source: Caselaw Access Project

author: OPALA, V.C.J.

license: Public Domain

text:
    2003 OK 49
    John R. BOOTH and Thomas Frank Booth, Plaintiffs/Appellees, v. Bobbie Jean McKNIGHT, Defendant/Appellant.
    No. 95,339.
    Supreme Court of Oklahoma.
    May 13, 2003.

      Karl D. Jones, Jones & Gardner, Vinita, OK, for Appellant.
    Dan A. Erwin, Chandler, OK, for Appel-lees.

      . Identified herein are ouly those counsel for the parties whose names appear on the certiorari briefs in this court.

   OPALA, V.C.J.

{1 The certiorari petition presents two dispositive issues for this court's resolution:

Was the Lincoln County District Court correct in concluding that the Craig County court's probate decree is facially void insofar as it distributes the mother's mineral interest? and [2] Did the former court err in quieting the brothers' title to the mineral interest? We answer both questions in the affirmative.

I

THE ANATOMY OF LITIGATION

T2 Lois Gene Booth (Mother) died testate in Craig County in 1996, survived by three children: John R. and Thomas Frank Booth, plaintiffs below (Brothers), and Bobbie Jean McKnight, defendant below (Sister). The Craig County District Court appointed Sister the personal representative of her mother's estate. Sister's final account shows the estate's residual assets to consist of $2,816.03 in Sister's lawyer's trust account and a small mineral interest (valued at $400) in a tract of land located in Lincoln County.

T8 The final account's terms explicitly state that with the exception of personal representative's and attorney's fees, all claims against the estate have been paid in full. The final account's filing triggered the scheduling of a hearing, the purpose of which was to consider objections to that document. Sister's lawyer published notice of the hearing in a local newspaper and mailed individual notices to all of the decedent's named heirs, devisees, legatees, and creditors. The record contains an affidavit of mailing that indicates notice of the critical hearing was sent to each of the two brothers.

T4 The mailed notice consists of a single-page document, the text of which states that a final account has been filed and a hearing on that instrument is scheduled for a certain date, time, and place. The notice urges all interested persons to appear at the hearing and show cause (f any they have) why the estate should not be settled according to the final account's terms. Conspicuously absent from the Craig County probate record is any indication that Brothers were mailed a copy of the final account that was to be the subject of the final distribution hearing and the very reason it was to be held.

1] 5 Neither of the brothers appeared at the final hearing. In settling the estate and distributing its assets the Craig County court ordered that all of the decedent's listed property be divided among the named heirs in equal one-third shares after payment of attorney's and personal representative's fees as well as the costs of administration. The court decreed that the mineral estate be awarded to the Sister as her personal representative's fee. It granted Sister's lawyer as his probate fee the amount he held in the trust account. Following payment to the personal representative and her lawyer, the probate assets stood exhausted. The court closed the estate. The brothers-who never received a copy of the final distribution decree-did not press for corrective relief from that ruling in the Craig County court.

1 6 Sometime after the estate's closing, the mineral interest began producing substantial revenue. When the brothers learned that the Craig County probate court had awarded the mineral interest to Sister in toto, they brought suit against her in Lincoln County (the situs of the land) to quiet their title.

17 The brothers alleged their mother's will directs the mineral interest's division among the siblings in equal one-third shares. Although Sister's final account prayed for such a distribution, the court's decree awarded the interest entirely to her. The brothers (a) asserted that Sister's failure to give them adequate notice deprived them of property without due process and (b) complained the notice given them by the Craig County court was insufficient because Sister failed to let them know of the precise disposition she would seek there. Even had they read all the documents on file they would not have been adequately apprised of the relief she would press for at the final hearing.

T8 The Lincoln County District Court ruled that the Craig County notice was fatally deficient by failing to satisfy the minimum standards of due process. Instead of making it clear that a different disposition would be sought, the final account on file below (and included in the record for this appeal) confirms the asset distribution to be effected will be in conformity to the will's provisions. The very fact that a distribution other than that sought by the pleadings actually took place fatally taints the notice Sister provided. The Lincoln County court also ordered the mineral interest title quieted in each of the two brothers in one-third shares, leaving to Sister the remaining one-third.

T9 The Court of Civil Appeals (COCA) affirmed the Lincoln County court's decree, holding that neither the final account itself nor the notice of the hearing to be conducted informed the brothers that on their default they stood to lose the mineral interest devised to them by the mother's will. Lack of adequate notice deprived the brothers of the opportunity to appear and challenge the relief about to be sought. COCA analogized the result of the flawed final distribution hearing to a default judgment granting relief different in kind or amount from that sought by the pleadings and noted that such a judgment violates due process. In COCA's view (a) the Craig County probate decree's critical terms vary substantially from the plea for relief in Sister's requested distribution without affording advance notice to the brothers and (b) the variance is fatal because it facially offends due process. We granted certiorari.

II

THE LITIGATION'S PROCEDURAL POSTURE

A.

Collateral Attack

110 The brothers' quiet-title litigation collaterally attacked the Craig County probate decree. Facially valid adjudications of a district court sitting in probate stand immune from collateral attack to the same extent as any other judgment. A court's power to decide a case includes the power to decide wrongly. When a court exercises judicial power over a subject, its judgment must stand undisturbed unless challenged by a timely appeal.

T$11 A valid probate decree is one which-on the face of the judgment roll-shows the presence of three required elements of jurisdiction: those of the person and subject matter as well as of the power to render the entered decree. When an examination of the record proper's face reveals a want of one or more of these requirements, the decree is facially void and subject to collateral attack by any interested party at any time and wherever venue may be laid. Passage of time will neither vitalize a facially flawed decree (or judgment) nor immunize its plainly fatal deficiency from collateral attack.

B.

Standard of Review

112 The Lincoln County court's ruling amounts to a declaration that, for want of adequate notice, the Craig County final distribution decree is facially void pro tanto-to the extent that it distributes the mineral interest entirely to Sister. It is that legal conclusion which stands here today for de movo review. When reexamining a trial court's legal rulings, an appellate court exercises plenary, independent, and non-deferential authority.

C.

Sufficiency of the Record for this Appeal

113 This court is called upon to review today one district court's nullity sentence pronounced upon another district court's adjudication, rested upon the latter decision's facially-apparent partial invalidity. This task can be accomplished only by examining the entire judgment roll. The Lineoln County record for the appeal we now review has been assembled and certified, but the Craig County probate's judgment roll is in disarray. It consists only of certified copies of critical documents the parties deemed indispensable for the determination of the probate decree's facial validity and of other issues raised below. A collateral attack-such as that brought in Lineoln County-is not designed to afford corrective relief by appeal. Its issues stand confined to a review of the assailed judgment's four corners for facial validity a process that ordinarily can be accomplished only by resort to a complete judgment roll.

114 No issue will be resolved upon a critically deficient record. Our examination of the Craig County record is of necessity confined to instruments from that county's probate proceeding which stand included in the record for appeal and which qualify for incorporation into the judgment roll. While generally this court will not notice any instrument that is not a part of the appellate record, uncontroverted facts dehors that record which stand admitted in the parties' briefs may be considered to supplement the deficiently-assembled or incomplete judgment roll.

1 15 Neither party voiced here an objection to the Lincoln County court's determination of the probate decree's facial invalidity upon an incomplete judgment roll nor asserted that any missing documents, if there presented for inspection, would reveal anything contrary to the Lincoln County court's view of the probate judgment roll's condition. Nor was an objection ever raised on that ground before this court. We hence conclude the Craig County probate's judgment roll (aided by the parties' admissions in the briefs) is complete enough to warrant our pronouncement that the probate decree in contest is indeed facially void pro tanto.

III

THE CRAIG COUNTY PROBATE DECREE IS FACIALLY VOID PRO TANTO BECAUSE THE BROTHERS WERE ENTITLED TO NOTICE THAT WOULD APPRISE THEM OF THE NATURE OF THE ISSUES TO BE CONSIDERED AND THE CONSEQUENCES TO FOLLOW FROM THEIR DEFAULT

116 At early common law, land (and interests in it) devolved directly from ancestor to heir sans judicial intervention, with the title passing by descent to the heir immediately upon the ancestor's death. This state's law unequivocally requires that the district court, gua probate tribunal, have cognizance over all the decedent's assets, both in real and personal property.

{17 A final account is in the nature of a request for distribution of any remaining estate assets, for discharge of the personal representative, and for the estate's closing. After a hearing at which interested parties may object to the personal representative's conduct in administering the estate and to the proposed distribution, the probate court directs distribution of each remaining asset, payment of statutorily required fees, and closing of the proceeding. Upon expiration of the thirty-day appeal period, the decree's terms become enforceable.

118 The terms of the Fourteenth Amendment to the U.S. Constitution and those of Article 2, section 7 of the Oklahoma Constitution forbid the state from depriving any person of life, liberty, or property without due process of law. While the core element of due process is the right to be heard, that element would have no value unless advance notice is afforded of the hearing at a meaningful time and in a meaningful manner. The person to be affected must be fairly and timely apprised of what interests are sought to be reached by the triggered process. Notice and opportunity to be heard must be provided in such a way that a person can intelligently decide in advance whether to appear at the hearing and contest the matters in issue or acquiesce in their in absentia resolution and assume the risk from consequences attendant upon a default.

119 A probate distribution hearing is an adversarial judicial proceeding in which the personal representative and heirs (or beneficiaries) often stand in an adversarial position to one another. A final account is a pleading that (if approved) will have conclusive effect on the litigants' rights. The court's acceptance of the final account and its closing of the estate forever bars all subsequent claims against the estate and the personal representative. Given the close interrelationship between the judicial action here in contest and the extinguishment of the brothers' rights in their mother's estate, the only conclusion to be reached is that the final estate distribution (a) constitutes state action depriving persons of property rights and (b) is subject to full due process protection.

120 Notice is a sine qua non element of personal jurisdiction, without which the court wields no authority over the persons sought to be haled before it. The classic statement of constitutionally adequate notice is that which is reasonably calculated, under the cireumstances, to inform interested persons of the pending litigation and to afford them an opportunity to advocate their interest in the cause. Notice that satisfies due process performs two functions. It not only informs interested persons that litigation is pending (in the sense of telling them that it exists and informing them of time and place where the forensic battle will be waged), but also affords them an opportunity to present a defense against the adversary's claim. Af the bare minimum, a constitutionally adequate notice must apprise one of the antagonist's pressed demands and of the result consequent upon default.

