Davidson v. Gregory, No. 65146

CourtSupreme Court of Oklahoma
Writing for the CourtProceeding to vacate judgment by default in a mortgage foreclosure suit. The District Court, LeFlore County, Ted A. Knight; OPALA; HARGRAVE; ALMA WILSON
Citation1989 OK 87,780 P.2d 679
PartiesLonnie W. DAVIDSON and Ida M. Davidson, husband and wife, Plaintiffs-Appellees, v. A.L. GREGORY et al., Defendants, and William Burris, Defendant-Appellant.
Decision Date31 May 1989
Docket NumberNo. 65146

Page 679

780 P.2d 679
1989 OK 87
Lonnie W. DAVIDSON and Ida M. Davidson, husband and wife,
Plaintiffs-Appellees,
v.
A.L. GREGORY et al., Defendants,
and
William Burris, Defendant-Appellant.
No. 65146.
Supreme Court of Oklahoma.
May 31, 1989.
As Corrected June 5, 1989.
Rehearing Denied Oct. 3, 1989.

Page 680

On certiorari to the Court of Appeals, Div. 4.

Proceeding to vacate judgment by default in a mortgage foreclosure suit. The District Court, LeFlore County, Ted A. Knight, Judge, denied the quest because of laches in its prosecution. The Court of Appeals affirmed on different grounds. Certiorari is granted.

The opinion of the Court of Appeals is vacated and the trial court's postdecree order is affirmed.

William H. Campbell, Oklahoma City and Robert T. Hardcastle, Wilburton, for defendant-appellant.

Benjamin J. Curtis, Poteau, for plaintiffs-appellees.

OPALA, Vice Chief Justice.

The dispositive issue tendered on certiorari is whether the appellant, whose efforts to secure a default judgment's vacation failed in both lower courts, met his burden to prove noncompliance with the Rule 10 notice requirement. 1 We answer in the negative.

I
THE ANATOMY OF LITIGATION

William Burris [Burris], one of multiple defendants in a mortgage foreclosure suit, filed an entry of appearance in the case on July 28, 1980 and demurred to the petition the following month. 2 At Burris' request his lawyer withdrew from the case in May 1981. The matter came to trial on January 11, 1983. According to the terms of the journal entry filed April 8, 1983, the trial court foreclosed the mortgage, established priority of lien interests and ordered the land sold. Finding Burris as well as a number of other defendants in default, the court ruled "that [certain] ... Defendants ... having been duly served herein, as prescribed by law, appear not and make default. " [Emphasis added.] Burris next filed his pro se response to the notice of the postdecree sheriff's sale.

Burris moved to vacate the default foreclosure decree on April 18, 1985, alleging as grounds two irregularities within the meaning of 12 O.S.1981 § 1031 (Third): 3 (1) the plaintiffs did not give him notice of their intent to take default judgment, which is required by RULE 10, AND (2)4 the journal entry erroneously stated that he "appear[ed] not" when in fact he had filed an entry of appearance in the case. The plaintiffs' response to the motion states that Burris had been given notice of all proceedings at the address shown on the disputed mortgage, as well as at an out-of-state

Page 681

address, and that proper notice had been published and posted on all the property. The trial court denied Burris' motion because of laches in its prosecution, finding that while Burris "may have a legitimate [vacation] claim," he failed to show why he waited more than two years after judgment to seek vacation relief. 5
II

THE COURT OF APPEALS' OPINION

Affirming the trial court's postdecree order on a different ground, the Court of Appeals held that Burris was not entitled to Rule 10 notice of the plaintiffs' intent to take default judgment because, as a cause that had been regularly set on the trial docket, this suit falls within one of the classes explicitly exempted from the Rule 10 notice requirement. 6 The appellate court noted that while there was nothing in the record before it to show the case had been regularly set for trial when it went to default judgment, it could presume from a silent record both a prior regular trial assignment as well as Burris' receipt of that assignment's copy.

We affirm the trial court's denial of relief because Burris had failed to prove a Rule 10 notice violation. As the allocation of the burden of proof that governs a § 1031 vacation proceeding based on failure to give Rule 10 notice presents an issue of first impression, we grant certiorari to settle this point of law by a precedential pronouncement.

