PETERSON and ERBAR v. WOLF, et al.
2025 OK CIV APP 39
Case Number: 122515 Decided: 06/05/2025 Mandate Issued: 12/18/2025
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION IV (2024)
Cite as: 2025 OK CIV APP 39, __ P.3d __ DUSTIN PETERSON and ANDRA ERBAR, Plaintiffs/Appellants, vs.
LAWRENCE E. WOLF and RUTH M. WOLF, Defendants/Appellees, and
LOAN DEPOT.COM, LLC, Interested Party.
APPEAL FROM THE DISTRICT COURT OF
OKLAHOMA COUNTY, OKLAHOMA
HONORABLE NATALIE MAI, DISTRICT JUDGE
AFFIRMED
Maria Tully Erbar, MARIA TULLY ERBAR, P.C., Oklahoma City, Oklahoma, For Plaintiffs/Appellants T. Carter Steph, T. CARTER STEPH, PLLC, Oklahoma City, Oklahoma, For Defendants/Appellees
OPINION ON REMAND BY GREGORY C. BLACKWELL, JUDGE:
¶1 Dustin Peterson and Andra Erbar (sellers), entered into a contract to sell a residential lot in Oklahoma City to Lawrence and Ruth Wolf (buyers) in August 2022. The buyers agreed to a purchase price of $319,000 and paid an earnest money deposit of $3,200. Ultimately, the sale was not completed based on the parties' inability to reach an agreement regarding treatments, repairs, and replacements (TRRs), as the contract required. In a prior suit--Oklahoma County No. CJ- 2022-4756--the buyers sued for return of their earnest money and to require the sellers to execute a release of contract. The buyers simultaneously filed a lis pendens in the county records. The sellers counterclaimed for anticipatory repudiation, breach of contract, and tortious breach of contract. In their prayer for relief, the sellers sought specific performance of the contract at issue.
¶2 The buyers moved for summary judgment. Prior to the summary judgment hearing, the sellers filed a motion to discharge the lis pendens. The court granted summary judgment in favor of the buyers. The journal entry for summary judgment reflected that the lis pendens issue was moot. The sellers filed a motion to reconsider, alleging, among other things, that the lis pendens should be discharged. The court denied the motion to reconsider as to the summary judgment order but stated that the sellers "shall be allowed to have their Motion to Discharge Lis Pendens set for hearing before this court." The sellers appealed the grant of summary judgment in Supreme Court Case No. 121,625. However, the sellers withdrew their motion to discharge the lis pendens at the time they filed the appeal.
¶3 In that case, this Court held that the trial court properly granted summary judgment in favor of the buyers, finding that the contract perished by its own terms because the parties failed to reach an agreement on the TRR. As none of the sellers' twenty-one allegations of error related to the release of the lis pendens, no issue related to the lis pendens was addressed in the prior appeal. The sellers sought certiorari review on August 5, 2024. The request was unanimously denied on January 13, 2025. Mandate issued February 5, 2025.
¶4 In January 2024, while the prior appeal was ongoing, the sellers filed a new action related to this same property as a completely separate case (CJ-2024-114), which was randomly assigned to a different trial judge. In the new action, the sellers, pleading claims for quiet title and slander of title, sought the removal of the same lis pendens that was at issue in the prior case and damages for the buyers' alleged refusal to release the same. The sellers specifically alleged that the buyers "wrongfully filed" the lis pendens and that they had demanded that the buyers execute and file a "Release of Lis Pendens" but the buyers had refused. Such refusal, according to the sellers, "caused further damages ... by preventing [sellers'] quiet enjoyment and exclusive right to convey their property." Doc. 1, Petition , 2. As to the question of slander of title, the sellers pled special damages "because [sellers] have been unable to sell the Property." Id. at 3. ¶5 The buyers filed a motion to dismiss, alleging that the lis pendens was before the trial court on three separate motions, was before this Court on appeal, and that the sellers failed to attach a copy of the lis pendens to their petition or otherwise alert the court in the new case that there was previous litigation related to the subject property. In their response, the sellers argued that "even if [buyers] perhaps had a right to file the lis pendens initially--the basis for such a right has evaporated." Doc. 3, Plaintiffs' Response and Objection to Motion to Dismiss , 4. That is, the sellers argued that because the buyers' earnest money had apparently been returned, the buyers were required to execute a release of the lis pendens. The sellers also argued that "[t]he earlier lawsuit did not justify a lis pendens . It was not a lawsuit about title to real property. Nor did it even actually involve real property. It was, instead, a contract lawsuit about whether $3,000 of earnest money was to be returned upon failure of the contract." Id. at n.4.
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¶6 The trial court held a hearing and found as follows:
I find that this matter is substantially the same as the previous matter. To say that the subject property was not the subject property in the prior case is a misstatement of the facts, or worse, disingenuous. This obviously was the subject of the contract for a real estate purchase that was the very subject of the entire suit in the previous case .... [T]here is nothing that is going to prohibit the litigants from trying to bring this issue before the Court in the prior suit if there was a procedure for them to do so. There has never been a denial by this Court of any subsequent motion to either reset or refile or amend or supplement the prior motion [to discharge the lis pendens] that was withdrawn from the Court's hearing docket.
