Lewis v. Inman

429 P.3d 695

Dorrice LEWIS (formerly Sartin ), Plaintiff/Appellant,

v.Robert K. INMAN, Personal Representative of the Estate of Eddie Ray Inman, Defendant/Appellee.

Case No. 116,205

Court of Civil Appeals of Oklahoma, Division No. 2.

Decided: October 2, 2018

Mandate Issued: October 31, 2018

Wilfred K. Wright, Jr., WRIGHT LAW, PLC, Claremore, Oklahoma, and William R. Higgins, HIGGINS LAW, Claremore, Oklahoma, for Plaintiff/Appellant

Sidney K. Swinson, Brandon C. Bickle, GABLEGOTWALS, Tulsa, Oklahoma, for Defendant/Appellee

JANE P. WISEMAN, PRESIDING JUDGE:

¶ 1 Plaintiff Dorrice Lewis (formerly Sartin) appeals from orders of the trial court granting summary judgment in favor of Defendant Eddie Ray Inman and denying her motion to reconsider. We are asked to consider whether granting summary judgment in favor of Inman was proper and whether it was an abuse of discretion then to deny Lewis's motion to reconsider. This appeal proceeds according to Oklahoma Supreme Court Rule 1.36, 12 O.S. Supp. 2017, ch. 15, app. 1, without appellate briefing. After review, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 In their March 5, 2013 petition, Lewis and Terry Lee Sartin (Plaintiffs)¹ allege they entered into an employment agreement with Inman on December 15, 2004, pursuant to which, "upon the payment of forfeitures and all expenses related therewith, and the release and expungement of all bonds or undertakings any balance in the Build Up Fund[ ] was to be disbursed fifty percent (50%) to Defendant [and] the remaining fifty percent (50%) to Plaintiffs." Plaintiffs demanded an accounting of the Build Up Fund and asserted claims for breach of contract and breach of fiduciary duty.

¶ 3 Inman filed an answer and counterclaim, stating that he is a licensed professional bondsmen who employed Lewis from December 2004 through December 2007 and Sartin from December 2004 through August 2007. He admitted there was a Build Up Fund and that the contract provided that it should be disbursed as claimed by Plaintiffs. He denied any funds are owed to Plaintiffs because they owed him money and they agreed to turn over the Build Up Fund to repay him. Inman asserted that although Plaintiffs executed a promissory note payable to Inman for $50,000 and a second mortgage to secure the note, Plaintiffs never made a payment and defaulted on the note. He claimed that, when the first mortgage holder, RCB Bank, sued to foreclose on the property secured by the mortgages, "the Plaintiffs contacted the Defendant about the foreclosure and made an agreement to have the Defendant release his mortgage and note ... in return for the transfer of all the [Plaintiffs'] claims to the build up fund." Inman says he relied on Plaintiffs' statements and released the mortgage. Inman asserted that, if the court finds against the terms of his agreement with Plaintiffs, it should grant him judgment against the Plaintiffs for $66,286.16, plus interest, costs, and attorney fees. Inman further claimed that Lewis owed him $3,932.72 for unpaid bond premiums and Sartin owed him $1,097.86 for a loan.

¶ 4 In her answer to Inman's counterclaims, Lewis denied she entered into an agreement for the release of the mortgage or that she owed him money for unpaid premiums.

¶ 5 Lewis filed a motion for summary judgment in which she claimed as undisputed the facts we now summarize and quote. Lewis entered into an employment agreement with Inman, who is a professional bondsmen licensed by the State of Oklahoma. Pursuant to Section 4.11 of the parties' written contract, "upon the payment of forfeitures and all expenses related therewith, and the release or expungement of all bonds or undertakings any balance in the Build Up Fund[ ] was to be disbursed fifty percent (50%) to Defendant the remaining fifty percent (50%) to Ms. Lewis." The money in the Build Up Fund was to be distributed to Lewis according to the contract's terms, but Inman refused to disburse the funds to Lewis. Lewis filed a bankruptcy petition in Arizona on November 2, 2008, and she listed Inman as a creditor on the note and mortgage. The Bankruptcy Court entered an order on March 23, 2009, "[d]ischarging all debts and thereby permanently enjoining any listed creditor from taking action against Ms. Lewis related to the debts identified therein." Inman filed his counterclaim in this action on April 5, 2013, "claiming Ms. Lewis is indebted to the Defendant for this Note and Mortgage that was included in the bankruptcy estate." Lewis stated that a true and correct accounting of the Build Up Fund as attached to her motion shows Inman owes her $460,971.

