The Right to Trial and Summary Judgment in Probate Proceedings
By James C. Milton & Courtney L. Kelley
In the October 2013 issue of this journal, James C. Milton and Travis G. Cushman wrote that, “without much fanfare,” in Shamblin v. Beasley,1 the Oklahoma Supreme Court “identified a state constitutional right to trial in equitable actions.”2 This was an important pronouncement for attorneys handling matters in probate and other equitable proceedings.
The Shamblin court’s decision was important for many reasons. Mr. Shamblin had purchased Mr. and Mrs. Beasley’s homestead at a tax sale. Mr. Shamblin then sued the Beasleys and their mortgage lender to quiet title and to eject the Beasleys from their home. Mr. and Mrs. Beasley and their lender sued to cancel the tax deed on the basis that the county had given insufficient notice of the tax sale. District Judge Sam Fullerton gave summary judgment to Mr. Beasley. On certiorari, the Oklahoma Supreme Court held that notice upon Mr. and Mrs. Beasley was proper, but that the lender had raised sufficient fact issues to force a trial on sufficiency of notice of the tax sale.
SHAMBLIN AS PART OF OKLAHOMA’S SUMMARY-JUDGMENT JURISPRUDENCE
In addition to its treatment of the due process requirements for notices of tax sales, the decision in Shamblin represented part of a trilogy of decisions outlining the differences existing at that time between Oklahoma law and federal law regarding summary-judgment standards.3 For the first time with a clear majority of the court, Justice Opala again pronounced his standard for summary adjudication: “Summary process – a special procedural track to be conducted with the aid of acceptable probative substitutes – is a search for undisputed material facts that would support but a single inference which favors the movant. It is a method for identifying and isolating non-triable fact issues, not a device for defeating the opponent’s right to trial. Only that evidentiary material which entirely eliminates from testing by trial some or all material fact issues will provide legitimate support for nisi prius use of summary relief in whole or in part.”4 This standard has been subject to erosion, in the form of the enactment of Section 2056 of the Oklahoma Pleading Code as well as recent decisions that appear to adopt the federal summary-judgment standard. However, it has yet to be expressly overruled.5
By coincidence, Shamblin also provided the Oklahoma Supreme Court’s first express acknowledgment of the right to trial in equitable – nonjury – proceedings. This acknowledgment is apparent in several ways. First, Justice Opala changed his phraseology, in his description of the summary-adjudication standard, from “right to trial by jury” to “right to trial.”6 The Shamblin court also provided express acknowledgment that “[s]ummary process applies in a like manner to issues that are tendered in legal as well as in equitable claims (or counterclaims).”7 Even though its treatment of the issue was both brief and without fanfare, the Shamblin court’s identification of the right to trial in equitable proceedings cannot be overstated.
LIMITATIONS ON THE RIGHT TO JURY TRIAL
Oklahoma provides a constitutional right to trial by jury.8 This right serves as one of the cornerstones of Oklahoma’s court system. In dissenting decisions predating Shamblin, and in two majority opinions following Shamblin, the right to trial by jury provided the apparent foundation of Justice Opala’s standard for summary adjudication.9 The right to a trial by jury impacts all aspects of the court system, from dispositive motions to the enforceability of arbitration provisions and the cost and time involved in resolving disputes. Some litigants take comfort in knowing they can explain their dispute to a jury of their peers. Other litigants experience fear and discomfort from the cost and uncertainty associated with jury trials.
