Appellant: Sovereign Consulting LLC
Appellee: Delaware Nation of Oklahoma
( Bell )
( Caddo County - Richard Van Dyck )
AFFIRMED
Robert R. Robles, Oklahoma City, Oklahoma, For Plaintiff/Appellant
William R. Norman, Jr., HOBBS, STRAUS, DEAN & WALKER, LLP, Oklahoma City, Oklahoma,
and
Jay P. Walters, Klint A. Cowan, FELLERS SNIDER BLANKENSHIP BAILEY & TIPPENS, Oklahoma City, Oklahoma, For Defendant/Appellee.
OPINION
¶1 Plaintiff/Appellant, Sovereign Consulting, LLC, appeals from the trial court's orders (1) granting default judgment to Defendant/Appellee, Delaware Nation of Oklahoma (Tribe), on Tribe's counterclaims; (2) denying Plaintiffs motions to reconsider, to vacate default judgment, for leave to file answers to the counterclaims out of time, and for default judgment in favor of Plaintiff; and (3) granting Tribe's motion for summary judgment on Plaintiffs claims and cross-motion for summary judgment on Tribe's claims. For the reasons set forth below, we affirm.
¶2 The dispute between the parties arises from an allegedly binding 2003 agreement for Plaintiff to develop a gaming facility on property owned by Tribe in Caddo County. In April 2006, Plaintiff sued tribe for breach of contract, quantum meruit, estoppel and specific performance. Thereafter, both sides unsuccessfully moved for summary judgment. In July 2009, Tribe was granted leave to file counterclaims for misrepresentation and fraud. Plaintiff did not respond to Tribe's motion, nor did its counsel appear at the scheduled motion hearing. According to Tribe, Plaintiff repeatedly cancelled scheduled mediation sessions. By order dated July 30, 2009, the trial court sanctioned Plaintiff for its bad faith refusal to participate in court-ordered mediation.
¶3 Plaintiffs answer to Tribe's counterclaims was due to be filed no later than August 13, 2009. On August 19, 2009, Tribe moved for default judgment on its counterclaims. The trial court scheduled a hearing on the motion for September 23, 2009. On August 31, 2009, Tribe filed with the court a Notice of Refusal of Certified Mail wherein Tribe alleged Plaintiff's counsel refused service of Tribe's motion for default judgment and the trial court's hearing order. Without obtaining leave of court, Plaintiff belatedly filed its answer to Tribe's counterclaims on September 18, 2009.
¶4 On September 23, 2009, the trial court granted Tribe's motion for default judgment on its counterclaims. The court specifically noted Plaintiff's reply was due by August 13, 2009, and Plaintiff did not seek to file its reply out of time. The order continued, "Plaintiff has, in the face of a number of notices of both the Defendant's Counterclaims and Defendant's Motion [ ] for Default Judgment, failed or refused to exercise any due diligence to protect its rights given numerous opportunities to do so." As part of its order, the trial court granted Tribe's request to rescind the gaming agreement which served as the basis for Plaintiff's suit. Although a separate hearing on Tribe's damages was deferred to a later hearing, Tribe subsequently dismissed its damages prayer.
¶5 Plaintiff thereafter filed a combined motion to vacate the default judgment, for leave to file its answer out of time and for default judgment in its favor. Tribe responded and moved the court to reconsider its previously filed cross-motion for summary judgment. On February 17, 2010, Plaintiff's counsel filed an affidavit denying that he or any member of his staff refused to accept service of Tribe's default judgment notice. The same day, new counsel filed an entry of appearance on behalf of Plaintiff.
¶6 By order dated March 8, 2010, the trial court denied Plaintiff's requests to vacate the default judgment, for leave to answer out of time and for default judgment in its favor. The trial court granted Tribe's motions for (1) summary judgment regarding Plaintiff's claims and (2) summary judgment on Tribe's counter claims. Plaintiff now appeals and raises three propositions of error.
¶7 As its first proposition of error, Plaintiff contends the trial court erred in granting Tribe's motion for default judgment and in overruling Plaintiff's motions to vacate and to reconsider. With respect to Plaintiff's default judgment allegation, it appears the complaint rests primarily on the following: Tribe's Notice of Refusal of Certified Mail was unverified; the certified mail return receipt did not contain a postmark; and Tribe filed a preliminary witness list after it sought default judgment. We address each argument in order below.
¶8 Contrary to Plaintiff's argument, District Court Rule 4(c), Rules for the District Courts of Oklahoma, 12 O.S. Supp. 2002, Ch. 2, App., did not require Tribe's default judgment motion to be verified or supported by affidavit because it did not raise issues of fact. Tribe's motion made legal arguments based on facts not in dispute. Moreover, "while Rule 4(d) states the trial court 'may' deny without a hearing any motion that does not comply with the verification requirements of Rule 4(c), it does not mandate the trial court do so." In re Paternity of KB., 2004 OK CIV APP 97, 13, 104 P.3d 1132, 1135. Finally, Plaintiff failed to raise this alleged deficiency in the trial court. "Parties on appeal are limited to the issues presented at the trial level." Jones v. Alpine Inv., Inc., 1987 OK 113, 11, 764 P.2d 513, 515. Accord 12 O.S. 992 (2001).