Tr. (June 12, 2024), 14-15. A journal entry dismissing the case was filed. The sellers appeal. ¶7 The crux of the sellers' petition is that they are entitled to a release of the lis pendens because either (1) the buyers had no right to file it in the first instance or, (2) the return of the buyers' earnest money deposit automatically required the buyers to execute a release. Neither proposition is supported by law, and thus, the trial court's dismissal was warranted. See McMinn v. City of Oklahoma City , 1997 OK 154 , ¶ 11, 952 P.2d 517 , 521 ("This Court is not bound by the reasoning of the trial court. If that court reaches the correct result we may affirm if there is a different but proper legal theory upon which to base the decision.").
¶8 A lis pendens, which literally means "[a] pending lawsuit," is simply "[a] notice, recorded in the chain of title to real property, required or permitted in some jurisdictions to warn all persons that certain property is the subject matter of litigation, and that any interests acquired during the pendency of the suit are subject to its outcome." LIS PENDENS, Black's Law Dictionary (12th ed. 2024). It may also "be viewed as a device by which the courts acquire the power or control over property involved in a suit for the period during which the action remains pending and before final judgment is rendered." White v. Wensauer , 1985 OK 26 , ¶ 8, 702 P.2d 15 , 18.
¶9 In Oklahoma, a lis pendens is permitted, and limited, by statutory law. 12 O.S. § 2004.2 ; White , 1985 OK 26 , ¶ 7 ("Statutes are not to be regarded as creating the doctrine of lis pendens. Rather, they actually limit its application by making the notice effective only when the action has been filed in accordance with the statutorily-prescribed provisions and the procedural requirements for the doctrine's invocation have been met." (footnotes omitted)). A lis pendens "does not impress the affected property with a lien but rather operates to bind third parties with notice that any interest they may acquire in the property pending litigation will be subject to the outcome of the action." White , 1985 OK 26 , ¶ 8. Contrary to the implications of the sellers' arguments, a lis pendens does not in any way legally restrict the alienation of property . See 12 O.S. § 2004.2 . It is "simply notice of pending litigation which may affect the described real property.... No release of the lis pendens notice need be recorded. " Section 3.6, Oklahoma Title Examination Standards, Title 16 O.S. Ch.1, App (emphasis added). 1
¶10 Under these principles, the buyers had a clear and absolute right to file a lis pendens when they initiated the prior litigation. Although, practically, it may be that the aim of the buyers' suit was to effectuate the return of their earnest money, the sellers had theretofore refused to acknowledge the death of the contract. Indeed, the reason the buyers had not been paid back the earnest money was due to a disagreement about the continued viability of the contract to purchase land. This dispute was continued when the sellers sought certiorari in the prior appeal and is undoubtedly a suit "involving real property" within the meaning of 12 O.S. § 2004.2 . The sellers' protestations to contrary were, and are, to be blunt, absurd.
¶11 Second, at no time , and certainly not at the time this lawsuit was filed, have the sellers had a right to a release of the lis pendens at issue. While, as stated, equity may grant such a right, the equities have not in any way favored the sellers at any point in this saga. At the time this suit was filed, the prior case was ongoing. The reason it was ongoing was because the sellers had filed a petition for certiorari to keep it going . Had the sellers succeeded in their efforts in the prior case, the buyers could have been found in breach of the contract and the sellers could have sought, and were seeking, specific performance of the contract. To require the buyers to release their lis pendens in such a situation would not be equitable. As discussed, a lis pendens exists to notify potential buyers that there is a lawsuit on file and to point them to where to look to determine for themselves whether to purchase the property anyway. Even if the sellers had some absolute right to a release of the lis pendens when the litigation affecting the real property ended, they clearly had no basis in law to request the release of the lis pendens when the litigation, under which they continued to seek specific performance of the contract, was ongoing. 2 Similarly, the sellers' claim that the litigation at issue did not concern the title to property was initially wrong for the reasons stated above, but completely farcical once the sellers filed a counterclaim seeking specific performance of the contract at issue. While that case was pending on appeal, which it was until mandate issued, the sellers had no basis in law or fact to request the release of the lis pendens.
¶12 For these reasons, we find that the sellers' filing of the second suit below was frivolous. The sellers sought the removal of a lis pendens which had been legally filed, which was not subject to removal, and which concerned a case that was ongoing precisely because of the actions of the sellers themselves. They also did so under a new case number when the trial court had given clear and specific permission to renew the motion to release in the prior case. 3 Having filed a frivolous action, we find the sellers' appeal was also frivolous--that is, "there are no debatable issues upon which reasonable minds might differ and the appeal is so totally devoid of merit that there is no reasonable possibility of reversal ...."
TRW/Reda Pump v. Brewington , 1992 OK 31 , ¶ 14, 829 P.2d 15 , 23. Accordingly, the trial court is affirmed. ¶13 AFFIRMED.
HUBER, P.J., and HIXON, J., concur.
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