Not all litigants enjoy the right to a trial by jury. Oklahoma courts have long held that there exists no right to a jury trial in equitable proceedings.10 The trial court may, in its discretion, submit an equitable issue to a jury for an advisory determination, but only the trial court itself holds the authority to decide the equitable issues.11 Likewise, under federal law, “[i]t is well established that no jury trial is required where an action is in equity or where, as here, the action is brought pursuant to statute, where no analogous common law right or remedy previously existed.”12 This standard is based on the text of the Seventh Amendment to the U.S. Constitution, which provides that, “[i]n suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.”13
OPEN ACCESS TO COURTS AND THE RIGHT TO TRIAL
With Shamblin, the Oklahoma Supreme Court has acknowledged that, even when the litigant does not have the right to force a trial before a jury of his or her peers, the litigant retains a right to have his or her day in court – an evidentiary hearing or some other form of trial. Under federal law, the right of access to courts derives from the Fifth Amendment to the U.S. Constitution.14 Due process requires notice and an opportunity to be heard,15 but “due process requirements are highly flexible, with the nature of the proceeding determining whether a full trial-type hearing or something less is necessary.”16 “The due process clause does not guarantee to the citizen of a state any particular form or method of state procedure.”17 Rather, “[t]he type of hearing required must be appropriate to the nature of the case.”18
Oklahoma’s right to trial might derive from any or all of several provisions of the state constitution. Oklahoma’s Constitution contains a state constitutional right to due process of law.19 Oklahoma’s Bill of Rights also grants a right to “open access to courts.”20 Because Justice Opala’s decisions tie the rights together through alternating phrases,21 one might even argue that the right to trial derives implicitly from the constitutional provision granting the right to jury trial.22 In addition to these provisions of the state’s Bill of Rights, the state constitution provides that “[t]he District Court shall have unlimited original jurisdiction of all justiciable matters …”23
If the federal Due Process Clause provides support for the federal right of access to courts,24 then Oklahoma’s specific “open access”25 provision adds extra strength to any such right that might be derived from Oklahoma’s own Due Process Clause.26 Indeed, Oklahoma’s case law on open access shows that the right receives frequent attention and great protection from the Oklahoma Supreme Court.27 In Zeier v. Zimmer, Inc., the Oklahoma Supreme Court held that “[a]ccess to courts must be available to all through simple and direct means and the right must be administered in favor of justice rather than being bound by technicalities. Claimants may not have the fundamental right of court access withheld for nonpayment of some liability or conditioned on coercive collection devices.”28 The Zeier court struck a new statutory provision imposing the requirement of an expert’s affidavit of merit as a condition of filing a medical malpractice claim, because it “create[d] an unconstitutional monetary barrier to the access to courts …”29
While the litigant enjoys the right to trial and the other due-process accouterments that accompany trial, the civil litigant cannot force a confrontation at trial with an adverse witness. “Denial of the right of cross-examination may constitute a denial of due process,”30 but this right is distinct from the right to confront the witness at trial31 – a right that is exclusive to criminal proceedings.32 In Smith v. Smith, a California defendant received notice of reciprocal enforcement in California of an award issued through child-support proceedings initiated in Connecticut. In California, the defendant received a right to show cause why the Connecticut award should not be enforced. He invoked that right and received a trial, attempting to prove the Connecticut award was obtained by fraud. On appeal, the defendant complained that the California court received testimony in the form of Connecticut proceedings in which the Connecticut judge examined the plaintiff without the defendant present. The defendant claimed that this procedure violated his right to cross examine the plaintiff at trial. The California Court of Appeals held that the defendant did not hold a right to confront his opponent at trial, but that he did enjoy the right to cross examine opposing witnesses. The defendant’s right of cross examination could have been exercised through deposition, after he received notice of the California proceedings.
THE RIGHT TO TRIAL IN THE CONTEXT OF PROBATE PROCEEDINGS
Oklahoma probate and equitable proceedings present a range of types of “cases” for purposes of analyzing the right to trial. These various types of cases stem from the fact that “[a] probate proceeding is not a suit or action of a civil nature which is cognizable as a case at law or in equity. Probate is a special statutory proceeding, controlled by the probate code, which moves along a procedural track vastly different from that followed by a regular civil action.”33
The two most important trials in probate procedure, of course, are will contests34 and personal representatives’ accountings.35 The Oklahoma Probate Code also contemplates trials or evidentiary hearings regarding concealment or embezzlement of estate assets36 and other issues.37 For example, in 2006, the Oklahoma Court of Civil Appeals affirmed the outcome of a trial addressing whether a claimant, born two months after her parents’ divorce, was an heir-at-law of her father’s and paternal grandparents’ estates.38 The trial also addressed whether the claimant or another heir would be appointed as personal representative.39 Indeed, trials are not uncommon on the issue of selection of personal representative for an estate.40 Similar issues abound in guardianship and trust proceedings.
