Discover Property & Casualty Insurance Co. v. Collins

2013 OK CIV APP 29, 299 P.3d 510, 2013 WL 1400422, 2013 Okla. Civ. App. LEXIS 8
CourtCourt of Civil Appeals of Oklahoma
DecidedFebruary 15, 2013
DocketNo. 109,464
StatusPublished
Cited by2 cases

This text of 2013 OK CIV APP 29 (Discover Property & Casualty Insurance Co. v. Collins) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Discover Property & Casualty Insurance Co. v. Collins, 2013 OK CIV APP 29, 299 P.3d 510, 2013 WL 1400422, 2013 Okla. Civ. App. LEXIS 8 (Okla. Ct. App. 2013).

Opinion

BRIAN JACK GOREE, Judge.

T1 Garnishee/Appellant, Moisant and Company, Inc. d/b/a Moisant Promotional Products (Garnishee), seeks review of the trial court's order denying its motion to vacate a default judgment against it. We hold Garnishee was properly served both with the garnishment summons and with the later order directing Garnishee to answer and pay. However, the order failed to specify the amount of costs for which Garnishee would be held liable upon default. We reverse the trial court's order denying Garnishee's motion to vacate the default judgment to the extent it failed to vacate the cost award but affirm to the extent it refused to vacate the [512]*512judgment in the amount of $10,630.15. We remand with instructions to vacate the cost award.

T2 On July 21, 2008, Plaintiff/Appellee, Discover Property and Casualty Insurance Company (Creditor), obtained a default judgment against Defendant, Thomas Roy Collins (Debtor), for damages arising from a car collision. Creditor filed a garnishment affidavit on November 7, 2008, and served a continuing wage garnishment on Garnishee on November 20, 2008 by certified mail without restricted delivery. Garnishee answered, stating it already had an existing garnishment in place for Debtor on another judgment debt.

T3 On September 14, 2009, Creditor filed an application for an order directing Garnishee to answer and deliver money to Creditor, alleging the previous garnishment had expired. On October 5, 2009, the court issued such an order, directing Garnishee to answer the summons within seven days and deliver money or property of Debtor to Creditor's attorney. The order stated that if Garnishee failed to comply with the order, judgment would be rendered against Garnishee in the principal amount of the judgment of $10,630.15, plus interest and costs. Creditor mailed the order to Garnishee by certified mail, without restricted delivery, and filed a return with a signed receipt.

T4 On January 22, 2010, the trial court entered a judgment against Garnishee finding Garnishee was properly served with the order directing Garnishee to file an answer and deliver money to Creditor, but failed to file any response and was in default of the continuing garnishment summons. Paragraph 7 of the judgment stated, "That judgment should be, and hereby is, rendered against [Garnishee], and in favor of [Creditor] in the amount of $12,045.49. The final paragraph of the judgment stated, "IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that [Creditor] have and recover judgment of and from [Debtor] in the amount of $10,630.15. ..."

15 Creditor then filed a garnishment affidavit against Garnishee and served it on Garnishee's bank. The bank answered, stating it held $12,644.82 belonging to Garnishee.

T6 Garnishee moved to vacate the default judgment rendered on January 22, 2010, on the grounds the judgment was void because Garnishee was not properly served with the summons and petition, Garnishee did file an answer, and the judgment was rendered against Debtor, not Garnishee. Creditor objected, arguing the garnishment became effective upon expiration of the prior garnishment and Garnishee was guilty of laches. In reply, Garnishee argued Creditor was required to give notice before taking default.

T7 In a summary order, the trial court denied the motion to vacate default judgment. Garnishee appeals from this order. We will review a trial court's ruling on a motion to vacate a default judgment for abuse of discretion. Ferguson Enterprises, Inc. v. H. Webb Enterprises, Inc., 2000 OK 78, ¶ 5, 13 P.3d 480, 482.

I

18 Garnishee's first contention is the default judgment is void because the Creditor failed to obtain proper service of the continuing wage garnishment summons on Garnishee.1 Garnishee argues that 12 O.S. Supp.2002 § 2004(C)(2)(b) required that Creditor mail the summons and petition by certified mail, return receipt requested, with delivery restricted to the addressee. That subsection provides, in relevant part,

Service by mail shall be accomplished by mailing a copy of the summons and peti[513]*513tion by certified mail, return receipt requested and delivery restricted to the addressee. ... Service by mail to a garnishee shall be accomplished by mailing a copy of the summons and notice by certified mail, return receipt requested, and at the election of the judgment creditor by restricted delivery, to the addressee.

The next subsection of the statute, § 2004(C)(2)(c), provides in relevant part,

Service by mail shall not be the basis for the entry of a default or a judgment by default unless the record contains a return receipt showing acceptance by the defendant or a returned envelope showing refusal of the process by the defendant.... In the case of [a corporation, partnership, or unincorporated association], acceptance or refusal by any officer or by any employee of the registered office or principal place of business who is authorized to or who regularly receives certified mail shall constitute acceptance or refusal by the party addressed. A return receipt signed at such registered office or principal place of business shall be presumed to have been signed by an employee authorized to receive certified mail.

T9 In the present case, Creditor served the garnishment summons by certified mail at Garnishee's principal place of business and received a return receipt presumed to have been signed by an employee authorized to receive certified mail. Creditor was not required to use restricted delivery. We hold Creditor obtained proper service on Garnish ee.

II

110 Garnishee's next contention is that the journal entry for the default judgment was defective and granted judgment only against Debtor and not against Garnishee. The journal entry stated, "That judgment should be, and hereby is, rendered against [Garnishee]." This language unambiguously grants judgment against Garnishee. That the journal entry mistakenly stated judgment was rendered against Debtor in the following paragraph does not negate its effectiveness against Garnishee. We hold the judgment was effective as to Garnishee.

III

111 Garnishee's next contention is that its right to due process has been violated. It complains (1) it had no knowledge of the garnishment issued to its bank, (2) it did not have adequate notice of the initial garnishment summons against it because mailing was not restricted to its service agent, and (8) it did not have notice of the default proceedings. Garnishee has appealed only the order denying its motion to vacate the default judgment; it has not appealed any orders arising from the garnishment of its bank. Therefore, no issues relating to the garnishment of its bank are before us on review. As we discussed in Part I, the initial garnishment summons was properly served on Garnishee.

112 Creditor served a continuing earnings garnishment on Garnishee. Pursuant to 12 0.8. Supp.2004 § 1178.4(F)(1), Garnishee had the duty to file an answer stating:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
2013 OK CIV APP 29, 299 P.3d 510, 2013 WL 1400422, 2013 Okla. Civ. App. LEXIS 8, Counsel Stack Legal Research, https://law.counselstack.com/opinion/discover-property-casualty-insurance-co-v-collins-oklacivapp-2013.