T21 In order to accomplish that task, notice must provide one with more than the naked logistics of the hearing. For intelligently framing one's defense a person must know what issues one will be confronted with. In deciding whether to appear at the hearing to defend against issues presented for resolution or default and suffer the consequences, one must at every critical stage of the proceedings be provided with (1) notice at a meaningful time and in a meaningful manner, (2) a realistic opportunity to appear and be heard, and (8) the opportunity meaningfully to participate in the proceedings.

{22 The terms of Sister's final account state explicitly that the attorney's and personal representative's fees remain unpaid and that the estate stands ready for final asset distribution subject to those obligations. Had they had the opportunity to receive the final account before it came for hearing, the brothers easily could have determined that not all the estate's expenses had been paid and that satisfaction of unpaid expenses would reduce the few assets that remained. In short, they would have been able to ascertain what they stood to lose by their absence from the hearing. The critical defect that condemns the notice contents in the Craig County probate lies in its failure to provide the brothers with that vital information. Without access to the final account mo person could have known why the court would not have been able to accept that document and distribute the estate's assets according to its terms. In short, Sister's failure to apprise the brothers of the: consequences attendant upon their default rendered the Craig County notice constitutionally deficient and the probate decree entered upon it facially void pro tanto-ie., to the extent of the mineral interest's distribution.

IV

THE LINCOLN COUNTY COURTS DECREE HERE UNDER REVIEW IS FACIALLY VOID PRO TANTO INSOFAR AS THAT COURT EXCEEDED ITS LIMITED AUTHORITY OVER THE CRAIG COUNTY PROBATE DECREE-AUTHORITY THAT STOOD LIMITED TO DECLARING THE PROBATE DECREE FACIALLY VOID PRO TANTO AND REMOVING THE VOID DECREE'S CLOUD UPON THE MINERAL INTEREST IN QUESTION

$23 A probate decree (or any judgment) entered without proper notice is ipso facto facially void. Although a decree so entered may be collaterally attacked in a county outside that of its entry, no district court may extend its very limited cognizance to a review of another court's probate decision in toto. The Lincoln County court exceeded its judicial power by usurping the Craig County probate court's exclusive authority over the estate and, if necessary, to reconsider those parts of its decree that might prove inefficacious.

124 Whenever two courts of concurrent jurisdiction attempt to assert their authority over the same subject matter, the tribunal that first assumes cognizance must be allowed to wield the acquired power to the exclusion of the other. A district court sitting in probate has unlimited jurisdiction to determine in whom an estate's property is to be vested and any rights held by other persons in those assets. Upon a probate's commencement, the district court acquires exclusive cognizance over the estate which remains superior to that of every other tribunal. Although the probate decree stands tainted pro tanto by its partial invalidation, the Craig County court retains its cognizance over the probate assets in the decedent's estate.

125 Had there been no earlier probate proceeding in another court, a claim to quiet title to a mineral estate in Lincoln County (held by one with a muniment of title) could have been entertained in that forum. But since the estate still stood subject to the Craig County probate jurisdiction, the Lincoln County court could not expand its authority beyond the arena over which it was vested with jurisdiction and its venue stood extended. Because the Lincoln County tribunal's post-probate exercise of power was limited to the mineral interest located within that county, its authority was confined to (1) declaring the Craig County final distribution decree facially void pro tanto (to the extent of the mineral interest's distribution that was effected sans due notice) and (2) removing the flawed decree's cloud over the contested Lincoln County mineral interest. Once condemned as facially void pro tanto, the probate decree could then be reconsidered, at its venue in Craig County, for a new, facially valid redistribution. In quieting the mineral interest's title (in accordance with the terms of the mother's will) fhe Lincoln County court usurped the Craig County tribunal's exclusive probate jurisdiction. To the extent of that usurpation the Lincoln County court acted coram non judice.

126 A suit to quiet title is brought by a party who presses a claim that stands in some controversy with that of another. As the Craig County's mineral interest distribution is facially void pro tanto, neither the two brothers nor their sister could invoke that court's decree to claim title to the affected probate asset. None of them was capable of pressing (before the Lincoln County tribunal) a superior (or unclouded) title to that asset of the mother's estate. In short, the pro tanto facial invalidity of the Craig County probate decree was the sole issue the Lincoln County court could adjudicate.

y

SUMMARY

1 27, The probate distribution hearing triggered by a personal representative's filing of a final account is an adversarial judicial proceeding requiring a constitutionally adequate notice to all affected persons. The notice to be given must inform every party that its interest stands before a tribunal for adjudication and afford that party an opportunity to interpose a defense against the pressed result,. To meet this standard the notice to be given must be reasonably calculated not only to inform the person of the hearing's logis-tiecs-date, time, and place-but also to provide sufficient information that will allow the adverse party intelligently to ascertain what issues the hearing will address, what rights are at stake, and what one stands to lose upon default through non-attendance.

«[ 28 Whenever a tribunal assumes probate cognizance of an estate, it acquires over its assets exclusive jurisdiction that is superior to that of any other tribunal in the state. While the Lincoln County District Court was not incorrect in declaring the Craig County probate decree facially void pro tanto (for want of constitutionally adequate notice), it lacked the power to proceed farther and quiet the mineral interest's title. To that extent it usurped the Craig County tribunal's exclusive jurisdiction over a probate asset.

1 29 The Court of Civil Appeals' opinion is vacated; the decision of the Lincoln County District Court is affirmed in part and reversed in part; and the cause is remanded for further proceedings to be consistent with today's pronouncement.

1 30 WATT, C.J., and HODGES, LAVENDER, HARGRAVE, SUMMERS, BOUDREAU and WINCHESTER, JJ., concur.

1 31 KAUGER, J., concurs in result.

      . Final Account, Petition for Determination of Heirs, Distribution and Discharge, Plaintiff's Exhibit No. 3, Booth v. McKnight, Case No. CJ-99-203 (Dist. Ct. Lincoln County Sept. 7, 2000).

      . The terms of the final account's first paragraph are:
      Petitioner [Sister as executrix] respectfully shows to the Court that due and lawful notice to creditors of the above named deceased has been given, for the time and in the manner provided by law, and with the exception of the fees and expenses of the Personal Representative and attorneys, all claims of every kind and character, chargeable to said estate have been fully paid, satisfied and discharged, including costs of administration and all other expenses.
      Final Account, supra note 2, 11 (emphasis added).

      . The terms of 58 0.S.2001 §§ 553, 554 call for a hearing at which interested persons may file exceptions to the final account.

      . The pertinent terms of 58 0.9.2001 § 553 provide that in addition to individually-mailed notice to all heirs, legatees, and devisees whose addresses are known, R
      notice of such hearing shall also be given by publication once each week for two (2) consecutive weeks in a newspaper published in the county, showing the name of the decedent and of the executor or administrator, the date of the hearing, and that such account is for final settlement and distribution.

      . Affidavit of Mailing, Defendant's Exhibit No. 2, Booth v. McKnight, Case No. CJ-99-203 (Dist. Ct. Lincoln County Sept. 7, 2000). Although there was contention below as to whether the brothers received the mailed notice, the trial court made no finding on this disputed issue. When a letter is placed in the mail system bearing a correct address and sufficient postage to reach its destination, a rebuttable presumption arises that the letter did in fact reach the addressee. In the absence of sufficient rebuttal evidence, the presumption prevails. Shamblin v. Beasley, 1998 OK 88, ¶23 n. 51, 967 P.2d 1200, 1212 n. 51; Nat'l Aid Life Ins. Co. v. Parker, 1942 OK 213, ¶5, 127 P.2d 168, 169. We hence do not view the absence of a finding to be fatal to our consideration of the case.

      . Order Allowing Final Accounting, Decree Determining Heirs, Decree of Distribution and Discharge, Plaintiff's Exhibit No. 6, Booth v. McKnight, Case No. CJ-99-203 (Dist. Ct. Lincoln County Sept. 7, 2000).

      . Id.

      . Id. Payment of an executor's fee and that of the executor's lawyer are prescribed by the terms of 58 0.$.2001 § 525, which state that the personal representative "shall be allowed all necessary expenses in the care, management and settlement of the estate and for his services such fees as are provided in this chapter."

      . When a final distribution decree is entered upon a party's default, the terms of 58 0.S.2001 § 722 bar the defaulting party's appellate relief. A person in that position may move the probate court to vacate the judgment within thirty days of its entry. 58 0.$.2001 § 723.

      . Testimony heard during the Lincoln County proceedings indicates that as of the date of the hearing the $400 mineral interest produced approximately $40,000 in revenue. Transcript of Proceedings, Booth v. McKnight, Case No. CJ-99-203 (Dist. Ct. Lincoln County Sept. 7, 2000), at 39.

      . The terms of 12 0.$.1991 § 131 require that "[aletions for the following causes must be brought in the county in which the subject of the action is situated ... 4th, To quiet title, to establish a trust in, remove a cloud on, set aside a conveyance of ... real property."

      . Response [to Defendant's Supplemental Brief After Trial and Resume of Evidence], Record at 157.

      . Order, Record at 160.

      . Id. at 161.

      . Id.

      . Stork v. Stork, 1995 OK 61, ¶10, 898 P.2d 732, 737; Chandler v. Denton, 1987 OK 109, ¶10, 747 P.2d 938, 941.

      . Stork, supra note 17, 113, at 739; Chandler, supra note 17, T 10, at 942.

      . Halliburton Oil Producing Co. v. Grothaus, 1998 OK 110, ¶ 10 n. 11, 981 P.2d 1244, 1249 n. 11; Stork, supra note 17, ¶ 10, at 737; Sabin v. Levorsen, 1943 OK 77, ¶ 6, 145 P.2d 402, 405.

      . Halliburton, supra note 19, ¶ 10, at 1249; Messenger v. Messenger, 1992 OK 27, ¶ 11 n. 21, 827 P.2d 865, 870 n. 21; Mayhue v. Mayhue, 1985 OK 68, ¶ 5 n. 8, 706 P.2d 890, 893 n. 8; Gulfstream Petroleum Corp. v. Layden, 1981 OK 56, ¶ 7, 632 P.2d 376, 378; Scoufos v. Fuller, 1954 OK 363, ¶ 20, 280 P.2d 720, 723; Sabin, supra note 19, ¶¶ 7-8, at 405.