At first glance, the due-process standards for probate proceedings appear to be set at a lower level than, say, proceedings for money damages based on contract or tort. While probate citations41 must be served in the same manner as civil process,42 other notices in probate proceedings are held to a lower statutory standard.43 With limited exceptions, the Oklahoma Probate Code is not made expressly subject to the Oklahoma Pleading Code or other Oklahoma procedural rules.44 Oklahoma’s pretrial conference procedures appear implicitly to allow for nonjury proceedings to be exempted from the requirement of a pretrial order.45
It also might be said that probate law is more stringent when it comes to giving notice and holding hearings. “Due notice and hearing” are prerequisites for a valid and binding probate decree distributing property to the estate’s heirs, devisees or legatees.46 The probate court holds a duty to hold the required hearing and determine “who are the beneficiaries, the part to which each is entitled, and the nature and extent of their interest in the estate; and in so doing it has jurisdiction to construe and interpret the will under which the property is distributed.”47
With the right to trial and related due-process rights firmly entrenched in Oklahoma law governing probate and other equitable proceedings, it is worth examining the scope of this right. It is evident that a person claiming an interest in a trust, guardianship estate or probate estate is entitled to notice and an opportunity to be heard. One would expect the right to cross examine witnesses will cross over into the probate arena.48 In probate proceedings, the parties hold a right to receive findings of fact and conclusions of law in support of any entry of judgment following trial.49
SUMMARY JUDGMENT IN PROBATE PROCEEDINGS
One might also ask whether the right to trial in probate and related proceedings would eliminate the availability of summary judgment altogether – if it is available at all. Rule 13 of the Rules for District Courts might be viewed as inapplicable to probate proceedings.50 Likewise, Section 2056 of the Oklahoma Pleading Code would appear to be similarly limited in its scope of application.51 However, Oklahoma courts have held that summary judgment procedures may apply even in proceedings not expressly subject to summary judgment rules.52
Despite a brief hiccup in the form of a 2006 decision from the Court of Civil Appeals,53 courts have consistently allowed summary-judgment procedures within Oklahoma probate proceedings. In 1976, the Oklahoma Supreme Court affirmed a trial court decision granting a “motion for declaratory judgment” on whether a testator’s daughter would be treated as a pretermitted heir.54 Carolyn Gay Ghan requested “declaratory judgment” determining her to be a pretermitted heir under her father’s will. There was no dispute that she was not named in her father’s will. Both the trial court and the Supreme Court determined that extrinsic evidence could not be offered to show that the omission was intentional. The court determined the trial court appropriately applied summary-judgment standards, finding that “since there is only a question of law to be determined, a summary judgment by the Trial Court was proper.”55 Ms. Ghan was granted pretermitted heir status as a result of the summary judgment entered by the trial court and affirmed by the Supreme Court.
In 1999, the Oklahoma Court of Civil Appeals affirmed a summary judgment against Holly White, who claimed to be an out-of-wedlock granddaughter of the decedent.56 Ms. White’s alleged father had died years earlier. Fearing a claim of inheritance from Ms. White, the decedent, Gertrude Jo Geller, added to her will a “forced heirship and will contest” clause, providing: “I hereby direct that should there be anyone not herein specifically or indirectly mentioned or provided for who would inherit a portion of my estate had I not executed this Will, such person or persons shall receive One Dollar ($1.00) as his, her or their sole and entire inheritance from me.” The trial court never reached the forced heirship clause, finding instead that Ms. White could not establish the requirements of the Oklahoma statute dealing with children born out of wedlock.57 On this basis, the court affirmed summary judgment against Ms. White on her counterclaim for determination of heirship.
In 2002, the Oklahoma Court of Appeals overturned a summary judgment against James E. Richardson, who sought an omitted child’s share from the estate of his father.58 The executor moved for summary judgment on the basis that the father intentionally omitted his son in an amendment to a pour-over trust executed after the father’s will. The trial court found no issue of material fact and found for the executor. On appeal, the Richardson court approved, at least implicitly, of the use of summary procedure in a probate proceeding.59
Based on the decisions in Glomset, Geller and Richardson, it appeared Oklahoma appellate courts were in agreement regarding the applicability of summary judgment in a probate proceeding. But in early 2006, the Oklahoma Court of Civil Appeals issued an opinion directly at odds with these earlier cases.60 This jurisprudential “hiccup” would be short lived. In April 2006, just two months after rehearing was denied in Davis, the Oklahoma Supreme Court in Jernigan v. Jernigan affirmed summary judgment on a replevin claim that had been brought within a probate proceeding.61
Since Jernigan, the courts have consistently allowed summary-judgment procedures within Oklahoma probate proceedings.62 In February of this year, the Oklahoma Court of Civil Appeals affirmed the denial of summary judgment filed by Beverly Eagleton, who claimed entitlement to a forced share of certain property (farm) from her deceased husband’s estate and a surviving spouse allowance.63 Mr. Eagleton died in 2014. In February 2015, Mrs. Eagleton, who was still living at the farm, filed suit seeking to have a 2012 deed transferring the farm to Mr. Eagleton’s daughter declared void; seeking a forced probate distribution of the Farm as estate property; seeking a surviving spouse allowance payment from the estate assets; and seeking to establish a homestead right of residence at the farm. Ms. Eagleton moved for summary judgement on these issues. The trial court denied the motion. On appeal, the Oklahoma Court of Appeals applied the summary judgment standard of review in affirming the denial of summary judgment on some issues.64
In Oklahoma, as demonstrated by Shamblin, statutory and decisional law does impose limits upon those instances where litigants may obtain judgment relying solely on affidavits, based upon state rights to trial or access to courts. These limitations have gradually eroded, based in part on changes at the Oklahoma Supreme Court and the enactment of Section 2056 of the Oklahoma Pleading Code.
