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Sweeten v. Lawson

Court of Appeals of Oklahoma, Division IV

September 19, 2017

FLO SWEETEN, Plaintiff/Appellant,

          Mandate Issued: 10/18/2017


          Darryl F. Roberts, Ardmore, Oklahoma, for Plaintiff/Appellant

          John D. Otey, OTEY LAW OFFICES, P.L.L.C., Ardmore, Oklahoma, for Defendants/Appellees


         ¶1 In this replevin action, Plaintiff Flo Sweeten (Sweeten) appeals from the trial court's Order denying her motion for new trial following the trial court's grant of summary judgment to Defendants Kyle Lawson (Lawson) and the Town of Gene Autry (the Town) (collectively, Defendants). Based on our review, we conclude Sweeten's replevin action does not fall within the scope of the Oklahoma Governmental Tort Claims Act (GTCA). [1] Furthermore, we conclude the trial court erred in denying Sweeten's request for prejudgment delivery. Finally, a substantial controversy remains as to Sweeten's ownership of at least some of the personal property items she claims and, therefore, summary judgment was improperly granted. We remand this case to the trial court for further proceedings.


         ¶2 Sweeten filed a "Petition for Writ of Replevin" in September of 2015 alleging she is "the owner, operator and has an interest in the Blue Rooster gift shop located in the Gene Autry Museum in Gene Autry, Oklahoma." She alleged that "certain items of personal property" owned by her are located in this gift shop, and she alleged this property "is being wrongfully detained by [Defendants]." She requested that the trial court "issue an order for the immediate delivery" of the personal property which she listed in an exhibit attached to her petition, "and for all other relief as allowed by law."

         ¶3 Defendants filed an "Objection and Answer to Application for Order of Delivery." Defendants denied Sweeten's allegations and asserted Sweeten "has not shown any title or proof of ownership to any of the items listed in her petition[.]"

         ¶4 A hearing on Sweeten's request for prejudgment delivery of her claimed property was set for October 23, 2015. Prior to the hearing, Defendants filed a motion to dismiss in which they asserted Sweeten has failed to comply with the GTCA. Defendants assert Sweeten's claims constitute "an action sounding in the tort of conversion, and as such the [GTCA] applies and requires a specific set of procedural requirements before ripening into a justiciable cause of action that can be filed in an Oklahoma district court[.]" As to the Town in particular, Defendants asserted it is a political subdivision of the State of Oklahoma and, hence, is protected from tort liability under the GTCA. As to Defendant Kyle Lawson, Defendants stated that

Lawson's only function[s] that touch or concern the subject property issues raised in [Sweeten's] petition were performed by [Lawson] acting in his official capacity as Mayor of the Town of Gene Autry, and as such [Lawson] would further assert immunity from prosecution individually and as a governmental actor[.]

         ¶5 In Sweeten's response to the motion to dismiss, she pointed out that "[t]he purpose of a motion to dismiss is to test the law that governs the claim, " not the facts. [2] Sweeten also cited to Womack v. City of Oklahoma City, 1986 OK 14, 726 P.2d 1178, among other cases, in support of the proposition that her replevin action does not constitute a tort action and, hence, is not subject to the provisions of the GTCA.

         ¶6 An evidentiary hearing on Sweeten's request for immediate, prejudgment delivery of her claimed property was held on October 23, 2015. [3] Testimony was elicited at this hearing from Sweeten and Lawson, as well as from a criminal investigator who testified regarding an ongoing criminal investigation involving certain entities with connections to the museum where the gift shop in question is located. Lawson testified he "changed the locks, " after which Sweeten, along with the general public, could not enter the museum or gift shop (a shop which Sweeten testified she operated since 1990). Lawson admitted there was no search warrant, tax, fine, penalty, or order of delivery issued by a court to support preventing Sweeten from gaining access to her property or which might defeat Sweeten's request to have her property delivered to her. Although Lawson testified he did not believe Sweeten's property was technically seized, when questioned: "So you're denying her the right to get her property, " Lawson responded, "Now I am." [4] When questioned, "Why should [Sweeten] be denied her personal property from the Blue Rooster, " he responded, "Because it's been left in there for over four months and she never asked for it." When questioned, "Do you know of anyone other than [Sweeten] who has a claim to the personal property contained in the Blue Rooster, " he responded, "No."

