, the instrument used by Holt and Mitchell Flying Service to record the security interest on this airplane, is a standard form supplied by the FAA which was in common use at the time. The Bank used the same form to record its security interest. The form contains blanks for all of the information necessary to make the instrument eligible for recording in the FAA Aircraft Registry, but it also contains blanks for information that is not necessary for recording. With the information included by Holt and Mitchell Flying Service in their October 1974 instrument inserted in brackets, the form contains the following language:

WITNESSETH: That the said mortgagor, being justly indebted to the said mortgagee in the sum of [Thirty Thousand] dollars ([$30,000.00]), as evidenced by a promissory note referred to herein,

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1979 OK CIV APP 44, 599 P.2d 436, 1979 Okla. Civ. App. LEXIS 108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/poteau-state-bank-v-mitchell-flying-service-inc-oklacivapp-1979.