Shela Wall v. Tonya L. Fisher

Shela Wall sued Tonya L. Fisher seeking the court's assistance in partitioning property in which she and the Defendant claimed an interest assert the following:

1. That the Plaintiff and Defendant are the sole owners as Joint Tenants with Rights of Survivorship, and each of them is exercising control and is asserting possession in and to, Oklahoma County, State of Oklahoma, to-wit: Crutcho Gardens Subdivision, Block 5, Lots 1 and 2 Herinafter "Subject Property.”

2. That the Subject Property is owned and held in undivided shares and proportions as follows: Shela Wall: 100% undivided interest, Joint Tenancy Tonya Fisher: 100% undivided interest, Joint Tenancy

3. That no other person has any interest or lien in, to, or upon the Subject Property, and that the Plaintiff believes that the Subject Property is not capable of being divided in kind in-partition.

VALUATION AND DIVISION OF PERSONAL PROPERTY

4. That the Plaintiff and Defendant are co-owners of certain other personalty which should be valued and divided between the parties.

5. Said personalty to be valued and divided includes the following, to-wit:

a. 1992 Seadoo GTX

ft 1992 Shoreline Trailer

c. 1992 Bomabardier Boat

d. 1994 Geo Prizm LSI

e. 1997 Pontiac GTP

f. Tinker Federal Credit Union Account ending 8333

f. Tinker Federal Credit Union Account ending 5498

g. 2000 Nissan Xterra

h. Desk

i. Refrigerator

j. 7 Piece Bedroom Suite

k. Marble Coffee Table

1. Marble Plant Stand

m. 3.7 Amp Orbital Jigsaw with Case

n. 8 Piece Victorian Sampler Bedroom Suite

o. Treadmill

p. Weight Bench

6, That the personalty is owned and held in undivided shares and proportions as follows:

Shela Wall: 50% undivided interest

Tonya Fisher: 50% undivided interest

7. That no other person has any interest or lien in, to, or upon the personalty, and that the Plaintiff believes that the personalty is not capable of being divided in kind in-partition.

WHEREFORE, Plaintiff prays (1) that a date, time, and location .ertain be appointed for hearing this petition, (2) that notice to the Defendant, and to other interested parties, of the hearing be given, (3) that upon hearing the petition, the Court order and decree (a) that the interest of the Plaintiff and Defendant, and other parties, be determined to be as herein set forth, (b) that partition of the Subject Property be made according to such interests, (c) that the Court appoint three (3) commissioners (i) to determine whether the Subject property can be divided between the parties, without doing manifest injury (using owlety if necessary), and, if such division is possible to describe the parcels, and any necessary owelty, and (ii) if such division is not possible, then to appraise the Subject property, (4) that the Court order such division in kind by rdenng a sheriffs deed, including any necessary adjustment due to owelty, or, if such division in kind is not possible, to offer the land to the owners at the appraised value, and, if none, or if several, of such owners want to acquire the whole of the Subject Property at such price, then to order a sale, (5) that the Court provide such other order and relief as may be proper, and (6) that the costs, attorney's fees and expenses which may accrue in this action be apportioned among the parties according to their respective interests in the land and paid from the proceeds of sale, if the land is sold and, if the land is not si 'ld, but is partitioned in kind, that a lien for a proportional share of such costs, attorney's fees and expenses be imposed on each party's respective interests in the Subject Property, in favor of the other party, and be made subject to immediate foreclosure, if such amounts are not pad promptly, as if such lien were a mortgage lien thereon. In addition, the Court is requested to provide additional or different relief, as it deems appropriate.

Defendant appeared and answered as follows:

1. That the Defendant has resided in the real property since she was fifteen (15) years old, and purchased the property from her parents in March 1996. From 1996 through 2001, Plaintiff moved in and out of the home numerous times, with never having paid anything toward the mortgage and maintenance of the property. Defendant concedes that Plaintiff may have occasionally paid a utility bill during this time.

2. That the parties entered into a verbal contract in 2001, wherein the Defendant agreed to add the Plaintiff's name to the deed in consideration of the Plaintiff making Defendant beneficiary on her retirement account and life insurance policy through Plaintiffs employment.

3. That the Plaintiff failed to comply with the agreement as to consideration for the conveyance of the property, in that Defendant did not make her beneficiary of any policy until 2010, and that was only to the retirement account. At no time has Defendant made Plaintiff beneficiary on her life insurance policy.

4. That Defendant transferred title to the property based on a promise of performance, which was not fully performed due Plaintiff's failure of consideration. 12(A) O.S. 3-303(a)(1)

5. That the parties further agreed that certain personal property would be transferred into joint ownership interests. The Defendant added Plaintiff to the titles to the 1992 Bombadier Boat (which was purchased new prior to 1996), 1994 Geo Prizm automobile, and the 1997 Pontiac automobile. The Defendant's name was on the title of Plaintiff's 2000 Nissan Xterra automobile due to the fact that Defendant was a co-signor on the Note. Plaintiff failed to add Defendant as a titled owner to her 1990 Boat (which is not listed in Plaintiff's Petition), for further lack of consideration and breach of contract.

6. That the Defendant has no issue with Plaintiff receiving the property items listed in paragraph 5(g), 5(h), 5(o), and 5(p), as those items were purchased by Plaintiff out of her own personal funds.

7. The Defendant either owned prior to the partnership, or purchased with her separate funds during, the property listed in paragraph 5(a), 5(b), 5(c), 5(d), 5(e), 5(i), 5(j), 5(k), 5(1), 5(m),and5(n).

8. The Plaintiff should be awarded her own personal bank account with Tinker Federal Credit Union. The Defendant should be awarded her own personal bank account with Tinker Federal Credit Union.

9. That, for the duration of the parties' partnership (from 1996-2011), the Plaintiff never contributed to the mortgage on the real property, nor did she ever contribute any expenses towards groceries and maintenance of the property. At most, Plaintiff contributed to some of the utilities each month from 2001 through 2011.

10. That due to the Plaintiff's breach of contract and failure of consideration, the Quit Claim deed should be vacated.

11. That further due to the Plaintiff's breach of contract, the Defendant should be awarded punitive damages in an amount in excess of $20,000.00.

12. That the Defendant should be awarded her attorney's fees in having to defend this action.

WHEREFORE, the Defendant, Tonya Fisher, having fully answered, prays that the Plaintiff takes nothing by way of her Petition; that the Quit Claim deed be vacated for failure of consideration; that the Defendant be dismissed with her costs and attorney's fees; and, such other and further relief this Court deems just and equitable.

Settled and dismissed with prejudice.