SOUTHWEST CASING v. FOSTER
This text of 2020 OK CIV APP 37 (SOUTHWEST CASING v. FOSTER) 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.
Opinion
SOUTHWEST CASING v. FOSTER
2020 OK CIV APP 37
Case Number: 117512
Decided: 05/22/2020
Mandate Issued: 06/24/2020
DIVISION III
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION III
Cite as: 2020 OK CIV APP 37, __ P.3d __
SOUTHWEST CASING, LLC, Plaintiff/Appellee,
v.
DANNY FOSTER, SARAH FOSTER, and LOREN FOSTER, Defendants/Appellants.
APPEAL FROM THE DISTRICT COURT OF
GARFIELD COUNTY, OKLAHOMA
HONORABLE DENNIS HLADIK, JUDGE
REVERSED AND REMANDED
FOR FURTHER PROCEEDINGS
Michael D. Roberts, ROBERTS LAW OFFICE, Enid, Oklahoma, for Plaintiff/Appellee,
Jonathan F. Benham, RIFFEL LAW FIRM, PLLC, Enid, Oklahoma, for Defendants/Appellants.
¶1 Defendants/Appellants Danny Foster, Sarah Foster, and Loren Foster (the Fosters) appeal from the trial court's order denying their motion to vacate default judgment. The trial court entered default judgment in favor of Plaintiff/Appellee Southwest Casing, LLC (SW Casing) without SW Casing having filed a motion. Rule 10 of the Rules for District Courts, 12 O.S. 2011, ch. 2, app. (Rule 10) "mandates that a motion must be filed in all instances, even when a party fails to make an appearance[,]" and the failure to do so constitutes "an irregularity in the proceedings" pursuant to 12 O.S. 2011 §1031(3). Schweigert v. Schweigert, 2015 OK 20, ¶15, 348 P.3d 696. The trial court abused its discretion by failing to vacate the default judgment. We reverse and remand for further proceedings.
¶2 SW Casing initiated this lawsuit on October 17, 2017. It alleged Defendant Danny Foster was an employee of SW Casing's predecessor-in-interest and claimed the Fosters refused to pay SW Casing for a 2012 Chevrolet 3500 truck the Fosters allegedly sold without SW Casing's knowledge.1 The Fosters did not file an answer, and no attorney entered an appearance on their behalf. The trial court entered a default judgment against the Fosters in the amount of $28,500 on May 22, 2018. The court's order states default judgment was entered after a hearing "on the request of [SW Casing]," but the record shows SW Casing did not file a motion for default judgment. The Fosters moved to vacate the default judgment on June 20, 2018. They argued the default judgment was irregular under 12 O.S. 2011 §1031(3) because SW Casing failed to obtain proper service, file a motion for default judgment, or provide notice before the judgment was entered. After a hearing, the trial court denied the Fosters' motion to vacate.
¶3 We review a district court's order vacating or refusing to vacate a judgment for abuse of discretion. Ferguson Enters., Inc. v. H. Webb Enters., Inc., 2000 OK 78, ¶5, 13 P.3d 480. Although a trial court is vested with wide discretion in denying a motion to vacate, its order will be reversed if the trial court is deemed to have erred with respect to a pure, simple and unmixed question of law. See Jones, Givens, Gotcher & Bogan, P.C. v. Berger, 2002 OK 31, ¶5, 46 P.3d 698.
¶4 In Schweigert, the Oklahoma Supreme Court examined the language of District Court Rule 10 and concluded:
Rule 10 provides not only that a motion must be filed and notice given to a party who has appeared, but that the motion must be filed even if no notice was required . . . a motion must be filed in all instances, even when a party fails to make an appearance, and the motion must recite what notice was given, and, if none were given, the reason therefore.
Schweigert, 2015 OK 20, ¶15 (emphasis added).2 The Court found the failure to file a motion prior to the entrance of default judgment constitutes "an irregularity in the proceedings" under 12 O.S. 2011 §1031(3) "that le[aves] the district court without means of determining whether [the plaintiff] was required to give notice, and, if so, whether the notice conformed to due process prerequisites of entering judgment." See id., ¶¶8 & 15.
¶5 Here, the trial court entered default judgment after a hearing upon SW Casing's request, but SW Casing did not file a motion for default judgment as was required. SW Casing does not respond to the Fosters' argument that the court should have vacated the judgment due to this irregularity.3 Rule 10 "mandates that a motion must be filed in all instances, even when a party fails to make an appearance, and the motion must recite what notice was given, and, if none were given, the reason therefore." Schweigert, 2015 OK 20, ¶15. The trial court, accordingly, abused its discretion by failing to vacate the default judgment pursuant to §1031(3) where no motion was filed before the entrance of judgment.
¶6 The decision of the trial court is reversed, the default judgment is vacated, and the case is remanded for further proceedings.
¶7 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
GOREE, J., concurs
¶1 I respectfully dissent and would reverse on other grounds. The majority finds that Schweigert and Asset Acceptance LLC require the Plaintiff to file a motion for default judgment when the Defendant fails to respond to the Petition. However, both cases are distinguishable from the case at issue and would create new legal requirements for Plaintiffs that are not found in District Court Rule 10.
Free access — add to your briefcase to read the full text and ask questions with AI
Related
Cite This Page — Counsel Stack
2020 OK CIV APP 37, 469 P.3d 739, Counsel Stack Legal Research, https://law.counselstack.com/opinion/southwest-casing-v-foster-oklacivapp-2020.