¶9 Plaintiffs argument regarding the lack of a postmark on Tribe's certified mail receipt is similarly rejected. First, Plaintiff failed to raise this issue below. Jones at 11, 764 P.2d at 515. Furthermore, no postmark on the certified mail receipt was required. Litigants "can prove the timeliness of [a] mailing by the postmark or other proof from the post office." Whitehead v. Tulsa Pub. Schools, 1998 OK 71, 5, 968 P.2d 1211, 1215 (emphasis added). The record in the present case contained the USPS tracking information, the certified mail receipt and a copy of the package -with a postmark - returned to Tribe's counsel as refused.
¶10 Plaintiff lastly contends Tribe's act of filing a preliminary witness list after it filed a motion for default judgment somehow resulted in Tribe's waiver of the default judgment motion. Plaintiff cites no authority for such argument. "Argument without supporting authority will not be considered" on appeal. Rule 1.11(k)(1), Oklahoma Supreme Court Rules, 12 O.S. 2001, Ch. 15, App. 1. Accord Beets v. Metropolitan Life Ins. Co., 1999 OK 15, 9, 995 P.2d 1071, 1073 n.7.
¶11 In Willis v. Sequoyah House, Inc., 2008 OK 87, 194 P.3d 1285, the Supreme Court reiterated:
"A trial judge's decision comes to a court of review clothed with a presumption of correctness. Every fact not disputed by the record must be regarded as supportive of the trial court's ruling."
Id. at 15, 194 P.3d at 1290 (footnotes omitted). In the present case, it is undisputed Plaintiff failed to timely file an answer to Tribe's counterclaims or respond to Tribe's motion for default judgment.
"The filing of an answer after the time permitted by the Oklahoma Pleading Code and without leave of court is a nullity, having no procedural effect. To cure the default, the [litigant is] required to obtain leave of court to file [its] answer."
Durant Civic Found., Inc. v. Grand Lodge of Okla. of Indep. Order of Odd Fellows, 2008 OK CIV APP 54, ¶8, 191 P.3d 612, 614-5. Title 12 O.S. 2006(B)(2) (2001) provides a trial court may grant an extension of the time to file where "excusable neglect" has been shown. Plaintiff's counsel appeared at the hearing on the default judgment motion, but could not satisfactorily explain Plaintiff's failure to timely file an answer. Plaintiff never claimed that it failed to receive notice of Tribe's counterclaims. Under such circumstances, we cannot find the trial court erred in granting the default judgment.
¶12 "The standard of review of a trial court's ruling either vacating or refusing to vacate a judgment is abuse of discretion." Ferguson Enter., Inc. v. H. Webb Enter, Inc., 2000 OK 78, 5, 13 P.3d 480, 482.
"An abused judicial discretion is manifested when discretion is exercised to an end or purpose not justified by, and clearly against, reason and evidence. It is discretion employed on untenable grounds or for untenable reasons, or a discretionary act which is manifestly unreasonable."
Patel v. OMH Med. Ctr, Inc., 1999 OK 33, 20, 987 P.2d 1185, 1194 (citations omitted). As Tribe correctly states, Plaintiff failed to timely file its answer, failed to respond to multiple motions, failed to provide exhibit lists as required by court order, failed to attend a hearing, and refused to cooperate in court-ordered mediation (for which it was sanctioned). Under the facts of this case, we cannot say the trial court abused its discretion in overruling Plaintiffs motions to vacate and to reconsider its default judgment ruling.
¶13 As its second proposition of error, Plaintiff contends the trial court erred in granting its attorney's motion to withdraw without giving Plaintiff notice and an opportunity to respond. On April 15, 2009, Plaintiff's two original attorneys filed a motion to withdraw as counsel of record, asserting they had not been paid in over a year. The trial court permitted the lawyers to withdraw and postponed a scheduled April 29, 2009, hearing until the May 20, 2009, docket. Plaintiff's replacement counsel filed his entry of appearance on April 18, 2009. Plaintiff intimates every event after the withdrawal of its original attorneys is tainted and mandates reversal of every subsequent court order. Because Plaintiff failed to first present this argument to the trial court, it is waived. Jones, 1987 OK 113 at 11, 764 P.2d at 515; 12 O.S. 992 (2001). Had this issue been properly preserved for appellate review, we would similarly reject the same. This proposition is essentially an argument that Plaintiff was denied effective assistance of counsel. Such an argument is not a ground for reversal in a civil action where counsel is not required. Gibbs v. Gibbs, 1997 OK CIV APP 29, 4, 941 P.2d 1014, 1015-6.
¶14 As its final proposition of error, Plaintiff asserts the trial court erred in overruling its motion for summary judgment. A trial court's denial of a motion for summary judgment is not reviewable on appeal. Myers v. Missouri Pac. R.R. Co., 2002 OK 60, 8-40, 52 P.3d 1014, 1034. We note here that Plaintiff did not appeal the trial court's entry of summary judgment in favor of Tribe regarding Plaintiff's affirmative claims. Accordingly, Plaintiff has waived any challenge to the same. See Rodebush v. Oklahoma Nursing Homes, Ltd., 1993 OK 160,19, 867 P.2d 1241, 1244 n.2. On the basis of the foregoing, the judgment of the trial court is affirmed
¶15 AFFIRMED.
MITCHELL, J., and HETHERINGTON, J., concur.