Enochs v. Martin Properties, Inc., 88351

• Citation: 1997 OK 132,954 P.2d 124
• Decision Date: 28 October 1997
• Docket Number: No. 88351,88351
• Parties: Chester ENOCHS, Petitioner, v. MARTIN PROPERTIES, INC., d/b/a Baxter Discount Tires, and/or Bud Martin, No Insurance, and the Workers' Compensation Court, Respondents.
• Court: Supreme Court of Oklahoma

Page 124

954 P.2d 124

1997 OK 132

Chester ENOCHS, Petitioner, v. MARTIN PROPERTIES, INC., d/b/a Baxter Discount Tires, and/or

Bud Martin, No Insurance, and the Workers'

Compensation Court, Respondents.

No. 88351.

Supreme Court of Oklahoma.

Oct. 28, 1997.

William J. Anton, Tulsa, for Petitioner.

Albert M. Morrison, Oklahoma City, for Respondents.

OPALA, Justice.

¶1 The critical issue on certiorari is whether there was error in the Court of Civil Appeals' [COCA] disposition of this case by striking testimony adduced by respondent Bud Martin and directing that, on remand, an award be entered for the claimant. We answer in the affirmative and remand the cause to COCA with appropriate instructions.

I THE ANATOMY OF LITIGATION

¶2 Chester Enochs [Enochs or claimant] was employed by Baxter Discount Tire [Baxter Tire] when he sustained injuries by falling off a ladder. Enochs' Form 3 listed Baxter Tire as the sole respondent. At the hearing on his claim, Enochs orally amended his Form 3 to include Martin Properties, Inc., d/b/a Baxter Discount Tire and/or Bud Martin. No legal counsel was present either for Martin Properties, Inc. or for Baxter Tires. Bud Martin [Martin] appeared pro se. He testified that (a) Martin Properties, Inc. is the "parent corporation" of Baxter Tire, (b) he and his wife are the sole shareholders of Martin Properties, Inc. and (c) the business has no compensation insurance. Martin argued that Enochs' injuries did not arise out of or in the course of his employment. His defense relied on his testimony and that of Dennis Snook (Enochs' immediate supervisor at Baxter Tire). The trial tribunal and a three-judge review panel both denied Enochs' claim for lack of evidentiary support. Enochs then brought the review proceeding that is presently on certiorari.

¶3 The Court of Civil Appeals [COCA] vacated the panel's order and remanded the cause with instructions to "enter judgment for the claimant." Its opinion struck from the record all testimony presented by Martin, holding that there was error in allowing the corporation to appear and defend itself solely by a nonlawyer shareholder (Martin), in violation of Rule 7 of the Workers' Compensation Court. ¹ The COCA opinion is silent ¶4 We granted certiorari on the respondents' petition and now vacate COCA's opinion for the reasons to be explained in Parts III through V, infra. We remand the case to the Court of Civil Appeals for review, to be conducted on the full record developed before the trial tribunal and unhampered by the perceived challenge to Martin's appearance as a nonlawyer representative for the corporate respondents. ²

on Martin's status qua individual party respondent in the claim. Because no respondent had either appeared before the review panel or submitted a brief before COCA, the appellate court pronounced that it was not required to search the record for evidence that would rebut the allegations in Enochs' brief. On review of the remaining portions of the record (consisting solely of Enochs' evidence), the appellate court held that (a) Enochs' "unrebutted testimony" that his injuries arose out of and in the course of his employment supports the relief sought and (b) the trial tribunal erred as a matter of law in ruling that Enochs failed to meet his burden of proof.

II APPELLATE PROCEDURE

¶5 The respondents, Martin Properties, Inc., Baxter Tire and Martin, filed no answer brief before COCA. They now seek by certiorari our review of the appellate court's opinion.

¶6 Defaulting in the COCA for want of brief does not by itself preclude an unsuccessful party's access to certiorari process. See in this connection Hough v. Leonard. ³ Reversal is never automatic on a party's failure to file an answer brief. ⁴ When the record presented fails to support the error alleged in the brief of the party who lost below, the decision to be reviewed cannot be disturbed. It is presumed correct until the contrary is shown by the record. ⁵

III ¶7 MARTIN'S STATUS AS AN ACCEPTED REPRESENTATIVE OF THE CORPORATE RESPONDENTS AT THE HEARING BEFORE THE TRIAL TRIBUNAL WENT UNCHALLENGED BELOW AND WAS HENCE NOT PRESERVED FOR EITHER APPELLATE OR CERTIORARI REVIEW

¶8 Claimant's counsel gave the trial judge his general understanding of the law that governs the representation of corporate entities at compensation hearings. ⁶ His observations did not rise to the dignity of an interposed objection to Martin's appearance for the corporate respondents. The claimant ¶9 Even if the transcript were sufficient to show an interposed objection to Martin's appearance, it was clearly waived by claimant's failure to press the same challenge as part of his appeal to the three-judge review panel. ⁷ By his notice of appeal to that panel, claimant had urged no more than that the trial tribunal's order is both (a) without evidentiary support and (b) contrary to law. ⁸ Error not raised before the review panel cannot be considered either in the COCA or by this court. ⁹

had an affirmative duty to challenge Martin's authority, as an unlicensed legal practitioner, to appear for anyone but himself. That he did not do.