      . The term "judgment roll" is generally synonymous with "common-law record" or "record proper." Rodgers v. Higgins, 1993 OK 45, ¶ 11 n. 31, 871 P.2d 398, 405 n. 31. It includes "the petition, the process, return, the pleadings subsequent thereto, reports, verdicts, orders, judgments, and all material acts and proceedings of the court." 12 0.S.2001 § 32.1.

      . The relevant terms of 12 0.$.2001 § 1038 state: "A void judgment, decree or order may be vacated at any time, on motion of a party, or any person affected thereby." See also Halliburton, supra note 19, 110 n. 11, at 1249 n. 11; Norman v. Trison Dev. Corp., 1992 OK 67, ¶ 10, 832 P.2d 6, 10 ("(al facially void judgment may be attacked at any time; it may be vacated in the very same case in which it was entered or in some collateral proceeding"); Scoufos, supra note 20, 116, at 723.

      . Read v. Read, 2001 OK 87, ¶ 14, 57 P.3d 561, 565; Halliburton, supra note 19, ¶ 10 n. 11, at 1249 n. 11; Hough v. Hough, 1989 OK 65, ¶ 4, 772 P.2d 920, 921; Scoufos, supra note 20, ¶ 16, at 723.

      . This court is not called upon to review here the Craig County probate distribution. Rather, the case that stands before us for certiorari scrutiny is an appeal from the Lincoln County tribunal's quiet-title adjudication. The more deferential review standard that would generally govern on appeal from a probate decree does not apply here. See In re Estate of Maheras, 1995 OK 40, ¶ 7, 897 P.2d 268, 271-72 (probate decrees or orders are of equitable cognizance and may not be disturbed unless found to be clearly contrary to the weight of evidence or to some governing principle of law); In re Estate of Eversole, 1994 OK 114, ¶ 7, 885 P.2d 657, 661 (while an appellate court will examine the record proof, it presumes the trial court's probate decision is correct unless it is found to be clearly contrary to the weight of evidence or to some governing principle of chancery practice).

      . Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶ 14, 859 P.2d 1081, 1083 ("[issues of law are reviewable by a de novo standard and an appellate court claims for itself plenary, independent, and non-deferential authority to reexamine a trial court's legal rulings"); Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991).

      . Halliburton, supra note 19, 111, at 1249 (an examination of a judicial act's facial validity demands that the entire judgment roll be included in the record for appeal ); Fent v. Okla. Natural Gas Co., 1994 OK 108, ¶ 11, 898 P.2d 126, 132 (our determination of a nisi prius judgment's meaning and effect must be made solely by resort to the face of the judgment roll's four corners).

      . See 12 0.$.2001 § 990A; Oxta. Sup Cr. R. 1.28, 1.33, 12 0.$.2001, Ch. 15, App. 1.

      . The brothers also sought an accounting of mineral revenues Sister received after the estate's closing. Petition, Record at 4. The Lincoln County court correctly abstained from resolving that issue. No one here objects to its inaction. Sister's accounting must now await further proceedings to be conducted in the Craig County probate.

      . Eckel v. Adair, 1984 OK 86, ¶ 7, 698 P.2d 921, 924.

      . Fent, supra note 26, ° 11 n. 10, at 132 n. 10.

      . Salazar v. City of Oklahoma City, 1999 OK 20, ¶¶ 11-12, 976 P.2d 1056, 1061-62; Reeves v. Agee, 1989 OK 25, ¶14 n. 16, 769 P.2d 745, 752 n. 16; Eckel, supra note 29, ¶ 9, at 925.

      . First Federal Savings & Loan Assn. v. Nath, 1992 OK 129, ¶ 10 n. 32, 839 P.2d 1336, 1342 n. 32; Chamberlin v. Chamberlin, 1986 OK 30, ¶ 4 n. 6, 720 P.2d 721, 724 n. 6.

      . For a general discussion of early common law and its practice, see generally Thomas E. Atkinson, Haxnpsook or tHE Law or Wiurs 13-17 (2d ed.1953); Charles Petersdorff, A Practicat anp Enementary Asmriperment or tur Cases anp mn tue Courts or King's Bence, Common Preas, Excesour®, anp ar Nist Prrus anp or tHE Rutes or Court 24 (1832).

      . 58 0.$.2001 § 1. See also R. Robert Huff, Oxrarioma Prosate Law amp Practice § 1.6 (3d ed.1995).

      . 58 0.9.2001 § 634. See also Hetherington v. Falk, 1935 OK 750, ¶ 16, 49 P.2d 756, 759 (the 'final report and application for distribution" was sufficient as a pleading to invoke the court's jurisdiction to determine the rights of all persons to the estate and to distribute its assets).

      . 58 0.$.2001 §§ 553, 554.

      . 58 § 631.

      . 58 0.S.2001 § 525.

      . The terms of 58 0.$.2001 § 721 provide that an appeal from a final distribution decree may be perfected in the same manner as from other judgments. The terms of 12 0.$.2001 § 990A(A) provide a thirty-day period from the judgment's entry for commencing an appeal.

      . Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950).

      . Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965); Shamblin v. Beasley, 1998 OK 88, ¶ 12, 967 P.2d 1200, 1209.

      . See supra note 41.

      . Mullane, supra note 40.

      . Mullane, supra note 40, at 316, 70 S.Ct. 652 (an accounting procedure is unique because that species of hearing pits the beneficiary against the trustee as adversary).

      . See supra note 35 and accompanying text. The terms of 58 0.$.2001 § 556 additionally provide that the "settlement of the account and the allowance thereof by the court ... is conclusive against all persons in any way interested in the estate" save those under a legal disability. The pertinent terms of 58 0.$.2001 § 632 provide that a final probate decree "is conclusive as to the rights of heirs, legatees or devisees, subject only to be reversed, set aside, or modified on appeal." Because the absent party is barred from appealing, the consequence of property rights' severance is even more dire when a probate decree (as in this case) is entered upon a party's default. See supra note 10.

      . 58 0.$.2001 § 556. See also the provisions of 58 0.$.2001 § 691, which state that upon satisfactory showing that the estate has been fully administered, the court must issue an order (or decree) discharging the personal representative from any subsequent liability.

      . Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 487, 108 S.Ct. 1340, 1346, 99 L.Ed.2d 565 (1988) (the probate court's role in administering a decedent's estate is "so pervasive and substantial that it must be considered state action subject to the restrictions of the Fourteenth Amendment"); In re Estate of Pope, 1990 OK 125, ¶ 5, 808 P.2d 640, 643-44.

      . Peralta v. Heights Medical Center, Inc., 485 U.S. 80, 84, 108 S.Ct. 896, 899, 99 LEd.2d 75 (1988); Manzo, supra note 41, at 550, 85 S.Ct. 1187; Mullane, supra note 40; Pennoyer v. Neff, 95 U.S. (5 Otto) 714, 732, 24 L.Ed. 565 (1877); Shamblin, supra note 41. (due process stands violated by the mere act of exercising judicial power upon process/notice not reasonably calculated to apprise interested parties that legal action is pending and to afford them a meaningful opportunity to be heard); Heiman v. Atlantic Richfield Co., 1991 OK 22, ¶ 7, 807 P.2d 257, 260.

      . Mullane, supra note 40. In Mullane the Court states that the method chosen to impart notice must be that which will actually inform the absentee and be reasonably capable of achieving that goal. Id. at 315, 70 S.Ct. at 657-58. If a person may rightfully expect notice of impending judicial action but the method employed for its communication is merely a gesture, there is no notice at all. Id.

      . Shamblin, supra note 41, T 12 n. 34, at 1209 n. 34. .

      . Pope, supra note 47, at 489-90, at 108 S.Ct. at 1347; Manzo, supra note 41, at 552, 85 S.Ct. at 1191; Mullane, supra note 40; Shamblin, supra note 41; Estate of Pope, supra note 47, ¶ 3, at 642. "

      . See supra note 3.

      . COCA concluded that the Craig County probate decree was facially void because it was a default judgment that differed in kind or amount from that sought in the pleadings. COCA is correct that a default judgment awarding relief at variance (in type or quantum) with that sought in the pleadings offends due process for lack of adequate notice to the defaulting party. La Bellman v. Gleason & Sanders, Inc., 1966 OK 183, ¶¶ 11-13, 418 P.2d 949, 953-54; Davenport v. Jamison, 1918 OK 754, ¶ 10, 177 P. 550, 551-52. The relevant pleading before the probate court here-the final account-sought asset distribution in accordance with the will's terms but subject to outstanding personal representative's and attorney's fees. See supra note 3.

      . See supra note 48. See also In re White's Estate, 1935 OK 1202, ¶ 13, 52 P.2d 1074, 1075-76.

      . See supra note 22 and accompanying text. See also Gulfstream, supra note 20, ¶ 12, at 379; Sabin, supra note 19 (a judgment facially lacking one of the three jurisdictional elements may be collaterally attacked).

      . Chandler, supra note 17, §10, at 941-42 ('"'[tlhe power to decide includes the power to decide wrongly, and an erroneous decision is as binding as one that is correct, until set aside or corrected in a manner provided by law"); Matthewson v. Hilton, 1958 OK 6, ¶ 3, 321 P.2d 396, 398 (per curiam) (the district court's administration of a decedent's estate includes the authority to identify heirs and decide the proportion of assets each may take. The probate tribunal's determination is conclusive upon all heirs regarding their rights under the will or by inheritance except as the distribution decree may subsequently be altered-either on appeal or in another authorized proceeding). Assuming the absence of an appeal, a void judgment may be vacated at any time by any court, 12 § 1038, but a judgment-even when facially invalid-may be modified only by the tribunal that rendered it. 12 0.$.2001 § 1031.

      . See supra note 56. The terms of 12 0.$.2001 § 1031 provide the district court the authority to vacate or modify its own judgments by granting a new trial, as authorized by the terms of 12 O.S. 2001 § 2004(C), when it is determined the defendant had no actual notice of the proceedings at the time the judgment, decree, or order was entered, or for "mistake, neglect, or omission of the clerk or irregularity in obtaining a judgment or order." Id. § 1031(3). The terms of 12 0.8. 2001 § 709 additionally provide: "All orders and judgments rendered in the absence of proof of the notice herein required and in violation of the provisions of this section shall be void, and the court shall on its own motion vacate and set aside same when the same is brought to its attention." (emphasis added).