         ¶7 Lawson did testify that "[t]he previous mayor had purchased American Express gift cards" - - apparently with taxpayer or municipal funds - - "and those same American Express gift cards were used to purchase items inside the museum." When questioned by his counsel whether it appeared to him when he "took over [as mayor] and reviewed the finances for [the Town]" that there "were some financial discrepancies involving" certain entities involved with the museum, Lawson responded in the affirmative and named several entities, such as a senior citizens center and a historical society, and he also named one individual - - Sweeten's husband, Elvin Sweeten. Lawson then revised his earlier testimony, stating that he would not "be inclined" to turn over Sweeten's property "[f]or two reasons: The first reason is it's been there for over four months in one of our buildings that we own; and the other reason would be that there's a current investigation into how some of those items were purchased, with what funds."

         ¶8 Indeed, Sweeten testified she would sometimes purchase items for the gift shop, "[f]or convenience, " with an American Express "card" - - possibly referring to the same American Express gift cards about which Lawson testified. When questioned where the money to purchase these cards c[a]me from, Sweeten responded, "Me, " but when questioned whether "[a]ny of them ever came from your husband, " she responded, "Sometimes."

         ¶9 Marc Sanders, who testified he is "employed as the criminal investigator for the 20th Judicial District Attorney, " responded in the affirmative when questioned whether there is "a current investigation involving some of the entities in the Town of Gene Autry such as the historical society and the senior citizens center and development authority for Gene Autry?" He further testified he believed this investigation would be compromised if property was removed from the museum. However, with regard to the gift shop, he testified "the only thing I have right now in regard to the Blue Rooster is I have seen one receipt turned in to the CENA grant for the senior citizens center that had a Blue Rooster notation on the top." He testified that no search warrant or other order allowing seizure of property has been issued, apparently because the Town is cooperating with the investigation, and when directly questioned whether "part of the investigation pertain[s] to the fact that some of the money that may have been embezzled - - allegedly embezzled were used to purchase items that are located in the Blue Rooster store, " Sanders responded, "Not in the store that I'm aware of at this point[.]"

         ¶10 At the end of the hearing, the trial court granted Lawson's motion to dismiss on the basis that both Sweeten and Lawson testified that, at all times relevant to this case, Lawson did not act in his individual capacity, and acted only in his official capacity as mayor of the Town.

         ¶11 Less than three weeks after the hearing, the Town filed a motion for summary judgment, and, in the trial court's Order filed in December 2015, it granted summary judgment to the Town. [5] Citing Gibson v. Copeland, 2000 OK CIV APP 112, 13 P.3d 989, but not Womack, 1986 OK 14, the trial court determined that the replevin action sounds in tort and, therefore, falls within the scope of the GTCA. The trial court found that because the Town constitutes a political subdivision under the GTCA, Sweeten was required to present the Town with notice of her claim as required under the GTCA. Because Sweeten failed to do so, the trial court found her replevin action against the Town is barred.

         ¶12 The trial court further found that, "[e]ven though the point is moot because [Sweeten] failed to file a GTCA claim, the Court also notes that the testimony that it received [at the October 2015 hearing] was insufficient for [Sweeten] to meet her burden in a replevin action." The trial court further stated, "However, the Court does not intend this Order to estop [Sweeten] from a civil action wherein proper discovery could be conducted, so that she may be able to establish that she did own some of the items contained in the Blue Rooster."