III

THE MORTGAGE FORECLOSURE DECREE SOUGHT TO BE VACATED WAS NOT SHOWN TO FALL DEHORS A CLASS EXPLICITLY EXEMPTED FROM THE RULE 10 NOTICE REQUIREMENTS

The Rule 10 procedure for giving notice before default judgment is taken consists of two distinct components--a motion-cum-notice requirement and certain exemptions from the notice mandate. 7 In the first paragraph Rule 10 strikes solely at default judgments sought to be taken dehors the regular trial docket assignment setting--i.e. either at a motion docket or at some "special setting". 8 Its strictures require that, if the defendant previously appeared or filed a motion or pleading in the case

Page 682

and if default is to be taken against him at a time other than pursuant to a prior regular trial assignment, a motion to take judgment by default must be filed and five days' notice of its setting served on the party in default or his counsel. 9 The Rule 10 exemption applicable here--the fifth exception listed in the second paragraph--governs cases which are at issue and have been regularly set for trial. 10 In litigation standing in this posture judgment may be taken without Rule 10 notice compliance against anyone then in default.

A case is at issue for trial setting purposes when the issues are made up or when the defendant has failed to plead within the time allowed by law or by an order of the court. 11 The record does not contain Burris' answer to the petition. It shows only that he (a) made a July 1980 entry of appearance, (b) interposed a demurrer to the petition and (c) filed a pro se response to the August 1983 sheriff's sale.

An appellant bears the responsibility for incorporating into the appellate record all materials necessary to secure corrective relief from a trial court's adverse decision. 12 Because the record does not include any other of Burris' responsive pleading, we must presume here that, when the case went to trial, it did then stand at issue--as to him--for want of an answer.

Under our statutory regime for trial setting the court clerk has the duty to prepare a trial docket before every regular court session and to make available a copy of that docket for the use of the bar. 13 Faced with no contrary record trail, we must assume this case had been regularly set for trial and went to judgment pursuant to such prior assignment. 14 Error may not

Page 683

be predicated on silence; it must be affirmatively demonstrated. 15

So far as we know, when judgment was rendered against him, Burris was in default both for want of pleadings and also for nonappearance at trial. Because noncompliance with Rule 10 is not apparent from the sparse record before us, we are again constrained to assume that all the elements necessary to qualify for the Rule 10 exception were met. The appellate record, viewed in its entirety, is completely consistent with the notion that judgment was rendered concurrently against all defendants, including Burris, pursuant to a prior regular trial assignment. Further support for this view may be drawn from the fact that nearly as many defendants appeared at trial as those who were declared to be in default. The journal entry shows Burris to have been one of fifty-eight defendants against whom judgment was taken by default, while nearly 50 others appeared to contest in person or by counsel. Moreover, the record Burris designated for review contains neither a motion for default judgment nor other paper trail of some special setting for taking judgment by default against Burris alone.

IV

REQUIREMENTS FOR ESTABLISHING WANT OF RULE 10 NOTICE AS A GROUND FOR VACATION

A party seeking a judgment's vacation clearly bears the burden to bring a case within the parameters of § 1031 relief. 16 It is the vacation movant who must overcome the law's presumption of regularity that attaches to a judgment and to the judicial proceedings that precede it. 17 A postjudgment claim for want of Rule 10 notice raises an irregularity within the meaning of § 1031 (Third), whose presence will not be found from a silent record. The vacation claimant, who bears the onus of establishing such irregularity, 18 must prove the judgment rendered against him (or her) was in violation of the Rule 10 notice requirement. Because Rule 10 allows several exemptions from its ambit, clearly included in the vacation movant's burden is proof that (a) the case comes within the strictures of the Rule 10 mandatory notice standards, (b) the movant is included within the class protected by that rule and (c) the procedural posture in which the case stood at the taking of default judgment did not bring it within

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any of the Rule's exceptions from the notice-giving requirements. 19

To meet his burden Burris was required to show both want of Rule 10 notice as well as the fact that when the case was heard and went to default judgment against him it had not come up pursuant to a prior regular setting in conformity with the statutory regime. 20 Because the court clerk's records showing want of a prior regular trial assignment would not appear in an ordinary court case file, vacation claimant must procure the necessary documentary evidence from the court clerk's office and then introduce it in evidence at the hearing on the § 1031 vacation quest. 21 Burris did not offer below the requisite proof to show that when reached for default decree his case was neither at issue nor had been regularly...