IMPACT OF THE RIGHT TO TRIAL ON MEDIATION AND ARBITRATION
Emerging trends in estate planning appear to favor the use of mediation or arbitration provisions in wills and trust instruments to resolve challenges and other disputes arising in connection with succession or the fiduciary relationships arising from these instruments. The right to trial in probate and trust disputes could stand in the way of some of these alternative-dispute-resolution mechanisms.
Outside the trust and probate arena, the Oklahoma Supreme Court rejected an open-courts challenge against arbitration provisions.65 “In this case the Legislature has said you may agree to arbitrate your dispute, and once you have done so, the courthouse door stands open to you if you have been the victim of fraud, bias, excess of power, or unfair procedure. Those things are now the ‘wrong’ for which you have a judicial remedy.”66
In the probate and trust arena, the Oklahoma Court of Civil Appeals reached a different conclusion. In Clark v. Clark,67 the trustee entered into a custodial agreement with Merrill Lynch containing an arbitration provision. When the trust’s beneficiary sued both the trustee and Merrill Lynch for breach of fiduciary duty, Merrill Lynch moved to compel arbitration. The trial court confirmed an arbitration award in favor of Merrill Lynch and its employees. The Court of Civil Appeals reversed, holding that the beneficiary could not be bound by the arbitration agreement because he was not a party to it. “It further cannot be said that Plaintiff waived his constitutional right to access to the courts because he did not voluntarily or intentionally relinquish said right.”68 Thus, while courts in other jurisdictions allow mandatory arbitration in probate and trust disputes,69 Oklahoma’s right to trial would prevent such a result absent agreement by all parties to the dispute.70
OTHER SIMILAR EQUITABLE PROCEEDINGS
As discussed above, Shamblin provided the Oklahoma Supreme Court’s first express acknowledgment of the right to trial in equitable – nonjury – proceedings. The Shamblin court also provided express acknowledgment that summary process applies to issues tendered in legal as well as equitable claims.71 Summary process has been used in trust proceedings72 and actions involving child support73 and replevin.74 However, it remains unclear whether summary process applies to all proceedings of equitable cognizance. For in-stance, the authors are not aware of any summary judgment cases in proceedings governed by the Oklahoma Guardianship and Conservatorship Act.75 The right to trial clearly applies in guardianship proceedings,76 but the infrequency or absence of summary judgment in such proceedings may be tied to the heightened due-process rights associated with guardianship and conservatorship.
The Oklahoma Supreme Court’s decision in Jernigan may be a good example of summary proceedings in both probate and nonprobate equitable proceedings. There, the court affirmed summary judgment on a replevin claim that had been brought within a probate proceeding.77 Rose Marie Jernigan died testate in 1996, leaving three sons and one daughter. Mrs. Jernigan’s estate consisted only of personalty, including jewelry. Rather than bring a probate, the heirs agreed to distribute the jewelry among themselves. Eight years later, Mrs. Jernigan’s son initiated a proceeding to probate Mrs. Jernigan’s estate. Shortly before the probate was filed, Jana Jernigan, wife of James Jernigan (wife or donee), had commenced divorce proceedings against James Jernigan (husband or donor), one of Mrs. Jernigan’s sons. In the divorce case, the wife claimed as her separate property jewelry she had received as a gift from her husband during the marriage. Some of that jewelry had belonged to Mrs. Jernigan. The personal representative brought in probate a replevin action against the divorcing wife for the return of the jewelry. The district court granted summary judgment to the wife. On appeal, the Oklahoma Supreme Court approved of the use of summary procedure in the probate and replevin proceeding and applied the summary judgment standard of review in its analysis.78
Litigants who rely on the right to trial by jury in resisting summary judgment might find comfort in Shamblin and its invocation of the right to trial in equitable proceedings as imposing the same or similar limitations on summary process. The right to trial is an important part of the “procedural track” that makes probate and other equitable proceedings so unique. Litigants seeking to challenge the admission of a testamentary instrument or a fiduciary’s accounting can demand the trial court to grant them a trial on their issues. At the same time, though, trial courts reviewing summary-judgment motions in such proceedings can take comfort that the summary procedure applies in probate and equitable proceedings with much the same standards as civil proceedings.
1. 1998 OK 88, 867 P.2d 1200.
2. James C. Milton & Travis G. Cushman, “What Happens Now? Weighing Section 2056, the Federal Anderson Trilogy Standard and the State Constitutional Right to Trial,” 84 Okla. Bar J. 2105, 2107 (2013).