         ¶13 As to Lawson, the trial court explained it granted his motion to dismiss because, the court stated, the testimony taken at the October 2015 hearing was "that [Lawson] always acted in his official capacity as Mayor of Gene Autry at all relevant times during this matter, " and therefore he is "entitled to the protection of the GTCA. [Sweeten] was required to file a GTCA notice seeking return of the items prior to filing this action, " but failed to do so. Therefore, the court concluded Sweeten's replevin action against Lawson is barred. [6]

         ¶14 Sweeten then timely filed a motion for new trial. In the trial court's Order filed in April 2016, it determined it erred in granting Lawson's motion to dismiss "because facts were offered for the Court's consideration. These facts were undisputed by [Sweeten] and [Lawson] should have been, and hereby is, granted Summary Judgment." [7] The trial court otherwise denied the motion for new trial. The court again explained that Sweeten "was allowed to file a replevin action against the [Town] and [Lawson] because her claim did not arise out of incarceration. However, prior to filing the replevin action, [Sweeten] was required to comply with the GTCA. The facts are undisputed that [Sweeten] did not comply with the GTCA[.]" Consequently, the trial court denied Sweeten's motion for new trial. Sweeten appeals.


         ¶15 Three fundamental issues are presented on this appeal. The first issue is whether this replevin action falls within the scope of the GTCA. This is an issue of law which we review de novo. "We review rulings on issues of law by a de novo standard pursuant to the plenary power of the appellate courts and without deference to the trial court." Glasco v. State ex rel. Okla. Dep't of Corr., 2008 OK 65, ¶ 8, 188 P.3d 177 (citation omitted).

         ¶16 The second issue is whether the trial court erred in denying Sweeten's request for prejudgment delivery of her claimed personal property under 12 O.S. 2011 § 1571. To the extent this issue requires statutory construction, an issue of law is presented over which we have plenary, independent and nondeferential authority to determine whether the trial court erred. Fanning v. Brown, 2004 OK 7, ¶ 8, 85 P.3d 841 (citation omitted). However, we must defer to the trial court's factual determinations made at the October 2015 evidentiary hearing because "[t]he credibility of witnesses and the effect and weight [of] conflicting or inconsistent testimony are questions of fact to be determined by the trier of fact" and "are not questions of law for this Court on appeal." Estate of Gerard v. Gerard, 1995 OK 144, ¶ 18, 911 P.2d 266 (citation omitted).

         ¶17 Finally, the trial court not only denied Sweeten's § 1571 request for prejudgment delivery of her alleged property, the trial court also granted summary judgment to Defendants, thus terminating this entire replevin action. Summary process "is a search for undisputed material facts, " and "[s]ummary relief is permissible where neither the material facts[, ] nor any inferences that may be drawn from uncontested facts[, ] are in dispute, and the law favors the movant's claim or liability-defeating defense." Reeds v. Walker, 2006 OK 43, ¶ 8, 157 P.3d 100 (footnote omitted). Although "[a] trial court's denial of a motion for new trial is reviewed for abuse of discretion, " "[w]here, as here, our assessment of the trial court's exercise of discretion in denying [a new trial motion] rests on the propriety of the underlying grant of summary judgment, the abuse-of-discretion question is settled by our de novo review of the summary adjudication's correctness." Id. (footnotes omitted). [8]


          I. Does this replevin action fall within the scope of the GTCA?

         ¶18 In Gibson v. Copeland, 2000 OK CIV APP 112, 13 P.3d 989, a separate division of this Court addressed the issue, "Does Oklahoma statutory replevin fall within the scope of the GTCA[.]" Id. ¶ 13. The Gibson Court held that, "because statutory replevin sounds partly in tort and partly in contract, ... that aspect of replevin which sounds in tort falls within the scope of the GTCA." Id. The Gibson Court explained as follows:

At common law, replevin was an action ex delicto to recover personal property. Farha v. F.D.I.C., 963 F.2d 283, 287 (10th Cir. 1992). However, under the Oklahoma statute the replevin action may be for recovery of the property, a judgment for possession or the value if delivery is not possible, or damages for the detention of the property. 12 O.S. 1991 § 1580. Thus, the statutory remedy sounds both in tort and in contract. [ Farha, 963 F.2d] at 288. That part of the statutory remedy which provides for recovery of possession by replevin sounds in tort and that part which provides for damages for the value is traceable to the common law writ of trover, also a tort. Id. On the other hand, the remedy for damages for the detention of the property sounds in contract via detinue. Id.
The GTCA applies to the tort claims aspects of [the plaintiff's] statutory replevin remedy and provides immunity. The GTCA does not apply to contract matters and, therefore, does not apply to the contract aspect ...

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