Opinion:Shropshire v. Parsons, 2021 OK CIV APP 13
Subject matter:Small Claims; Landlord and Tenant
Date Decided:March 18, 2021; Mandate issued 4/14/2021
Trial Court:Oklahoma County (Pipes, J.)
Route to this Court:Appeal of small claims court final judgement
Facts:Plaintiff/Appellant was a tenant of Defendants. Tenant brought action in small claims court seeking $3,405.00 in damages from the landlord for conversion of the tenant’s personal property and breach of the parties’ lease agreement. Landlord asserted a “Counterclaim or Setoff” alleging the tenant was indebted to the landlord in the amount of $2,519.52 for back rent and damages in excess of the tenant’s security deposit. 
At the small claims hearing, the tenant objected to the landlord’s counterclaim because the same was not verified. The counterclaim was “duly sworn” by landlord’s counsel, but it was not notarized. The trial court overruled the tenant’s objection, took evidence, and entered judgment for the landlord in the amount of $3,080.00, with interest, $300.00 in attorney fees and $20.00 in costs. Tenant appealed on the basis that counterclaim should not have been considered because it was not verified as required by 12 O.S.2011, § 1758.
Standard of Review:De novo review of statutory construction. 
Analysis:12 O.S.2011, § 1758 does prescribe a particular form for a Counterclaim or Setoff in this small claims proceeding. The proscribed form does provide a place for the Counterclaim or Setoff to be “subscribed and sworn” before a notary public, clerk, or judge. The form in this case was signed by the landlord’s counsel, but counsel’s signature was not verified by a notary, clerk, or judge. 
The landlord’s Counterclaim or Setoff met the 72-hour notice and filing requirement of section 1758, which the Oklahoma Supreme Court has deemed mandatory. However, there is no authority presented which would require a trial court to dismiss or otherwise disallow the landlord’s counterclaim for lack of verification. While section 1758 provides that if a defendant wishes to state a counterclaim, he “shall file a verified answer…,” the “shall” modifies requirement that the answer be filed in accordance with the statute’s prescribed time limit, which occurred in this case. This interpretation carries out the statutes intent of timely filing so as not to delay trial. Oklahoma courts have generally recognized that the want of a verification, when required, is not jurisdictional. “…the purpose of a verification is to ensure that relief rendered thereon is based upon evidence or sworn testimony. Here, though the counterclaim and set-off were not verified, the trial court heard sworn testimony of all three defendants and took evidence. Any defect in lack of verification was remedied at that time.” 
Vote:3-0; Opinion by Hixon, J; Fischer, V.C.J and Rapp, J., concur.
Other: Certiorari not sought.