¶ 6 Inman also filed a motion for summary judgment alleging the following as undisputed facts. Both Plaintiffs were Inman's employees. Lewis was employed as a bail bond agent beginning December 15, 2004, and ending December 2007 when she moved to Arizona. The parties' employment agreement "provided that the Plaintiffs retain 55% of the premium, remit 35% to the Defendant, with the remaining 10% to be held in a ‘build up’ fund to be held for bail bond forfeitures and costs of apprehension of defendants who did not appear." Plaintiffs' bankruptcy petition, filed in the United States Bankruptcy Court, District of Arizona, "did not disclose any claims against the Defendant nor any interest in the ‘build up’ fund." Inman said, "The [Plaintiffs'] bankruptcy was a no asset case ... and the Plaintiffs were discharged on the 23rd day of March, 2009."

¶ 7 Inman asserted "Plaintiffs are estopped from pursuing any claims against [him] due to the failure to disclose any claims in the petition for bankruptcy." He also asserted, "The Plaintiffs are not the proper party in interest to pursue this action" because the real party in interest is the bankruptcy trustee.

¶ 8 After Inman died on November 22, 2013, Robert Kenneth Inman was appointed personal representative of his estate and was substituted in that capacity as the party defendant on December 19, 2014.²

¶ 9 In a separate response to Lewis's summary judgment motion, Inman says Lewis in her motion claimed an erroneous amount in controversy owed to her in the Build Up Fund. Inman says the amount in the Build Up Fund in which Lewis can claim an interest, after totaling the bond premiums collected, applying the 10% going to the Build Up Fund, and deducting half the cost of bond forfeitures and apprehension costs, is $30,575.97. Inman in his response does not specifically identify which facts are controverted in Lewis's statement of undisputed facts as required by Rule 13, Oklahoma District Court Rules, 12 O.S. Supp. 2013, ch. 2, app.³

¶ 10 In her response to Inman's motion for summary judgment, Lewis also fails to admit or deny Inman's statement of undisputed facts. She does set out her own list of facts she claims are in dispute, many of which are the same facts she claimed were undisputed in her motion for summary judgment.

¶ 11 We now summarize and quote the facts she claims are in dispute. Section 4.11 of the contract provides that any balance in the Build Up Fund was to be disbursed fifty percent to Inman and fifty percent to Lewis. "[T]he Build Up Fund should have been distributed according to the terms of the contract," but Inman refused to pay Lewis the funds he owed her. She filed a bankruptcy petition in the Bankruptcy Court for the District of Arizona and listed Inman as a creditor for the note and mortgage. The Bankruptcy Court discharged her debt on March 23, 2009, "thereby permanently enjoining any listed creditor from taking any action against Ms. Lewis related to the debts identified therein." Inman filed his counterclaim on April 5, 2013, in which he claimed Lewis was indebted to him for the note and mortgage. "Inman was aware of the facts surrounding the accounting of the fund. (Monies and the account were in his possession; so he knew or should have known.)" Although "Inman was a trustee to Ms. Lewis of the funds he held," he "failed to disclose the account of the build-up fund to Ms. Lewis, failed to disclose the account of the build-up fund to the bankruptcy trustee and failed to disclose the build-up fund account to the bankruptcy court." When Lewis filed bankruptcy, she "had no knowledge of the amount of money in the buildup fund, or if there was any money in the build up fund." "The documents currently being used to determine the amount of monies owed were a result of the present lawsuit and uncovered in discovery of the financial information that was never disclosed by Eddie Inman to me prior to the bankruptcy." Inman never disclosed the Build Up Fund to her or the Bankruptcy Court even though he had full knowledge of the money in the Build Up Fund. Although Inman was the trustee of the Build Up Fund and had full knowledge and control of the amount of money in the Build Up Fund, he failed to account for the fund to her, the bankruptcy court, or the trial court in this action.

¶ 12 Lewis explained her claim: (1) "[a]ll bonds written had to be reported to the Insurance Department in Oklahoma City, Ok.;" (2) "[t]he Rogers County District Court had to report the same and the reports had to match;" (3) "[t]he bond would be written by power of attorney on Eddie Ray Inman for the face amount of the bond (the entire amount)"; (4) and "[t]he client would pay the bondsmen a percentage (10-15%) called a premium" and ten percent "of the premium was paid to Mr. Inman to go into the Build-up Fund." The Build Up Fund was intended to cover bond forfeitures, and if a forfeiture occurred, the bondsman then had to return the defendant within 90 days or forfeit the amount of the bond on the 91st day. If that happened, "[t]he bondsman had an additional 89 days in which to return the defendant to the jurisdiction of the court to file a motion to receive a remitter." A bondsman's liability on a bond continues until it is exonerated. "When all bonds were exonerated, by agreement with Mr. Inman the build-up fund would be released to the bondsman." Lewis...