Gearhart Industries, Inc. v. Grayfox Operating Co.
| Decision Date | 14 April 1992 |
| Docket Number | No. 76859,No. 3,76859,3 |
| Citation | 1992 OK CIV APP 44,829 P.2d 1005 |
| Parties | 1992 OK CIV APP 44 GEARHART INDUSTRIES, INC., Appellant, v. GRAYFOX OPERATING COMPANY, Appellee. Court of Appeals of Oklahoma, Division |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Appeal from the District Court of Pawnee County; Robert J. Scott, Judge.
AFFIRMED.
Don E. Gasaway, Tulsa, for appellant.
James M. Hinds, Tulsa, for appellee.
Appellant Gearhart Industries, Inc. (Plaintiff below), seeks review of the trial court's order dismissing Plaintiff's Petition to Vacate Default Judgment. Plaintiff argues on appeal no notice of default judgment and objects to an award of attorney fees to Appellee Grayfox Operating Company (Defendant).
Plaintiff filed its original petition in the trial court on January 7, 1983, alleging monies owed on a contract. Defendant timely answered and filed a cross-petition praying for damages and attorney fees. On March 4, 1985, a Journal Entry of Judgment was filed in District Court dismissing Plaintiff's petition and awarding Defendant judgment and attorney fees on Defendant's cross-petition. Four years later, on March 9, 1989, Plaintiff filed its Petition to Vacate Default Judgment, alleging fraud, mistake, neglect, irregularity in obtaining judgment, and omission of the clerk in that no notice was given to the Plaintiff. Defendant answered and asked for attorney fees.
On July 11, 1990, the trial court issued its order dismissing Plaintiff's motion to vacate, noting Plaintiff's failure to submit two memorandums of law and an amended petition as ordered by the Court. The trial judge decreed Plaintiff's petition to vacate barred by the statute of limitations, and awarded Defendant costs. Plaintiff's Motion for New Trial was overruled, and we now address the issues on appeal raised by Plaintiff.
The crux of Plaintiff's argument (as best we can determine) is that the Journal Entry of March 4, 1985, was obtained by fraud and without notice to Plaintiff, therefore the trial court has the power to vacate the judgment pursuant to 12 O.S. § 1031. While the trial court unquestionably has the authority to vacate its orders, the limitation provisions of 12 O.S. §§ 95 and 1038 apply to the case at bar.
Assuming Plaintiff's claim concerning lack of notice to be true, we find Plaintiff had constructive notice of the Journal Entry filed March 4, 1985, and the two year limitation period of § 95(3) for fraud began to run. Therefore, Plaintiff's petition to vacate was barred from being brought more than two years after the judgment was entered of record. The District Court correctly found the present action was barred by the statute of limitations. In reviewing judgments which are not void on their face, as we have determined in this case, we cannot consider matters outside the judgment roll. Panhandle Royalty Co. v. Farni, 747 P.2d 932, 934 (Okl.1988). It is not necessary that Plaintiff have actual notice of the fraud. Mattheuson v. Hilton, 321 P.2d 396, 397 (Okl.1958). Constructive notice of fraud from public records, required by law to be kept, is sufficient to set the statute of limitations in motion. In re Woodward, 549 P.2d 1207 (Okl.1976).
Where the means of discovering fraud are in the hands of the party being defrauded, and the defrauding party has not covered up his fraud to the extent it would be difficult or impossible to discover the defrauded party will be deemed to have had notice of fraud from the date the means of discovering such fraud came into his hands, and fraud will be deemed to have been discovered upon that date. See Woodward, 549 P.2d at 1209. We find in the present case Plaintiff failed to exercise ordinary diligence that would have discovered the alleged fraud.
Finally, Plaintiff accurately states the general rule that default judgments are viewed with disfavor. However, each case must depend on the facts of the particular case and a petition to vacate a judgment is addressed to the sound legal discretion of the trial court. Chestnut v. Billings, 452 P.2d 138 (Okl.1969). We find no abuse of discretion.
A separate hearing was held on September 24, 1990, to determine attorney fees. The trial court awarded Defendant...
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