      . Autry v. District Court, 1969 OK 159, ¶ 5, 459 P.2d 865, 867 (the exercise of concurrent jurisdiction is governed by the principle of priority-the court that first exercises jurisdiction acquires it to the exclusion of others); Woolley v. Shaw, 1943 OK 55, ¶ 29, 136 P.2d 398, 403 (when two courts of concurrent, jurisdiction attempt to take cognizance over the same property, the court first asserting its power has exclusive cognizance); Citizens' Trust Co. v. Bird, 1933 OK 139, ¶ 9, 19 P.2d 577, 579 (when a court exercises jurisdiction over specific property, another court may not deprive it of the power to render a final decree in the case by taking from the latter's control of the subject matter of the suit).

      . The terms of 58 O.S.Supp.1997 § 1(C) provide:
      The district court which has jurisdiction and venue of the administration of any estate is granted unlimited concurrent jurisdiction and venue to hear and determine:
      1. In whom the title to any property is vested, whether the property is real, personal, tangible, intangible, or any combination thereof;
      2. Rights with respect to such property as to all persons and entities;

      . The terms of 58 0.$.2001 § 7 provide: "The district court ... shall have jurisdiction coextensive with the State in the settlement of the estate of the decedent and the sale of distribution of his real estate and excludes the jurisdiction of the district court of every other county." (emphasis added).

      . See supra note 12.

      . See supra note 57.

      . A case is said to be coram non judice when the court in which it is brought has no jurisdiction to settle the dispute. A decision coram non judice is legally invalid. City of Lawton v. Int'l Union of Police Ass'ns, Local 24, 2002 OK 1, ¶ 8 n. 20, 41 P.3d 371, 375 n. 20; Collins v. Mid-Continent Pipeline Co., 1999 OK 56, ¶ 9 n. 8, 6 P.3d 1050, 1053 n. 8. For the definition of coram non judice, see Brack's Law Dicttonary at 338 (7th ed.1999).

      . Ballinger v. Sarkeys, 1961 OK 59, ¶ 18, 360 P.2d 515, 518 (one who brings a quiet title suit must allege and prove that he is the owner of either the legal or equitable title. Failing that, it is immaterial what title the opposing party has or claims); Cherry v. Weathers, 1945 OK 343, ¶ 3, 164 P.2d 615, 616.

      . The successful outcome of a post- and extra-probate (collateral) Lincoln County contest over the portion of a final decree that distributed a bequeathed mineral interest does not by itself invest the victorious contestants with a muniment of title to any part of the affected probate asset as its testatorially intended beneficiaries. Carter v. Foote, 1961 OK 39, ¶ 17, 361 P.2d 215, 218; Yeldell v. Moore, 1954 OK 260, ¶ 10, 275 P.2d 281, 283; Smith v. Reneau, 1941 OK 99, ¶ 10, 112 P.2d 160, 162, 188 Okl. 629; In Re Douglas' Estate, 1939 OK 222, ¶ 11, 90 P.2d 35, 38, 185 Okl. 25; Bell v. Davis, 1914 OK 365, ¶ 4, 142 P. 1011, 1013, 43 Ok. 221.


author: KAUGER, J.

text:
    2003 OK 55
    Lita Kay GREEN, Plaintiff/Appellant, v. Casey John HARRIS, Johnny Paul Harris and Lisa L. Harris, Defendants/Appellees.
    No. 97,679.
    Supreme Court of Oklahoma.
    May 20, 2003.

      Mark A. Herndon, Dallas, TX, for Plaintiff/ Appellant.
    John R. Hargrave, Michael S. Ryan, Oklahoma City, OK, for Defendants/Appellees.
   KAUGER, J.

{1 The issue presented on certiorari is whether the trial court erred in granting summary judgment because the evidentiary materials do not support a claim for negligent entrustment as a matter of law. We hold that it did.

FACTS

T2 This cause concerns the liability of parents who provide a vehicle to their child, when they allegedly either knew or should have known that the child was an incompetent, careless, and reckless driver. The appellant, Lita Kay Green (Green), filed this negligent entrustment action against the ap-pellees, Johnny Paul Harris and Lisa L. Harris (Harrises/parents/father/mother) after she was involved in an automobile accident with the Harrises' son, Casey John Harris (Harris/son), who was seventeen and a half at the time of the accident.

T3 The son received his driver's license in March of 1997, and his parents provided him with a Chevrolet Camaro to drive. By June 27, 1997, Harris received his first speeding ticket. 'One month later, on July 27, 1997, the son received citations for driving under the influence of alcohol (DUI); driving left of center within 100 feet of an intersection, and failing to stop at a stop sign. 'Harris' driver's license was revoked on August 26, 1997. After the license was revoked, the parents sold the Camaro.

T4 On December 10, 1997, Harris was given notice that, effective January 9, 1998, his driver's license would be cancelled because he had dropped out of school. Harris did not get his license reinstated until September 4, 1998. By October 6, 1998, Harris was back on the road, this time driving a Ford Mustang. The record indicates that the parents essentially provided the car for the son. The title of the car and the finane-ing papers were in the father's name, although he insists that the son worked for him and made the payments. The mother indicated that the son worked for the father, but she really didn't know what he did or how much he was paid. -

15 The son got another speeding citation on October 80, 1998. Less than two months later, on December 9, 1998, Harris was involved in the accident which gave rise to this lawsuit. The accident occurred when Green and her minor daughter were stopped behind a stop sign at the intersection of a county road known as Old U.S. Highway 69 just outside of Durant, Oklahoma. According to the police report, Harris was traveling approximately 98 miles an hour when he lost control of the car, skidded off the highway, and struck Green's vehicle in the front and left side. The posted, legal speed limit where the accident occurred was 45 miles per hour.

T6 In an attempt to recover for the injuries she received in the accident, Green filed a lawsuit against Harris and his parents on May 22, 2000. She alleged that: 1) the son's intentional and wilful misconduct, gross negligence, negligence, reckless, malicious, wanton and careless actions were the cause of the accident and her injuries; and 2) because the parents, as legal and/or beneficial owners of the car, unlawfully and negligently entrusted the vehicle to their son, they were also liable. The parents moved for summary judgment on April 18, 2001. They argued that: 1) they had no knowledge, at the time of the accident, that their son was a careless, reckless or an otherwise incompetent driver; and 2) the mother could not be held liable because the title was not in her name.

T7 On April 8, 2002, the trial court issued a final order pursuant to 12 0.S.2001 § 994, sustaining the parents' motion for summary judgment. Green appealed on May 6, 2002, and on December 28, 2002, the Court of Civil Appeals, in an unpublished opinion, affirmed the trial court. We granted certiorari on April 7, 2003, to determine whether the trial court erred in granting summary judgment.

18 BECAUSE SUFFICIENT EVIDEN-TIARY MATERIALS EXIST CONCERNING THE PARENTS' LIABILITY FOR NEGLIGENT ENTRUSTMENT, THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT.

a. Material fact issues concerning the parents alleged negligence.

T9 Green's negligent entrustment claim against the parents concerns the alleged fact that they provided their son with an automobile and allowed him to drive it, when they either knew or should have known that he was an incompetent, careless and reckless driver. The parents argue that the undisputed facts show that they were not negligent because there is no relevant evidence which shows that they had notice that their son was a careless, reckless or otherwise incompetent driver. Green asserts that: 1) the trial court erred in granting summary judgment to the parents because her evidence, which includes cireumstantial evidence, establishes an actionable negligent entrustment claim against the parents; and 2) the issue of negligent entrustment is a fact question to be determined by the jury.

110 An actionable, common law claim for negligent entrustment exists when a person who owns or has possession and control of an automobile allows another driver to operate the automobile when the person knows or reasonably should know that the other driver is careless, reckless and incompetent, and an injury results therefrom. The question of negligent entrustment is one of fact for the jury. Such facts may be proved by cireumstantial as well as positive or direct evidence.

$11 A motion for summary judgment should be sustained only when the pleadings, affidavits, depositions, admissions or other evidentiary materials establish that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. All conclusions drawn from the evidentiary materials submitted to the trial court are viewed in the light most favorable to the party opposing the motion. Even when basic facts are undisputed, motions for summary judgment should be denied, if under the evidence, reasonable persons might reach different conclusions from the undisputed facts.

112 The evidentiary materials show that just after the son received his driver's license and his parents provided him with a car, he received a speeding ticket,. One month later he was cited for driving under the influence of alcohol, driving left of center and failing to stop at a stop sign. His license was revoked and later cancelled because he dropped out of school. After his license was reinstated and his parents provided him with another car, he got another speeding ticket. Deposition testimony from the parents indicates that they often revoked their son's driving privileges as a form of discipline and that he was "grounded" anywhere from 30 to as much as 50 times between the ages of 15 to 18.

113 Additionally, an affidavit of the local trooper who investigated the accident provides that, although his son had been a friend of Harris' for at least 10 years, he was not permitted to ride in a motor vehicle driven by Harris and that Harris had a reputation in the community for using aleohol and drugs while driving. Direct and cireumstantial evidence shows that Harris' relationship with his parents was such that they either had knowledge or should have known that Harris was a reckless and careless driver, and that he should not have been provided with a vehicle or allowed to drive. It is unlikely that the parents did not know of the son's driving propensities.

{14 The parents insist that pursuant Anderson v. Eaton, 1937 OK 216, 68 P.2d 858 and Barger v. Mizel, 1967 OK 38, 424 P.2d 41, their son's prior conduct as a driver is not relevant to determine their knowledge at the time of entrustment. However, neither Anderson nor Barger are dispositive of this cause and we decline to apply either of these cases to the facts presented. Amderson is distinguishable on its facts from the present cause, and the language the parents rely on in Barger is inconsistent and contrary to language found in McCarley v. Durham, 1954 OK 35, 266 P.2d 629.

15 Anderson involved a grandfather who purchased a car for his grandson. After the grandson was involved in an accident, the other driver sued the grandfather for negligent entrustment,. The only evidence regarding the grandfather's knowledge of the grandson's driving propensities was from testimony of an attorney who said that, after the grandson had been involved in a prior accident, the grandfather had stated to him that he knew the boy was a fast driver.