3. Milton & Cushman, supra at 2107.
4. Shamblin, 1998 OK 88, ¶9, 867 P.2d at 1207 (emphasis added; footnote omitted).
5. Shamblin was followed on this issue as recently as 2016, when the Oklahoma Court of Civil Appeals quoted paragraph 9, including the language acknowledging the right to trial, and reversed summary judgment on the issue of damages in a case brought under the Telephone Communication Protection Act, 47 U.S.C. 227 et seq., as amended by the Junk Fax Protection Act. Ketch, Inc. v. Royal Windows, Inc., 2016 OK CIV APP 77, ¶26, 385 P.3d 994, 1000.
6. Compare Polymer Fabricating, Inc. v. Employers Workers' Compensation Ass’n, 1998 OK 113, ¶7, 980 P.2d 109, 112, and Akin v. Missouri Pacific Railroad Co., 1998 OK 102, ¶7, 977, P.2d 1040, 1043 (both using the phrase, “right to trial by jury”), with Shamblin, 1998 OK 88, 867 P.2d at 1208 (substituting the phrase, “right to trial”).
7. Shamblin, 1998 OK 88, ¶9, 867 P.2d at 1208.
8. Okla. Const. Art. 2, §19. Article 2, Section 19 provides that, with certain exceptions as to amount in controversy, “[t]he right of trial by jury shall be and remain inviolate …” Id.
9. Williams v. Tulsa Motels, 1998 OK 42, ¶19, 958 P.2d 1282, 1289-90 (Opala, J., dissenting); Weldon v. Dunn, 1998 OK 80, ¶15, 962 P.2d 1273, 1280-81 (Opala, J., dissenting); Polymer Fabricating, Inc. v. Employers Workers' Compensation Ass’n, 1998 OK 113, ¶7, 980 P.2d 109, 112; Akin v. Missouri Pacific Railroad Co., 1998 OK 102, ¶7, 977, P.2d 1040, 1043.
10. Waggoner v. Johnston, 1965 OK 192, 408 P.2d 761, 766 (interpleader); In re Bank of Earlsboro, 1964 OK 97, 391 P.2d 887, 888 (“It is well established by the opinions of this court that in an equitable action, trial by jury is not a matter of right.”) (bank receivership); Dowdy v. Clausewitz, 1961 OK 90, 361 P.2d 288, 290 (partnership accounting); Steinway v. Griffith Consol. Theatres, 1954 OK 156, 273 P.2d 872, 877 (“[I]t is an established rule in this jurisdiction that [i]n an equity cause a party is not entitled, as a matter of right, to a trial by jury” (internal quotations omitted)) (stockholder derivative suit); Hall v. Williams, 1951 OK 91, 229 P.2d 584, 585 (will contest); Russell v. Freeman, 1949 OK 256, 214 P.2d 443, 444 (holding no right to jury trial in action to enforce judgment where title issues predominated). Existence of the right to jury trial depends, though, on the character and nature of the action. For example, a jury is available in suits on rejected creditor claims. Channel v. Mackey, 1959 OK 198, 345 P.2d 870, 871. Likewise, in a suit by an executor to recover property embezzled from the decedent’s estate prior to the executor’s appointment, the defendant holds the right to demand a jury. Okla. Stat. tit. 58, §294. See also id. §709 (“All issues of fact joined in a probate proceeding must be tried by the court …”).
11. Teachers' Conservative Inv. Ass'n v. England, 1926 OK 27, 243 P. 137, 138. See also Okla. Stat. tit. 12, §557 (containing mandatory language providing for trial of “all other” issues to the court, but allowing reference to a jury).
12. Hodgson v. Stewart In-Fra-Red Commissary, Inc., 370 F. Supp. 503, 504-05 (E.D. Pa. 1973) (emphasis added) (holding that defendants were not entitled to a jury trial in an enforcement action brought under the federal Fair Labor Standards Act).
13. U.S. Const. 7th Am. (emphasis added).
14. Gillespie v. Civiletti, 629 F.2d 637, 641 n.2 (9th Cir. 1980) (holding that the Fifth Amendment right to access to courts can serve as a basis for a Bivens-type private cause of action).
15. “[Due process] requirements are satisfied if [the party] has reasonable notice and reasonable opportunity to be heard and to present his claim or defense; due regard being had to the nature of the proceeding and the character of the rights which may be affected by it.” Dohany v. Rogers, 281 U.S. 362, 369 (1930).
16. Coral Gables Convalescent Home, Inc. v. Richardson, 340 F. Supp. 646, 650 (S.D. Fla. 1972). In its decision, the Coral Gables court required findings and conclusions – a requirement that appears in some instances in the Oklahoma Probate Code.
