Date: 04-16-2009
Case Style: John H. Hinds v. Marshall Johnston, Jr., and Estate of Flora Johnston
Case Number: 2009 OK CIV APP 54
Judge: Bay Mitchell
Court: Oklahoma Court of Civil Appeals on appeal from the District Court of Tulsa County
Plaintiff's Attorney: William L. Hickman, HICKMAN & HICKMAN, Tulsa, Oklahoma, for Plaintffs/Appellees/Counter-Appellants,
Defendant's Attorney: Stephan S. Mathis, Thomas D. Hird, James W. Connor, Jr., RICHARDS & CONNOR, Tulsa, Oklahoma, for Defendant/Appellant/Counter-Appellee, Marshall Johnston, Jr.
Description: ¶1 Appellants Marshall Johnston, Jr., and Estate of Flora Johnston,1 (Johnston) appeal from the trial court's Journal Entry of Judgment, which quieted title in certain real property upon the determination that the Defendants/Appellees John H. Hinds and Rosa Lee Hinds (Hinds) had satisfied the payment terms of a mortgage on the property and were therefore entitled to release of the mortgage pursuant to 46 O.S. 2001 §15.2 Hinds counter-appeals the trial court's determination that the statutory penalty (for Johnston's failure to timely release the mortgage) against Johnston is waived.
¶2 The dispute arises out of a home loan agreement between an uncle (Marshall Johnston) and his nephew (John H. Hinds), wherein Johnston agreed to loan Hinds $70,000 at ten and one-half percent (10.5%) interest per annum to purchase a home in Tulsa, with monthly payments to be made on a fifteen (15) year term. Johnston provided the funds to Hinds and the closing on the Hinds home occurred on April 1, 1990. Although the record discloses no promissory note evidencing the parties' agreement,3 a mortgage, executed by Hinds in November 1990, was filed of record in July 1994.4 Hinds made no payments on the loan until July 1, 1990. Monthly payments continued thereafter until Hinds' last payment in the summer of 2005, at which time Hinds requested Johnston's release of the mortgage. Johnston failed to release the mortgage on the basis that the loan had not been paid in full. Hinds filed suit to compel the release, seeking liquidated damages for Johnston's refusal to release the mortgage. Johnston counter-sued claiming Hinds owed him approximately $6,000 in interest on the loan for the months of April, May and June of 1990.
¶3 The central issue on appeal is whether the parties agreed that Hinds would pay interest for the months of April, May and June of 1990.5 While this appears to be a straightforward issue, the case has some procedural and appellate history. Initially, the trial court denied Hinds' motion for summary judgment and entered an order granting summary judgment in favor of Johnston, awarding him $1,837.50. Both parties appealed from that judgment and another division of this Court affirmed in part, reversed in part and remanded for trial on the merits.6 Specifically, in that appellate opinion, this Court held "there exists genuine issues of material facts regarding whether [Hinds] satisfied the terms of their mortgage and whether [the Hinds] owe interest on their loan for the months of April, May and June of 1990."7
¶4 Upon remand, after non-jury trial,8 the trial court determined there was insufficient evidence to establish any agreement by the parties that Hinds would pay interest for any months prior to July 1, 1990. Upon a determination that Johnston's failure to release the mortgage was based upon a good faith belief that he had substantial grounds for contesting the fact of payment, the trial court, citing American Nat'l Bank v. Jorden, 1926 OK 509, 254 P. 706, refrained from imposing statutory penalties against Johnston for his refusal to release the mortgage.
¶5 "In a jury-waived trial, this Court must accord the judgment the same conclusive effect as if it were based upon a jury verdict. If there is any competent evidence which will support the judgment below, it must be affirmed." United Engines, Inc. v. McConnell Constr., Inc., 1980 OK 139, ¶4, 641 P.2d 1101, 1102. We do not "reweigh a trial court's finding of evidentiary fact, so long as supported by competent evidence in the record." Magnolia Pipe Line Co. v. Cowen, 1970 OK 223, ¶6, 477 P.2d 848, 850. "The credibility of the various witnesses and weight and value to be given to their testimony is for the jury or for the trial court on waiver of a jury, and conclusions there reached will not be disturbed on appeal, unless appearing clearly to be based upon caprice or to be without foundation." Livingston v. Bonham, 1957 OK 52, ¶13, 308 P.2d 657, 661.9
¶6 A review of the record, including the trial court's Journal Entry of Judgment, which contains detailed findings of fact and conclusions of law, reveals that competent evidence exists supporting the trial court's determination that Johnston failed to sufficiently substantiate his assertion that additional interest remained due for the months preceding July 1, 1990. The parties' loan agreement here was oral, and the evidence, including the parties' testimony at trial, reveal conflict on a number of facts as well as circumstances surrounding the agreement.10 Essentially, because documentary evidence of an agreement requiring interest payments in the months preceding July 1, 1990, was either lacking or insufficient, the trial court was tasked with deciding the issue based on the various witnesses' testimony and a determination of their credibility.
¶7 In view of the detailed findings and conclusions, it is clear that the trial court based its determination upon careful consideration of the evidence before it. Although the record may very well support a conclusion opposite that reached by the trial court, we will not reverse merely on that basis. See Stovall v. Liberty Plan of America, Inc., 1966 OK 83, 414 P.2d 242. Further, "the trial court's findings are to be given the same force and effect as the verdict of a properly instructed jury." Livingston, 1957 OK 52, ¶13, 308 P.2d at 661. The decision of the trial court that there was insufficient evidence to establish any agreement by the parties as to the payment of interest for any months prior to July 1, 1990, is certainly supported by the evidence. Accordingly, there was no error in determining the terms of the mortgage regarding payment have been fulfilled with no additional interest being owed.
¶8 Hinds counter-appeals on the singular basis that the trial court erred in its failure to impose statutory penalties against Johnston pursuant to 40 O.S. §15 in the sum of $70,000 for his refusal to release the mortgage. Hinds cites Nay v. First Financial Bank, 2003 OK CIV APP 91, 79 P.3d 1124, in an attempt to support the proposition that a mortgage holder should be held strictly liable for any violation of §15. Not only does Nay not support this proposition, but Hinds ignores longstanding Oklahoma Supreme Court precedent that a mortgagee's refusal to release a mortgage upon good faith belief of substantial grounds to contest the fact of full payment is not subject to the statutory penalty. See American Nat'l Bank v. Jorden, 1926 OK 509, 254 P. 706; Smith v. Colson, 1912 OK 216, 123 P. 149. In fact, Hinds fails to address the issue of whether Johnston's refusal to release the mortgage was premised upon a good faith basis. We refrain from disturbing the trial court's determination regarding Johnston's good faith grounds to contest the fact of payment. The trial court, as the fact-finder, was in the best position to determine whether Johnston had good faith belief of substantial grounds to contest the fact of payment underlying his failure to release the mortgage within the statutory time limits. No error is shown and the trial court's waiver of the statutory penalties against Johnston is therefore, affirmed.11
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See: http://www.oscn.net/applications/oscn/deliverdocument.asp?cite=2009+OK+CIV+APP+54
Outcome: ¶9 AFFIRMED.
Plaintiff's Experts:
Defendant's Experts:
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