{16 The Court recognized that: 1) the statement constituted a voluntarily made statement in another matter; 2) there was no information regarding the cireumstances under which the prior accident arose; and 3) the statement only showed that the grandfather knew that the boy was a fast driver, but not necessarily reckless. Accordingly, the Court held that knowledge that a person is merely a fast driver is not sufficient to attach liability. Here, in addition to evidence that Harris was a fast driver, the evidence also shows that Harris was cited for driving under the influence, driving left of center and failing to stop. The deposition testimony of the parents shows that Harris was careless and irresponsible, and that they often "grounded" him and withheld driving privileges. The affidavit submitted by the local state trouper reflects that Harris' reputation in the community was that of an illegal drug and alcohol user and that it was general knowledge in the law enforcement community in the Durant area that he used drugs and alcohol and poor judgment while driving.

€ 17 Barger involved the potential liability of a sports car owner who permitted an alleged inexperienced driver, whose judgment was impaired by alcohol, to drive the car. After the driver was involved in an accident, an injured passenger sued the owner of the automobile. In an attempt to show that the defendant knew or should have known that the driver was careless and reckless, the plaintiff sought to introduce testimony concerning a prior automobile collision at an unspecified date between the owner of the vehicle and the driver who caused the accident. Because there was no evidence revealing the time or cireumstances surrounding the occurrence, the trial court did not admit the evidence.

§ 18 The Barger Court also recognized the general rule that evidence of an automobile driver's negligence on other occasions, or of habitual or customary manner of driving is inadmissable to prove negligence. It concluded that there was no other evidence suggesting that the owner knew or should have known that the driver was careless and reckless. The Court may have been correct in its assertions that prior accidents or bad driving habits may not be relevant to prove the negligence of a driver in a subsequent accident. Nevertheless, the rule has no application when the evidence is being used to prove that parents knew of their child's reckless driving habits, but still provided a car and allowed the child to drive it.

] 19 In McCarley v. Durham, 1954 OK 35, 266 P.2d 629, the Court recognized that it is not error to admit evidence of a pre-accident record in order to prove knowledge in a negligent entrustment action, even though the evidence may have been inadmissable against the driver to prove negligence in causing the accident. Although the evidence in McCarley was ultimately found to be insufficient to support such a claim against the parent, the Court implicitly noted its relevance to the issue of knowledge. The same rationale applies to the facts presented in the present cause. '

b. Under the facts presented, the appearance of only one parent's name on the car's title is not dispositive of the other parent's potential liability.

20 The parents also assert that the mother could not be held liable and that she had no ownership interest in the car, because her name was not on the title. Green contends that it is the right to possess and control the vehicle that is required to impose liability and not necessarily legal ownership. Under the facts presented, we agree.

121 Motor vehicle certificates of title in Oklahoma are documents of convenience and are not necessarily controlling of ownership of an automobile. Similarly, liability for negligent entrustment of a motor vehicle is not necessarily controlled by legal ownership of the vehicle. Although the doctrine of negligent entrustment is most often discussed in terms of ownership, in Shoemake v. Stich, 1975 OK 55, ¶ 3, 534 P.2d 667 we described it as:

"Shoemake's action against Stich for damages for personal injuries was based on the rule of law charging the owner of an automobile (Stich), or one having possession and control of an automobile, with liability for injury or damage resulting from the negligence of an incompetent, reckless, careless, or unqualified driver to whom the vehicle is entrusted by such person." (Emphasis supplied.)

122 Here, the evidentiary materials show that both parents exercised control over the car because they used driving privileges as a means of discipline. The father signed the financing for the car and made the payments. Although, both parents allege that the son was paying for the car and he was allegedly working for the father to earn the money, the mother didn't know exactly what it was he did or how much he was paid. When the evidence is presented at trial, a jury might determine that both parents may be liable because both parents were instrumental in furnishing the vehicle to their son and because the car was controlled by each of them.

CONCLUSION

123 To support an actionable claim for negligent entrustment of an automobile, the plaintiff must show that: a person who owns or has possession and control of an automobile allowed another driver to operate the automobile; the person knew or reasonably should have known that the other driver was careless, reckless and incompetent; and an injury was caused by the careless and reckless driving of the automobile. The question of negligent entrustment is one of fact for the jury, and may be proven by cireum-stantial as well as positive or direct evidence. On the record presented, disputed facts and conflicting inferences from disputed facts might lead reasonable people to conclude that: 1) the parents knew or had reason to know that their son was likely to use the automobile in such a manner as to create an unreasonable risk of harm to others when the accident occurred; and 2) both parents were instrumental in furnishing the vehicle to their son and both parents controlled his use of the car. Consequently, the trial court erred in granting summary judgment.

CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; TRIAL COURT REVERSED AND CAUSE REMANDED.

WATT, C.J., OPALA, V.C.J., and LAVENDER, SUMMERS, BOUDREAU and WINCHESTER, JJ., concur.

HARGRAVE, J., disqualified.

HODGES, J., not participating.

      . The investigating trooper submitted an affidavit stating that he was convinced that neither drugs nor alcohol played any role in this accident.

      . The parents' motion for summary judgment notes that the cause was originally styled Lita Kay Green, individually and as next friend of Kayelyn Green v. Casey John Harris, et al., but Kayelyn Green's claims have been settled and dismissed.

      . Title 12 0.$.2001 § 994 provides in pertinent part:
      "A. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the preparation and filing of a final judgment, decree, or final order as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the filing of a final judgment, decree, or final order...."

      . The parents cite 10 0.$.2001 § 20 which provides:
      ''Neither parent or child is answerable, as such, for the act of the other."
      However, the basis of this suit is negligent en-trustment, rather than the parents status as parents.

      . Shoemake v. Stich, 1975 OK 55, ¶ 13, 534 P.2d 667; Berg v. Bryant, 1956 OK 336, ¶ 5, 305 P.2d 517; Coker v. Moose, 1937 OK 67, ¶ 9, 68 P.2d 504; Waddle v. Stafford, 1924 OK 309, ¶ —, 230 P. 855. Although this cause involves negligent entrustment of an automobile, we note that liability is not limited to only motor vehicles. See e.g., Sawyer v. Kelly, 1944 OK 256, ¶ 3, 153 P.2d 97 [Permitting child to ride horse.]; Ingram v. State, 1990 OK 2, 786 P.2d 77 [Dangerous weapons to postal employee.]; Vance By and Through Vance v. Thomas, 1986 OK CIV APP 3, ¶ 9, 716 P.2d 710 [Minor's possession of a BB gun.]. The Restatement (Second) of Torts § 308 (1965) provides:
      "It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others.
      The Restatement (Second) of Torts § 390 (1965), a special application of the rule stated in § 308, provides:
      "One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them."
      Statutory liability is also imposed on owners and employers for knowingly permitting unqualified persons to operate motor vehicles. Title 47 0.8. 2001 § 6-307 provides:
      "Any person as herein defined, who is the owner of any motor vehicle and knowingly permits such motor vehicle to be operated by any person who is not qualified to operate a motor vehicle under the provisions of this act, shall be held civilly liable as a joint tortfeasor or any unlawful act committed by such operator."
      See also, 47 0.$.2001 §§ 6-304-305. Nevertheless, liability also exists independent of statute. Shoemake v. Stich, supra; Berg v. Bryant, supra.

      . Bergv. Bryant, see note 5, supra at ¶ 0; Coker v. Moose, see note 5, supra at ¶ 7. See also, National Trailer Convoy, Inc. v. Saul, 1962 OK 181, ¶ 10, 375 P.2d 922.

      . Berg v. Bryant, see note 5, supra; Greenland v. Gilliam, 1952 OK 72, ¶ 11, 241 P.2d 384. See also, National Trailer Convoy, Inc. v. Saul, note 6, supra.

      . K & K Food Services, Inc. v. S & H, Inc., 2000 OK 31, ¶ 16, 3 P.3d 705; Skinner v. Braum's Ice Cream Store, 1995 OK 11, ¶ 9, 890 P.2d 922; Buck's Sporting Goods, Inc., of Tulsa v. First Nat. Bank & Trust Co. of Tulsa, 1994 OK 14, ¶ 11, 868 P.2d 693.

      . K & K Food Services, Inc. v. S & H, Inc., see note 8, supra; Phelps v. Hotel Management, Inc., 1996 OK 114, ¶ 7, 925 P.2d 891; State ex rel. Hettel v. Security National Bank & Trust Co. in Duncan, 1996 OK 53, ¶ 24, 922 P.2d 600.

      . Prichard v. City of Oklahoma City, 1999 OK 5, ¶ 19, 975 P.2d 914; Kraszewski v. Baptist Medical Center of Oklahoma, 1996 OK 141, ¶ 6, 916 P.2d 241; Krokowski v. Henderson National Corp., 1996 OK 57, ¶ 9, 917 P.2d 8.

      . In re Foster, 1980 OK 37, ¶ 9, 611 P.2d 232; Hardware Mutual Casualty Co. v. Baker, 1968 OK 135, ¶ 25, 445 P.2d 800; Starr v. Welch, 1958 OK 72, ¶ 7, 323 P.2d 349. See also, City Nat'l Bank & Trust Co. v. Finch, 1951 OK 314, ¶ 5, 237 P.2d 869 [Certificate of title is not a muniment of title which establishes ownership, but is merely intended to protect against theft and facilitate recovery and aid in enforcement of motor vehicle regulation.].

      . Shoemake v. Stich, see note 5, supra; Berg v. Bryant, see note 5, supra; Coker v. Moose, see note 5, supra; Waddle v. Stafford, see note 5, supra.

      . Berg v. Bryant, see note 5, supra at 10; Coker v. Moose, see note 5, supra at 1 7.

      . Bergv. Bryant, see note 5, supra; Greenland v. Gilliam, see note 7, supra.


author: SUMMERS, J.

text:
    2003 OK 51
    Jack D. MOONEY and Bobbye D. Mooney, Plaintiffs/Appellants/Counter-Appellee, v. Jerry L. MOONEY, Sr., E. Sue Mooney, and Jerry L. Mooney, as Trustee Under the Declaration of Trust dated January 24, 1983, Defendants/Appellees/CounterAppellants.
    Nos. 96,014, 96,025.
    Supreme Court of Oklahoma.
    May 20, 2003.

      Bill R. Scarth, Scarth & Rahmeier, Clare-more, OK, for Plaintiffs/Appellants/Counter-Appellees.
    Tony Jack Lyons, Lyons & Lyons, Pryor, OK, for Defendants/Appellees/Counter-Ap-pellants.
   SUMMERS, J.