17. Dohany, 281 U.S. at 369. See also Smith v. Smith, 270 P.2d 613, 622-23 (Cal. App. 1954) (addressing whether a litigant can prevent the offer of testimony taken in courts of another sovereign).
18. Coral Gables, 340 F. Supp. at 650 (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)). See also Dohany, 281 U.S. at 369 (noting importance of “the character of the rights which may be affected”). The Dohany court rejected a due process challenge against a Michigan procedure for condemnation proceedings in which the landowner was not afforded 1) a right to trial by jury, 2) a right to recover attorney fees, or 3) a right to appeal by right as opposed to appeal by certiorari.
19. “No person shall be deprived of life, liberty, or property, without due process of law.” Okla. Const. Art. 2, §7.
20. “The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice.” Okla. Const. Art. 2, §6.
21. See supra note 6.
22. “The right of trial by jury shall be and remain inviolate …” Okla. Const. Art. 2, §19.
23. Okla. Const. Art. 7, §7.
24. Gillespie, 629 F.2d at 641 n.2.
25. Okla. Const. Art. 2, §6.
26. Okla. Const. Art. 2, §7.
27. The Oklahoma Supreme Court has addressed the “open access” provision on multiple occasions in the last two decades. Lee v. Bueno, 2016 OK 97, ¶30, 381 P.3d 736, 747; Zeier v. Zimmer, Inc., 2006 OK 98, ¶26, 152 P.3d 861, 873; C&L Enters., Inc. v. Citizen Band Potawatomi Tribe, 2002 OK 99, ¶¶10-12, 72 P.3d 1, 4; Rollings v. Thermodyne Indus., Inc., 1996 OK 6, ¶34, 910 P.2d 1030, 1036.
28. Zeier, 2006 OK 98, ¶26, 152 P.3d at 873.
29. Id. In 2016, the court declined to strike as unconstitutional Okla. Stat. tit. 12, §3009.1, which limits the admissibility of costs of medical treatment in personal injury actions. Lee v. Bueno, 2016 OK 97, ¶30, 381 P.3d at 747.
30. Smith v. Smith, 270 P.2d 613, 622 (Cal. App. 1954).
31. “A defendant in a civil action or special proceeding is not guaranteed a right of confrontation at the trial of the action or proceeding.” Smith v. Smith, 270 P.2d at 622.
32. U.S. Const. 6th Am.
33. In re Estate of Davis, 2006 OK CIV APP 31, ¶27, 132 P.3d 609 (emphasis added). See also Jernigan v. Jernigan, 2006 OK 22, ¶17, 138 P.3d 539; Wilson v. Kane, 1993 OK 65, ¶6, 852 P.2d 717, 721 (same). The difference in procedure between civil actions and probate proceedings can be seen in the inapplicability of Okla. Stat. tit. 12, §994(A) to probate proceedings. See Williams v. Mulvihill, 1993 OK 5, n.27, 846 P.2d 1097, 1104 n.27 (holding that Section 994(A)’s predecessor, Okla. Stat. tit. 12, §1006, is inapplicable to determining appealability of probate decrees).
The Davis court rejected the availability of summary judgment in probate proceedings. This rejection was criticized by the Oklahoma Court of Civil Appeals in In re Estate of McGahey, 2015 OK CIV APP 21, 359 P.3d 1157. As shown in this article, the Davis court’s rejection of summary judgment in probate proceedings is incorrect.
34. Okla. Stat. tit. 58, §41.
35. See, e.g., id. §545 (providing for examination of personal representative regarding accounting exhibits presented to court); id. §555 (providing for proceedings on contested accounting).
36. Id. §294.
37. Id. §27.
38. In re Estate of Watson, 2006 OK CIV APP 55, ¶1, 135 P.3d 853, 854.
40. See, e.g., Wyche v. Wyche, 1961 OK 211, 365 P.2d 993, 995. In Wyche, the Oklahoma Supreme Court described an all-too-common trial-court battle over whether to appoint the decedent’s widow or his son’s nominee as personal representative of an estate involving business interests and an antenuptial agreement.
41. Citations may not be required by statute on all contested matters, but citations represent the default method of notice when personal service is required. Okla. Stat. tit. 58, §706 (“When a personal notice is required, and no mode of giving it is prescribed in this chapter, it must be given by citation”). In various specific statutes, the Oklahoma Probate Code requires that citations must be issued to personal representatives, heirs, devisees and legatees upon any post-admission will contest, id. §62; to personal representatives on a claim of insufficient bond; id. §§180, 184; upon a petition for revocation of letters of administration, id. §§135-137; upon claims of embezzlement from probate estates, id. §293; upon a complaint that distribution should be effected, id. §625. Notably, the provisions for a will contest taking place before admission of the will do not expressly require issuance and service of a citation. Id. §41.