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39 practice notes
  • Salazar v. City of Oklahoma City, No. 88,987
    • United States
    • Supreme Court of Oklahoma
    • March 16, 1999
    ...for incorporating into the record for appeal those materials which he needs for corrective relief in his favor. Davidson v. Gregory, 1989 OK 87, 780 P.2d 679, 16 Ouellette, supra note 10 at 1367 n. 25. For the breadth of summary relief City sought, its probative support was microscopic. Ten......
  • Akin v. Missouri Pacific R. Co., No. 86,632
    • United States
    • Supreme Court of Oklahoma
    • October 13, 1998
    ...n. 52, 827 P.2d 865, 874, n. 52; Willis v. Nowata Land and Cattle Co., 1989 OK 169, p 13, 789 P.2d 1282, 1286-1287; Davidson v. Gregory, 1989 OK 87, n. 23, 780 P.2d 679, 685 n. 23; Benham v. Keller, 1983 OK 68, p 5, 673 P.2d 152, 154; Utica Nat'l Bank and Trust v. Associated Producers, Co.,......
  • State v. Torres, No. 96996
    • United States
    • Oklahoma Supreme Court
    • February 24, 2004
    ...Chickasha in the court file. . . ." 10. First Federal Savings & Loan Ass'n v. Nath, 1992 OK 129, ¶10, 839 P.2d 1336; Davidson v. Gregory, 1989 OK 87, ¶11, 780 P.2d 11. Schuman's v. Missy Dress Co., 1935 OK 471, ¶0, 44 P.2d 862. 12. Title 59 O.S. Supp. 2002 §1332(C)(5), see note 2, supra. 13......
  • State v. Torres, No. 96,996.
    • United States
    • Oklahoma Supreme Court
    • February 24, 2004
    ...Chickasha in the court file...." 62. First Federal Savings & Loan Ass'n v. Nath, 1992 OK 129, ¶ 10, 839 P.2d 1336; Davidson v. Gregory, 1989 OK 87, ¶ 11, 780 P.2d 63. Schuman's v. Missy Dress Co., 1935 OK 471, ¶ 0, 44 P.2d 862. 64. Title 59 O.S. Supp.2002 § 1332(C)(5), see note 2, supra. 65......
  • Request a trial to view additional results
39 cases
  • Salazar v. City of Oklahoma City, No. 88,987
    • United States
    • Supreme Court of Oklahoma
    • March 16, 1999
    ...for incorporating into the record for appeal those materials which he needs for corrective relief in his favor. Davidson v. Gregory, 1989 OK 87, 780 P.2d 679, 16 Ouellette, supra note 10 at 1367 n. 25. For the breadth of summary relief City sought, its probative support was microscopic. Ten......
  • Akin v. Missouri Pacific R. Co., No. 86,632
    • United States
    • Supreme Court of Oklahoma
    • October 13, 1998
    ...n. 52, 827 P.2d 865, 874, n. 52; Willis v. Nowata Land and Cattle Co., 1989 OK 169, p 13, 789 P.2d 1282, 1286-1287; Davidson v. Gregory, 1989 OK 87, n. 23, 780 P.2d 679, 685 n. 23; Benham v. Keller, 1983 OK 68, p 5, 673 P.2d 152, 154; Utica Nat'l Bank and Trust v. Associated Producers, Co.,......
  • State v. Torres, No. 96996
    • United States
    • Oklahoma Supreme Court
    • February 24, 2004
    ...Chickasha in the court file. . . ." 10. First Federal Savings & Loan Ass'n v. Nath, 1992 OK 129, ¶10, 839 P.2d 1336; Davidson v. Gregory, 1989 OK 87, ¶11, 780 P.2d 11. Schuman's v. Missy Dress Co., 1935 OK 471, ¶0, 44 P.2d 862. 12. Title 59 O.S. Supp. 2002 §1332(C)(5), see note 2, supra. 13......
  • State v. Torres, No. 96,996.
    • United States
    • Oklahoma Supreme Court
    • February 24, 2004
    ...Chickasha in the court file...." 62. First Federal Savings & Loan Ass'n v. Nath, 1992 OK 129, ¶ 10, 839 P.2d 1336; Davidson v. Gregory, 1989 OK 87, ¶ 11, 780 P.2d 63. Schuman's v. Missy Dress Co., 1935 OK 471, ¶ 0, 44 P.2d 862. 64. Title 59 O.S. Supp.2002 § 1332(C)(5), see note 2, supra. 65......
  • Request a trial to view additional results

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