¶1 Our job here is to sort out competing claims between two brothers, each of whose land abuts the other's. We affirm the trial court's finding of an easement by implication, reverse its award of damages in division of a shop building as being contrary to the clear weight of the evidence, and affirm its denial of damages for a destroyed dog pen. The matter is remanded on the shop building issue.

T 2 Two brothers live as neighbors, and for many years shared a driveway for access to their respective homes. One brother improved the driveway and wanted the other to build his own. They disagreed over this and related matters, and the dispute resulted in a court proceeding involving one brother attempting to exclude the other brother's use of the driveway.

T3 Jack and Bobbye Mooney, husband and wife, purchased a one-hundred acre tract in 1982. The hundred acres includes the north half (80 acres) of a quarter-section (160 acres), and an additional twenty acre tract. Jack and Bobbye have a home in the southeast corner of the west half of the 80 acres. In 1983 Jack and Bobbye sold forty acres of the original 100 acres to Jerry, Jack's brother. In 1985 Jerry and his wife, Sue, completed their home not far from the home of Jack and Bobbye. In 1992 Jack sold an additional twenty-acres to Jerry.

T4 An open public road runs north and south along the west boundary of Jack and Bobbye's property. Jack's driveway to his home runs on the south boundary of his property and connects to this road. See Diagram at Appendix A. The driveway is twelve feet wide, and two to six feet are on Jack's property, and the remaining ten to six feet are on the property belonging to Jack's neighbor to the south, who is not a party to this litigation.

15 Jerry and Sue lived in a house on Jack's property and used the driveway. When Jerry and Sue's home was completed ° on Jerry's property they moved, and continued using Jack's driveway as a driveway to Jerry and Sue's home. Jerry testified that prior to his purchase of the property the brothers referred to the drivewsgy or road as "our entrance and exit."

1 6 The driveway existed prior to Jack and Bobbye's purchase of their property. «For many years the driveway was gravel, and Jack and Jerry split the cost of additional gravel to maintain it. The county placed asphalt on the driveway/road, and within one to two years thereafter, in 1995, Jack installed a concrete surface on the driveway up to his house. Jack extended the concrete to the - west side of the shop building and to the back of the shop building. In 1995 Jack installed an electronic gate on the driveway and gave Jerry access to the gate.

17 Jack later asked Jerry to install a driveway solely on Jerry's property, and to ° discontinue using the driveway on the south boundary. Jack testified that he did not like the recent traffic resulting from Jerry's ranching operation, nor Jerry's cattle on his property, nor Jerry letting others possess the security code to the electronic gate.

T8 In the southeast one-acre corner of Jack's forty acres is a shop building. The building is constructed of steel and attached to a concrete slab with concrete footings. It is approximately one-hundred feet long. Also in this one acre is the septic tank for the shop building, and a water well that supplies water to both the shop building and Jerry's home. -

11 9 Jack pays the property tax on the shop building and maintains insurance on it. Jack testified that the agreement between him and Jerry is that they are partners in the building and each entitled to 50% of it. Jack's house is on the west side of the shop building, and concrete driveways come from his "housing area over to the bay doors in the west side of the building." On the east side of the shop building is a gravel drive connecting to Jerry's driveway and the common driveway on the south boundary. See Appendix A.

1 10 Jack installed a fence along a portion of the boundary between him and Jerry, In 1999 when he returned from a vacation he discovered the fence missing. Jack then filed suit to quiet title to his forty acres and to stop Jerry from using the driveway and shop building. 'At trial Jack stated that he would allow Jack to use water from his well, and he had no objection to the placement of underground and overhead electric lines. Jerry claimed that he owned 70% of the building and a "way of necessity" along the driveway. Jerry further claimed damages for destruction of his dog pen that had been on, or mostly on, Jack's property.

111 The trial court determined that the use of the driveway was "reasonably necessary" for Jerry's use and enjoyment of his property. The court awarded the shop building to Jack, and gave Jerry a judgment against Jack for $12,500, an amount representing Jerry's 50% of the building. The court observed that no evidence was provided on the fair market value of the dog pen, and denied this claim. The court stated that Jerry could continue to use water for his home from Jack's well, and that the electric lines supplying Jerry's home would remain. The court further ordered that the septic tank for the shop building was awarded to Jack. Jerry filed a motion for new trial, and it was denied by the trial court.

{12 Jack brought an appeal challenging the award of the easement. Jerry brought a counter-appeal and challenged how the trial court described the easement, the amount of damages he was awarded for the shop building, the trial court's denial of his claim for the dog pen, and the denial of his motion for new trial.

- { 18 The Court of Civil Appeals affirmed in part and reversed in part. It affirmed the judgment against Jack in the amount of $12,500 for Jerry's interest in the shop building. It also affirmed the trial court's denial of Jerry's claim for damages based upon the removal of his dog pen. The trial court was reversed on the issue of Jerry's easement. Jerry sought certiorari seeking review of the appellate disposition of his easement and claims relating to the shop building and dog pen. Jerry also seeks review of the trial court's denial of his motion for new trial.

I. The Order Declaring Existence of an Easement |

{14 The trial court's order stated that Jerry possessed an "implied easement by reasonable necessity." The appellate court distinguished an implied easement from an easement by necessity, and concluded that the trial court found an easement by necessity. The appellate court concluded that the evidence was insufficient to support a claim of easement by necessity, and reversed the court's judgment on this ground.

€ 15 The appellate court noted that Jerry's cross-petition claimed a "way of necessity." Jerry's trial brief claims a "prescriptive right to use the road, and/or that it was an incorporeal hereditament, and an appurtenance to his land." The appellate briefs discuss both implied easements and easements by necessity. One of Jerry's appellate briefs argues that the trial court found an implied easement, and that the evidence supports such finding. Appellee's Answer Brief at 2-4. Jerry argues on certiorari that the trial court found an implied easement, and that necessity is an element of an implied easement.

16 Jack points out in his trial brief that Jerry claimed the driveway based upon theories of prescription, implied easement, and way of necessity,. The trial court record shows that Jerry claimed the driveway using all of these theories. Jerry also claimed that the driveway was granted as an "appurtenance" conveyed to Jerry from Jack by two deeds. See O.R. at 46, Defendants' Final Argument and Proposed Findings of Fact and Conclusion of Law. One question for us on certiorari is whether the trial court found an implied easement, and if so whether this finding was supported by the evidence.

¶ 17 In Story v. Hefner, 1975 OK 115, 540 P.2d 562, we said that an.casement "is the right of one person to go onto the land of another and make a limited use thereof." Id. at T 13, 540 P.2d at 566. Easements may be expressly created by deed, or by necessity, or prescriptive use, or implied in a deed. Id. We described an implied easement thusly:

An implied easement is a creature of common law. It is based on the theory that whenever one conveys property he includes or intends to include in the conveyance whatever is necessary for its beneficial use and enjoyment and to retain ' whatever is necessary for the use and enjoyment of the land retained. An easement by implication is a true easement having permanence of duration and should be distinguished from a 'way of necessity' which lasts only as long as the necessity continues.

Story v. Hefner, 1975 OK 115, ¶ 14, 540 P.2d at 566.

Jerry correctly points out that "necessity" is one element to an implied easement, and that the trial court's use of the phrase "reasonable necessity" is consistent with its use of the phrase "implied easement" in awarding an easement to Jerry.

T 18 In Story we discussed the "necessity" to establish an implied easement, and said that: .

| The necessity requisite to the creation of an easement by implication is not an abso-Iute necessity, a reasonable necessity is sufficient. Where, during unity of title, an apparent permanent and obvious servitude is imposed on one part of an estate in favor of another, and such servitude, at time of the severance, is in use and is reasonably necessary for fair enjoyment of the dominant estate, a grant or reservation of the right to continue such use arises by implication of law.

Story v. Hefner, 540 P.2d at 566, citing, Keller v. Fitzpatrick, 1951 OK 49, 228 P.2d 367; Gorman v. Overmyer, 1947 OK 136, 190 P.2d 447.

In Story we relied upon Keller and Gorman for the rule that "absolute necessity" was not required. Both Keller and Gorman are cases involving driveways, and are instructive.

19 In Keller the parties owned adjoining lots and each had access to a street by a U-shaped driveway connecting the lots to the street. Keller, 228 P.2d at 369. Because of the narrowness of this U-shaped driveway it was historically treated by the residents as one-way, and the automobiles entered one leg of the driveway and exited the other. We noted the difficulty in backing and turning automobiles on the driveway. Id. The court did not examine whether the parties could install additional driveways. We affirmed the judgment finding an easement.

1 20 In Gorman one party argued that an easement was not necessary because the other could build a driveway. Gorman, 190 P.2d at 450. We said that requiring a driveway would require materially changing that portion of the residence adjoining the driveway and the landscaping on the front yard. The material changes were creating new steps for a porch and removing the older steps, closing up a clubroom door; making some changes in windows in the rear of the residence. Id. 190 P.2d at 449. The changes in the landscaping would have required cutting down some trees and cutting away a portion of the slope in the front yard. Id.

1 21 In our case today Jack argues that the present driveway is not necessary for Jerry, because Jerry could build a road 4 mile in length on his property running from his house in a northerly direction to a public road that runs east to west on the north side of Jack's and Jerry's properties. Jerry argued that the land was "swampy ground," and that the expense in building the road on such ground would be inappropriate. The trial judge visited and viewed the property more than onee. The trial judge determined that Jerry could build a road running to the north side of his property but "at significant great expense."

11 22 Jerry gave no testimony on the cost of building a road as suggested by Jack. No "expert opinion" was used by either side on the issue of the cost of building a road on Jerry's property. However, Jack testified that he spent $30,000 in placing concrete to convert the asphalt/gravel road for %s of a mile to his house and the west side of the shop building. Jerry purchased the original forty acres from his brother for approximately $38,000.

4 23 The witnesses described the property of Jack and Jerry as being higher in elevation at their homes with the land sloping lower in elevation north of the homes. The aerial photograph of the properties shows a body of water on Jack's land that extends from the southwest corner of his property to the northeast corner of his property. The west side of the body of water has a dam. Various witnesses described the water as either a pond or a lake. In the photograph the water appears to cover several acres of Jack's property, and one witness estimated that it covered ten acres. Jack testified that the water did not overflow across the boundary of Jerry's property where Jack had proposed that Jerry build his driveway.