42. Id. §705.
43. See id. §§25, 34. These lower notice requirements would apply to preadmission will contests. See id. §41. When in doubt, though, use a process server.
44. Execution of judgments, though, may occur in the same manner as civil actions. Id. §§597, 709. At least in will contests, depositions may occur in the same manner as in civil proceedings. Id. §43. Hearings on sale of lands owned by “full-blood Indians” may be heard in the same manner as civil actions. Id. §903. Mortgages may be foreclosed in the manner provided in civil procedure statutes. Id. §333. The provisions of the Probate Code, which are themselves ancient, also incorporate ancient Oklahoma standards for demurrer. Id. §41. (Demurrer is long since repealed).
45. “The judge is not required to hold pretrial conference in cases where jury has been waived but he may do so.” Okla. Dist. Ct. R. 5(A).
46. Oberlander v. Eddington, 1964 OK 98, 391 P.2d 889, 893. See also Gassin v. McJunkin, 1935 OK 629, 48 P.2d 320, 325 (“A decree of distribution entered without notice thereof is void”).
47. Id. (internal quotations omitted). See also Street v. Saddler, 1937 OK 597, 73 P.2d 415, 417 (“Whereas, in the case at bar it appears that the purported decree of heirship was made on an ex parte hearing and without proper or legal notice. It also appears that the land distributed did not belong to the Saddler estate, and consequently the county court had no jurisdiction over it”).
48. See Smith v. Smith, 270 P.2d 613, 622 (Cal. App. 1954).
49. Okla. Stat. tit. 58, §709 (“After the hearing, the court shall give in writing the findings of fact and conclusions of law, and judgments thereon, as well as for costs, may be entered and enforced by execution or otherwise, by the court, as in civil actions”).
50. See In re Estate of McGahey, 2015 OK CIV APP 21, ¶10, 359 P.3d 1157 (discussing and rejecting the view that summary judgment is inapplicable to probate proceedings).
51. “The Oklahoma Pleading Code governs the procedure in the district courts of Oklahoma in all suits of a civil nature whether cognizable as cases at law or in equity except where a statute specifies a different procedure.” Okla. Stat. tit. 12, §2001. In 2006, the Oklahoma Supreme Court noted a “procedural demarcation line” between probate proceedings and “regular” actions upon claims, which are governed by the Pleading Code. Jernigan v. Jernigan, 2006 OK 22, ¶17, 138 P.3d 539. It is worth noting that Section 2001 defines the Pleading Code as encompassing Sections 2001 through 2027 of Title 12. Section 2056 was a later addition. Statutory editors treat it as part of the Pleading Code. It is the only section of the Pleading Code falling outside the defined scope set forth in Section 2001.
52. Patel v. OMH Medical Center, Inc., 1999 OK 33, ¶18, 987 P.2d 1185. In Patel, the court addressed whether summary judgment is available in postjudgment vacation proceedings. “[T]here is no legal impediment to the use – in a §1031 postjudgment vacation proceeding – of acceptable evidentiary substitutes to eliminate from adversary contest any individually and clearly defined fact issue that is claimed as undisputed and shown to be supported solely by inferences consistent with the movant’s position in the case.” Id.
53. In re Estate of Davis, 2006 OK CIV APP 31, ¶27, 132 P.3d 609. The Davis court keyed its decision upon limitations upon probate court jurisdiction, relying on Wilson v. Kane, 1993 OK 65, ¶6, 852 P.2d 717, 721. Id. These limitations were rolled back when the legislature broadened the jurisdiction of courts sitting in probate in 1997 and 2001. Laws 1997, HB 1969, c. 224, §2 (eff. Nov. 1, 1997); Laws 2001, HB 1752, c. 58, §1 (eff. Nov. 1, 2001).
54. In re Estate of Glomset, 1976 OK 30, ¶6, 547 P.2d 951, 953.
56. In re Estate of Geller, 1999 OK CIV APP 45, ¶14, 980 P.2d 665.
57. Id., 1999 OK CIV APP 45, ¶14, 980 P.2d 665. The statute is found at Okla. Stat. tit. 84, §215
58. In re Estate of Richardson, 2002 OK CIV APP 69, 50 P.3d 584.
59. Id., 2002 OK CIV APP 69, ¶ 2, 50 P.2d 584. During the pendency of the appeal, the Oklahoma Supreme Court ordered that briefs be submitted despite the summary nature because the appeal was from an interlocutory order in a probate proceeding which is appealable by right. Id., ¶1 n. 1. The Richardson court nevertheless approved of the summary procedure in the probate proceeding and applied the summary judgment standard of review in its analysis. Id., ¶2.
60. [See supra] note 53.