IV ¶10 COCA'S ORIGINAL DECLARATION OF RESPONDENTS' DEFAULT SANS ADVANCE NOTICE TO THEM IS CONTRARY TO LAW

¶11 On this record, there appears to be another impediment to COCA's original declaration that held the corporate respondents to be in default. Even if COCA had been correct and Martin's appearance for anyone but himself (individually) was legally ineffective, the corporate respondents had no notice of their default for want of appearance in the case.

¶12 The trial tribunal had not declared them to be in default. Rather, it had accepted Martin as a recognized representative for all the respondents. His capacity to represent the other two respondents stood unchallenged before the three-judge panel. Neither the trial tribunal's orders (that which was made by the trial judge and that by the review panel) nor any interposed objection pressed by the claimant pronounced the corporate parties as defaulting respondents.

¶13 District court procedure for advance notice of default, ¹⁰ which governs in the Workers' Compensation Court (for want ¶14 In short, because the trial tribunal had accepted Martin's evidence in behalf of all the respondents in the claim, an appellate court was powerless to reject it without proper showing that the proof was wrongly adduced and without affording the respondents--all declared to be in default--advance notice with an opportunity to cure the defect.

                of a specific rule on this point 11), was the respondents' due before the COCA-ordered default could be taken against them. 12  That much is required by Rule 10, the applicable legal norm. 13  Since the trial tribunal--at both of its levels--had accepted Martin as representing himself and as a representative for the corporate respondents, all these entities must be treated as having made an appearance in the case. 14  Parties who make an appearance cannot be adjudged in default without advance notice.   An appellate court's decision that originally declares these respondents--all of whom appeared below--to be in default sans opportunity to cure the deficiency offends the procedure that obtains in the compensation court. 15
                

V ¶15 MARTIN'S EVIDENCE IS TO BE TREATED AS HAVING BEEN ADDUCED IN JOINT DEFENSE

¶16 The trial tribunal admitted Martin's testimony as proof of a joint defense that is effective in behalf of all the respondents. COCA doubtless took the view that, when allowing Martin to adduce evidence in joint defense, the trial tribunal was authorizing him to make an impermissible appearance for all the respondents to be affected by the elicited testimony. This incorrect position cannot be sustained.

¶17 A joint proffer of evidence is, as a general rule, good if it serves alike all the jointly named parties. ¹⁶ The evidence elicited by one defendant inures to the benefit (or detriment) of all others who are situated alike. It can be set aside only upon a showing of error. At common law, a common defense had to be effective in the same sense in order to protect all persons in behalf of whom it was jointly offered. ¹⁷ If evidence favors more than one respondent, it will be deemed to inure to the benefit of them all. ¹⁸

Martin's proof adduces defenses available not only to him as an individual, but also to the other respondents in the claim.

¶18 By striking all evidence adduced by Martin, COCA impermissibly denied him any status in the case, even that of a named pro se respondent. The mere fact that he tendered evidence in joint defense available to all the respondents did not per se constitute an impermissible appearance on behalf of the corporate respondents and cannot hence be stricken from the record. As an individual respondent, Martin could elicit proof that would inure to the benefit of not only himself, as an individual, but also of the corporate respondents as well. Because Martin was presumptively acting in behalf of all respondents in the case, the evidence he adduced must be considered as joint proof for all the parties respondent.

¶19 Moreover, since proof adduced by Martin was treated by the trial tribunal and by the parties (for want of an objection) as evidence for all the respondents, an appellate court must presume that all the parties had intended the adduced proof to stand incorporated into the record tendered for review. ¹⁹

SUMMARY

¶20 Upon its earlier COCA default for want of a brief, an unsuccessful party before COCA is not barred from seeking certiorari.

¶21 A perceived challenge to Martin's appearance on behalf of the corporate respondents, which was not reasserted before the trial tribunal's review panel, cannot be considered to have been preserved for review either in the COCA or by this court.

¶22 The record affords no basis for COCA's original declaration that all the respondents in the claim were in default for want of authorized appearance in...