124 The trial court's ruling on the easement is based upon a perceived prohibitive cost to Jerry in building his own driveway. Jack argues on appeal that no evidence was introduced on the issue of the cost of Jerry building his own driveway. But the testimony does show the cost of building a concrete driveway on a prepared roadbed of asphalt and gravel for approximately the same distance as that minimally needed for Jerry to build a driveway. The evidence is sufficient to support the trial court's finding that Jerry could build a driveway but "at significant great expense."

125 We have explained that a deed may expressly grant or reserve an easement. An easement may also be created by the intent of the parties: "But an easement may be implied also, and the intention of the parties is determined by all the facts and cireumstances in order that effect may be given to the apparent intent." Tangner v. Brannin, 1963 OK 101, 381 P.2d 321, 322. We also said in Tangner:

An implied easement is based upon the theory that whenever one conveys property he includes in the conveyance whatever is necessary for its beneficial use and enjoyment and retains whatever is necessary for the use and enjoyment of the land retained....
In the case of Jackson v. Noble, 206 Okl. 411, 243 P.2d 735, an owner of adjoining lots had sold them to different grantees. Part of the improvements serving one of the lots protruded on the other. We reversed a judgment of the trial court that quieted title in the owner of the servient lot to the portion over which the disputed contention arose.
We there upheld the right of the owner of the dominant lot to use the implied easement on the ground that it was necessary to the reasonable enjoyment of the property. Our decision in that case was followed in the later case of Boucherie v. Garrette, Okl., 366 P.2d 763, the first syllabus thereof being:
'Where the owner of two or more adjoining lots employs one so that the other derives a benefit of a continuous, permanent and obvious nature from the other, and sells the one in favor of which the quasi easement exists, such easement, being necessary to the reasonable enjoyment of the property granted, will pass to the grantee by implication.'

Tangner v. Brannin, 1963 OK 101, 381 P.2d 321, 322-323, emphasis added.

In our case today the evidence before the trial court was that the gravel driveway or road on the south boundary existed for several years prior to Jack's purchase of the property, and thus prior to Jerry purchasing his parcels from Jack. Jerry and his wife lived in a house on Jack's land and used the driveway while Jerry was building his new house. Jerry and Jack referred to the road as "our entrance and exit." The two 40-acre parcels derived a benefit from the road that was "of a continuous, permanent and obvious nature." One improvement to Jerry's 40 acres, the driveway, protruded on to Jack's 40 acres and Jack's 40 acres is burdened by that improvement. Jack sold the 40 acres to Jerry without previously closing the road, or reserving the roadway in his conveyance.

127 We agree that the trial court awarded an implied easement. The award of the easement is an exercise of the trial court's equitable cognizance, and its order will be affirmed on appeal unless it is found to be against the clear weight of the evidence or is contrary to law or established principles of equity. Story v. Hefner, 540 P.2d at 566. We conclude that the order is not against the clear weight of the evidence, and that the order is not contrary to law or established principles of equity. We thus affirm the trial court's judgment that Jerry has an implied easement on the driveway.

128 In Jerry's appeal of the award of an easement he requests appellate relief in the nature of requiring the trial court to specify the easement using terms of legal description. Jerry does not point to any specific legal description that he offered for the trial court to use. The trial court used the description used by the parties to this dispute, that is, the driveway or road running on or near the south boundary of the quarter section beginning on the west boundary of Jack's property. Assuming for the purpose of argument that it is better practice for a court to define an easement by a legal de-seription of the property involved, there is nothing of record upon which this Court could base such a description. This is a matter which, however, could be handled by the trial court upon remand there.

II. The Shop Building

129 A shop building was built on Jack's property near Jerry's house, and the brothers had the habit for several years of eating dinner together every Monday night and then working together in the shop building. They also stored many of their own, and their mother's, possessions in the building. When the dispute occurred Jack sought to "quiet title" in the building, and asserted that Jerry was entitled to compensation for his share of the building. Jerry claims on certiorari that the trial court and the appellate court denied him due process when he was awarded only $12,500 for his interest in a shop building placed on Jack's property.

30 Jack and Jerry were two of the four owners of a company. Jack testified that he owned forty-three percent and Jerry owned 28 & per cent. The materials used to build the shop building came from this company with the consent of the four owners. Jerry testified that he installed the plumbing and some of electrical facilities in the building. Jerry testified that he was entitled to seventy per cent of the building. Jack testified that he paid the insurance premiums on the building, and that Jerry had not contributed for the premiums. Jack also stated that he "pays the taxes on it." Jack did not specify the amount of money he had paid in either premiums or taxes on the building.

181 Jerry testified that the value of the shop building for tax purposes is approximately $43,000. He did not specify whether this included the real property the building was on, or if it included the fire damage. Jerry did not explain any relationship between net value of an asset and its value for tax purposes. Jerry also testified that to move the steel structure and erect it in its present condition would cost $25,000.

132 Jack stated that he was familiar, and had experience in the past, with the cost of steel and "erection cost" of a building. Jack then stated that he could "guess" on the value for an erected building "like" the one at issue with similar concrete slab, plumbing, and electrical facilities. Jack's estimated value was $80,000 to $90,000. However, Jack also said that Jerry was more qualified to give an estimate on the value of the building. 133 Jack testified that Jerry was entitled to fifty per cent of the value of the building. Jack also testified that he and Jerry spent $25,000 "out of pocket" together to build the shop building. No "expert opinion" was used by either side to determine the value of the building.

4 34 The shop building had been damaged by a fire. Jerry testified that he had repaired some of the damage prior to the trial. He did not specify an amount of money that he had spent in making the repairs. Neither Jack or Jerry specified whether any insurance proceeds were available to repair the damage.

1 35 The court found that the building was on Jack's property, and that economic waste would result if the building was removed. The trial court concluded that Jack and Jerry should each receive one-half of the value of the building. The building was awarded to Jack. However, the trial court determined that the building's cost was $25,000 and the building's worth at $80,000, and then awarded Jerry a judgment of $12,500.

$36 When partners own property in equal shares we have looked at the net value of the partnership property in awarding respective shares. Freeling v. Wood, 1961 OK 113, 361 P.2d 1061, 1061-1062. The parties discussed who paid the taxes on the building and who contributed certain funds and labor, but no dollar amounts were stated by them exeept what they had jointly, and not separately contributed. Thus, it appears that in this circumstance the parties were attempting to determine the net value of partnership property by the fair, cash, or market value of the asset. See, eg., Freeling, 361 P.2d at 1063. We have reviewed a trial court's finding of the value of a partnership asset based upon whether any evidence existed in the record reasonably tending to support the finding. Cromwell v. Hamilton, 1923 OK 141, 214 P. 694, 694-695.

137 A value of $25,000 and the resulting award of $12,500 based upon 50% of that value is not supported by the record. The record shows a value of the building in excess of $25,000. Both Jerry's tax value of $43,000 and Jack's guess of $80,000-$90,000 exceed the $25,000 amount used to determine Jerry's one-half share.

€38 The out-of-pocket costs of $25,000 is insufficient, by itself, to determine value, since much of the material used to construct the building came from the brothers' company. The $25,000 amount does not include the cost of these materials, and the cost was incurred some years previous to the partnership dissolution. The amount of $25,000 to remove the building and construct it at another location does not determine the net value of the building. The trial court's evaluation of the building in that sum was clearly contrary to the clear weight of the evidence.

$39 Jerry asks us to adopt Jack's value of $80,000, but disregard Jack's statement that Jerry would be better at place-ing value, and disregard as well Jerry's value of $48,000. The trial court may determine the credibility of the witnesses before it. Kerr v. Clary, 2001 OK 90, ¶ 18, 37 P.3d 841, 845. We decline to determine on appeal the credibility of either brother. We decline to adopt either brother's estimate, as both fall short of identifying the value of the property. We reverse the judgment in the amount of $12,500, and direct the trial court to determine, upon further proceedings, the net value of the building, and award the appropriate judgment to Jerry.

III. The Dog Pen

1 40 A dog pen was installed in 1983. Jerry and Sue used the pen for their dogs. Jack did not use the pen. Jerry took photographs of Jack and a friend dismantling a dog pen in 1999. Jerry testified that he could not remember the cost of the original dog pen. However, he stated that it would cost him about six thousand dollars to replace it. He stated that the value of the pen had not depreciated during its sixteen years of use.

¶ 41 Jerry called as a witness Mr. Guess who built a dog pen on Jack or Jerry's property. He testified that the fair market value of this pen was "in the neighborhood of thirty-six hundred dollars." He testified that the pen he built was four or five years old.

¶ 42 Jack testified that the dog pen that was removed had been in place for seventeen to eighteen years. He testified that the dog pen Guess deseribed was not the dog pen that he removed. Jack said that he removed Jerry's dog pen from his property in February of 1999, and that "I put all the material on Jerry's property." Jack testified that he gave Jerry part of the materials to build the dog pen.

destroyed dog pen. 'I 43 The trial court directed the parties to file closing arguments combined with proposed findings of fact and conclusions of law. Jerry's final argument combined with proposed findings of fact and conclusions of law argued that he should receive $3,600 for the Jack's final argument said that Guess testified about a different dog pen recently built, and not the dog pen Jack dismantled. Jack argued that Jerry did not put on any evidence of the value of this much older dog pen.

'I 44 The trial court stated that no evidence was provided on the fair market value of the dog pen, and denied Jerry's claim. In sum, the trial court believed Jack's testimony that he dismantled a different dog pen from the one described by Guess. Jack stated that he stacked the materials from this dog pen on Jerry's land, and no value on these materials was made by Jack.

T45 When a plaintiff pursues relief in both equity and in law, and neither is paramount to, or provides a foundation to the other, a court submits the cause of action in law to a jury, unless waived. Mashunkashey v. Mashunkashey, 1941 OK 113, 113 P.2d 190, 192. Where the equitable issues are paramount, or the legal issues incidental to or dependent upon the equitable issues, then the issues are treated as equitable for purposes of the trial, and the findings of fact relating to both the equity and legal issues are reviewed on appeal using the "clear weight of the evidence" equity standard. See, eg., Waggoner v. Johnston, 1965 OK 192, 408 P.2d 761, 768, (where equitable nature of interpleader was paramount to claim for recovery of money the trial court's findings of fact were reviewed by the clear weight of the evidence standard).