61. 2006 OK 22, ¶¶17, 25, 32, 138 P.3d 539.
62. See, e.g., In re Estate of McGahey, 2015 OK CIV APP 21, ¶10, 359 P.3d 1157 (discussing and rejecting the view that summary judgment is inapplicable to probate proceedings); In re Estate of Eagleton, 2017 OK CIV APP 2, ¶4, __ P.3d __, ___ (mandate issued) (affirming the trial court’s denial of summary judgment in probate proceeding after applying the summary judgment standard of review in its analysis).
63. Id., 2017 OK CIV APP 2, ¶1, __ P. 3d at ___.
64. Id., 2017 OK CIV APP 2, ¶¶5, 22, __ P. 3d at ___.
65. Rollings v. Thermodyne Indus., Inc., 1996 OK 6, ¶34, 910 P.2d 1030, 1036. In 2002, the Oklahoma Supreme Court rejected a due process and open-courts challenge against an arbitration award entered by default against a tribal nation. C&L Enters., Inc. v. Citizen Band Potawatomi Tribe, 2002 OK 99, ¶¶10-12, 72 P.3d 1, 4.
66. Rollings, 1996 OK 6, ¶34, 910 P.2d at 1036.
67. 2002 OK CIV APP 96, 57 P.3d 95.
68. Id., 2002 OK CIV APP 96, ¶12, 57 P.3d at 99.
69. Rachal v. Reitz, 403 S.W.3d 840 (Tex. 2013). See also Syncora Guarantee v. HSBC Mexico, 861 F. Supp. 2d 252, 260 (S.D.N.Y. 2012). The result is made available by statute in some states. See Ariz. Rev. Stat. Ann. §14–10205; Fla. Stat. Ann. §731.401 (2010). See generally American College of Trust & Estate Counsel, Arbitration Task Force Report (Sept. 18, 2006) (examining the issues and proposing model acts and sample arbitration-related clauses).
70. For similar results in other states, see Schoneberger v. Oelze, 96 P.3d 1078, 1082 (Ariz. 2004); McArthur v. McArthur, 224 Cal. App. 4th 651 (Cal. Ct. App. 2014); In re Mary Calomiris, 894 A.2d 408 (D.C. 2006); Schmitz v. Merrill Lynch, 939 N.E.2d 40, 45 (Ill. App. Ct. 2010). The result in Schoneberger was legislatively overruled by Ariz. Rev. Stat. Ann. §14–10205. The authors thank Philip N. Jones of Duffy Kekel, LLP, in Portland, Oregon, for gathering the citations to these and related authorities. See also Mary F. Radford, “Predispute Arbitration Agreements Between Trustees and Financial Services Institutions: Are Beneficiaries Bound?,” 40 ACTEC L.J. 273 (2014).
71. Shamblin, 1998 OK 88, ¶9, 867 P.2d at 1208.
72. Okla. Stat. tit, 60 §175.23(D) (providing that Oklahoma Trust Act shall be governed by rules of civil procedure). See also In re Dooley Trust, 2016 OK 110, 383 P.3d 773 (affirming the trial court’s grant of summary judgment to trustee in trust action).
73. See, e.g., Cope v. Cope, 2009 OK CIV APP 32, ¶¶1, 7, 231 P.3d 737 (reversing the trial court’s grant of summary judgment in child support proceeding after applying the summary judgment standard of review in its analysis). Child support proceedings are of equitable cognizance. Thornton v. Thornton, 2011 OK 6, ¶5, 247 P.3d 1180, 1182 (internal citations omitted).
74. Jernigan v. Jernigan, 2006 OK 22, 138 P.3d 539.
75. Okla. Stat. tit. 30, §1-101, et seq.
76. See, e.g., Okla. Stat. tit. 30, §3-116 (providing for proceedings to determine restoration of capacity).
77. Jernigan, 2006 OK 22, ¶¶ 3, 14, 32, 138 P.3d 539.
78. Id., 2006 OK 22, ¶¶13, 14, 17, 25, 32, 138 P.3d 539.
ABOUT THE AUTHORS
Jim Milton is a shareholder and director at Hall, Estill, Hardwick, Gable, Golden & Nelson PC. He is a Fellow of the American College of Trust and Estate Counsel. He graduated with honors from the University of Texas School of Law in 1995.
Courtney Kelley is an associate attorney at Hall, Estill, Hardwick, Gable, Golden & Nelson PC, practicing primarily in the firm’s Trust and Estate Litigation Group. She received a B.A. in economics from the University of Colorado, Boulder, and a J.D. from Washburn University School of Law.
Originally published in the Oklahoma Bar Journal -- OBJ 88 pg. 1727 (Sept. 9, 2017)