146 The petition of Jerry against Jack did not allege that the dog pen was partnership property to be divided. Jerry did not seek any equitable relief based upon what Jack allegedly did to the dog pen. Jerry sought a "money judgment" in the amount of $6,000 for Jack's alleged willful destruction of Jerry's property. Further, Jerry did not base his right to this money judgment upon the trial court granting, or not granting, any relief in his equity-based claims.

147 In Silk v. Phillips Petroleum Co., 1988 OK 93, 760 P.2d 174, we reviewed a judgment for damages, and our standard of review was whether there was any competent evidence or reasonable inference from circumstances reasonably tending to establish a cause of action or to sustain the jury's verdict and judgment based thereon. Silk, 760 P.2d at 176. In the same proceeding we then reviewed an equitable claim for rescission, and stated that this Court is not bound by the reasoning of the trial court or by its findings, but will examine the whole record, consider and weigh the evidence. Silk, at 760 P.2d at 180. We thus used a legal standard of review for a legal claim and an equity standard of review for the equity-based claim in the same proceeding. We also note that when determining whether the equity issue is paramount one of the factors we examine is whether the alleged right to damages is dependent upon the establishment of the equitable right alleged. See, eg., Russell v. Freeman, 1949 OK 256, 214 P.2d 443, 444. The claim for damages to the dog pen in our case today is unrelated to the equity-based claims, and we thus review the evidence on this claim as in an action at law.

€48 We have said that in an action at law, the findings of fact by the trial court have the same force and effect as the verdict of a jury, and those findings will not be disturbed upon appeal where there is any evidence reasonably tending to support the findings. Robert L. Wheeler, Inc. v. Scott, 1991 OK 95, 818 P.2d 475, 480; Shick v. Enid Clinic, 1939 OK 101, 88 P2d 329, 330. Whether one dog pen or two dog pens existed, and if more than one, which one Jack dismantled, are questions of fact. The trier of fact in the trial court determines the eredi-bility of witnesses and the effect and weight to be given to conflicting or inconsistent testimony. Kerr v. Clary, 2001 OK 90, ¶ 18, 37 P.3d 841, 845. Evidence exists in the record to support the trial court's denial of Jerry's claim, and we thus affirm the trial court's denial of Jerry's claim for damages resulting from the dismantled or destroyed dog pen.

IV. Denial of the Motion For New Trial

1 49 Jerry challenges the trial court's denial of his motion for new trial. Appellate review of his motion for new trial involves the same arguments relating to the value of the shop building and denial of his claim based upon removal of the dog pen.

150 In reviewing a trial court's decision denying a motion for new trial, we use an abuse of discretion standard of review, and will reverse the order if the trial court is deemed to have erred with respect to a pure, simple and unmixed question of law. Jones, Givens, Gotcher & Bogan, P.C. v. Berger, 2002 OK 31, ¶ 5, 46 P.3d 698, 701. We have explained herein that the evidence is insufficient to support an award of $12,500 to Jerry for his share of the building. Thus, the trial court's denial of the motion for new trial on this ground was in error. We have also explained that the trial court record supports its denial of Jerry's claim for damages from the removal of the dog pen, and the denial of the motion for new trial on this ground was not an abuse of discretion.

Summary

1 51 In summary, the judgment of the trial court awarding an easement is affirmed. The award of a judgment for $12,500 is reversed with directions for further proceedings upon remand. The trial court's denial of the claim for damages from the removal or destruction of a dog pen is affirmed. The opinion of the Court of Civil Appeals herein is vacated, the judgment of the District Court is affirmed in part and reversed in part, and the matter remanded to the trial court for further action.

{ 52 WATT, C.J., OPALA, V.C.J., and HODGES, LAVENDER, HARGRAVE, BOUDREAU and WINCHESTER, JJ., Concur.

{53 KAUGER, J.,

Concurring in part, dissenting in part.

The opinion uses equitable standards, but fails to do equity.

      . Jacks' property is described two different ways by the trial court in its judgment of October 4, 2000. The property is described in the "Introductory Information" and the "Findings of Facts" portions of the judgment O.R. at 118 and 120. The descriptions are not identical. In the Introductory Information'" the property is described as "The NW 4 of NW 4 of Section 21, Township 22 North, Range 17 East of the LB. & M., Rogers County, Oklahoma, according to the U.S. Government Survey thereof," O.R. at 118. In the Findings of Facts the same tract is described as "the NW 4 of the NW of Section 21, Township 22 North, Range 17 East, Rogers County, Oklahoma." O.R at 120.
      The description in the Findings of Facts is incorrect. The stated source for this description is Plaintiff's Exhibit No. 6, General Warranty Deed from Kiska Oil Company to Jack and Bob-bye Mooney. The deed states a conveyance of ''The N 4 of NW 4 and W i of SE % of NW 4 of Section 21, etc." In the NW % of Section 21 (160 acres) Jack originally had the north%k (80 acres) and an additional 20 acres "W % of SE 4 of NW 4 of Section 21." Jack kept 40 acres, (west 4 of the north of the NW 4 of Section 21). The language in the original deed to Jack and Bobbye and Jack's conveyances to Jerry agree with the description of Jack's 40 acres in the Introductory Information" portion of the trial court judgment.

      . "Jerry's" property is described by the trial court in its judgment as three twenty-acre tracts: (1) the W % of NE % of NW 4 of Section 21; (2) W of SE 4 of NW % of Section 21; and (3) the E 4 of the NE 4 of NW % of Section 21; all in Township 22 North, Range 17 East of the LB. & M., Rogers County, Oklahoma. Judgment, at II(B), O.R. at 120.

      . The trial court made no express finding of fact on Jerry's claim that the road was an appurtenance, except to the extent that it found that: "The Defendants right to rights in said road are not found in any specific instrument or instruments of transfer to them by the Plaintiffs." O.R. at 121. "Appurtenances," unless otherwise qualified, means "all improvements and every right of whatever character pertaining to the premises described." 16 0.S$.2001 § 14. See, eg., Anthony v. Barton, 1945 OK 342, 164 P.2d 642, 645-646, (private electric line located partly on public highway and supplying farm with electric power was an appurtenance which passed by deed conveying land and appurtenances). The only appellate challenge Jerry makes to the trial court's grant of an easement is that it was not sufficiently described. We do not address Jerry's other theories for an easement since they are not before us for review See Reddell v. Johnson, 1997 OK 86, 942 P.2d 200, 202, (an appellate court is generally confined to the issues raised by the parties and presented by the proof, pleadings, petition in error and briefs).

      . The concept of net value of partnership property includes whether any liabilities are properly chargeable to the property. Pope v. Vernon, 1963 CK 13, 383 P.2d 9, 13.


author: LUMPKIN, Judge.

text:
    2003 OK CR 10
    Lloyd HICKS, Appellant, v. STATE of Oklahoma, Appellee.
    No. F-2002-490.
    Court of Criminal Appeals of Oklahoma.
    May 21, 2003.

      Robert Fugate, Okmulgee, OK, counsel for appellant at trial.
    Max Cook, District Attorney, Glen Hicker-son, Assistant District Attorney, Okemah, OK, counsel for the State at trial.
    S. Gail Gunning, Norman, OK, counsel for appellant on appeal,
    W.A. Drew Edmondson, Attorney General of Oklahoma, William R. Holmes, Assistant Attorney General, Oklahoma City, OK, counsel for appellant on appeal.
   SUMMARY OPINION

LUMPKIN, Judge.

{1 Appellant Lloyd Hicks was tried by jury and convicted of Driving While Under the Influence of Intoxicating Liquor, Subsequent Offense (Count I) (47 0.8$.2001, § 11-902) and misdemeanor Driving Under Suspension (Count II) (47 0.9$.2001, § 6-308(B)) in Case No. CF-2001-29, in the District Court of Okfuskee County. The jury recommended as punishment seven (7) years in prison and a one thousand dollar ($1,000.00) fine in Count I, and six (6) months in the county jail and a five hundred ($500.00) fine in Count II. The trial court sentenced accordingly. It is from this judgment and sentence that Appellant appeals Appellant raises the following proposition of error in support of his appeal:

I. Appellant was prejudiced by the trial court's failure to properly instruct the jury on the range of punishment for a third or subsequent felony offense of driving while under the influence of intoxicating liquor.

T2 After a thorough consideration of this proposition and the entire record before us on appeal including the original record, tran-seripts, and briefs of the parties, we have determined the case should be remanded for resentencing.

T8 This Court has long held that jury instructions are a matter committed to the sound discretion of the trial court, whose judgment will not be disturbed as long as the instructions, taken as a whole, fairly and accurately state the applicable law. Williams v. State, 22 P.3d 702, 711 (Okl.Cr.2001); Omalza v. State, 911 P.2d 286, 303 (Okl.Cr.1995). The trial court is to instruct the jury on the applicable law, including the full range of punishment. Ellis v. State, 749 P.2d 114, 115 (Okl.Cr.1988).

14 We agree with the trial judge that the decision as to sentencing options such as alcohol treatment, community service, and probation has been historically reserved to the sentencing judge under 22 O.8.Supp. 2002, § 991la. However, we find the trial court abused its discretion in this case by refusing to instruct the jury as to all punishment options listed under 47 0.9.2001, § 11-902(C)(4). While the in-patient treatment option set forth in § 11-902(C)(4)(a) is a rehabilitative type punishment not usually within the realm of -a jury's sentencing powers, the plain language of the statute, and the absence of any limiting language, makes that sentencing option available to either a judge or jury. Just as the Legislature established the sentencing powers of the court in 22 0.8.Supp.2002, § 9912, it also has the authority to make treatment a punishment option for determination by the trier of fact. While the procedure may raise questions regarding the enforcement of the punishment, those questions cannot impede the application of the facially constitutional statute.

15 It is impossible to determine what a jury in this case would have done under a proper instruction setting forth all punishment options. Therefore, we find the case should be remanded to the trial court for resentencing with instructions to instruct the jury as to both punishment options listed under § 11-902(C)(4). See Scott v. State, 808 P.2d 73, 77 (Okl.Cr.1991) (in a non-capital" case where the Court has determined that a sentence is infirm due to trial error it may exercise one of three options: modify within the range of punishment, modify to the minimum punishment allowable by law, or remand to the trial court for resentencing).

DECISION

The Judgment is AFFIRMED, and the case is REMANDED TO THE DISTRICT COURT FOR RESENTENCING CONSISTENT WITH THIS OPINION.

JOHNSON, P.J., and LILE, V.P.J., and CHAPEL, J. and STRUBHAR, J.; concur.