Pryor v. MID-WEST INVESTIGATIONS & PROCESS SERVING

• Citation: 2000 OK CIV APP 22,999 P.2d 452
• Decision Date: 04 February 2000
• Docket Number: No. 92,535.,92,535.
• Parties: Jack I. PRYOR, Plaintiff/Appellant, v. MID-WEST INVESTIGATIONS & PROCESS SERVING, INC., Defendant/Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

999 P.2d 452

2000 OK CIV APP 22

Jack I. PRYOR, Plaintiff/Appellant, v. MID-WEST INVESTIGATIONS & PROCESS SERVING, INC., Defendant/Appellee.

No. 92,535.

Court of Civil Appeals of Oklahoma, Division No. 1.

February 4, 2000.

Jack I. Pryor, Norman, Oklahoma, Appellant, Pro se.

Derrick T. DeWitt, Oklahoma City, Oklahoma, For Appellee.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.

OPINION

CARL B. JONES, Presiding Judge:

¶ 1 Plaintiff/Appellant took a default judgment in small claims court against Defendant/Appellee. Defendant filed a timely Motion to Vacate Judgment which was granted. Plaintiff appeals that order vacating the previously granted judgment.¹ Plaintiff appears pro se.

¶ 2 This Court's review of an order vacating a default judgment is limited by the following principles:

"It is the policy of the law to afford every party to an action a fair opportunity to present his side of a cause..... [A]n order vacating judgment will not be disturbed on appeal unless it clearly appears that the trial court has abused its discretion. Such discretion should always be exercised to promote the ends of justice, and a much stronger showing of abuse of discretion must be made where a judgment has been set aside than where it has been refused."

Midkiff v. Luckey, 1966 OK 49, 412 P.2d 175, 177 and cases cited therein.

¶ 3 In addition to vacating the default judgment, at the same hearing the trial court denied a motion of the Plaintiff which essentially was an objection to Mr. McKee (Defendant's president and owner and a non-lawyer) appearing on behalf of the corporate defendant. The trial court pointed out to Plaintiff that an Oklahoma Bar Association Rule found at 5 O.S.1999 Supp., Ch. 1, App. 1, § 6, permits a corporate officer to appear on behalf of the corporation in small claims courts.² Plaintiff's motion/objection was properly overruled.

¶ 4 Appellant raises several issues on appeal: (1) that service of process pursuant to 12 O.S. Supp.1996 § 2004(C)(6)³ creates a rebuttable presumption that a defendant served with process pursuant to that section has actual knowledge of the pending hearing and that the default judgment rendered could only be vacated if the defendant denied under oath that he knew about the hearing;⁴ (2) that the default judgment should not have been vacated because there was substantial evidence that the previous attempts at service had failed because defendant was intentionally evading service; (3) that appellant was denied due process because the president of defendant corporation, a non-lawyer, was allowed to represent the corporation in small claims court; and (4) the defendant's president breached his fiduciary duty to the corporation and the trial court should have thus refused to allow its president, Mark McKee, to represent the corporation in small claims court.

¶ 5 As is typical of small claims cases, the record is sparse. The hearing on the Motion to Vacate was not transcribed but a narrative statement in lieu of transcript was prepared by Plaintiff and approved by the trial court pursuant to Rule 1.30, Oklahoma Supreme Court Rules, 12 O.S. Supp.1998, Ch. 15, App. A hearing was held for the purpose of approving the narrative statement where the trial judge added some clarification. The trial court clarified for the Plaintiff why Mr. McKee, as president of the Defendant corporation could appear on the corporation's behalf in small claims court. There is no question that this is permissible in Oklahoma small claims courts. The record reflects that the trial court reviewed the Defendant's affidavit and found good cause to grant the Motion to Vacate. The Motion to Vacate is in the record, but the Defendant's affidavit which was relied upon by the trial court is not found.

¶ 6 Legal error may not be presumed from a silent record; it must be affirmatively demonstrated. On review, we always indulge in the presumption that a trial court's decision is correct; every fact not disputed by the record must be regarded as supporting the trial court's judgment. First Federal Savings and Loan Association v. Nath, 1992 OK 129, 839 P.2d 1336, 1342. The appellant has the responsibility for incorporating into the appellate record all materials necessary to secure corrective relief from the trial court's adverse decision. Davidson v. Gregory, 1989 OK 87, 780 P.2d 679, 682.

¶ 7 Regarding service of process, at issue is the service of a Fourth Alias Petition. Because of previous unsuccessful attempts to serve the Defendant, the Fourth Alias Petition and Order to Appear was posted on the front door of Defendant's business address, was mailed by certified mail, return receipt requested (restricted delivery), and by regular first class mail to Defendant's business address. There is no evidence that Defendant received any of these attempts at service. After the default judgment was granted, Plaintiff's attempts to execute on the judgment resulted in Defendant's filing the Motion to Vacate.

¶ 8 Although it is possible that the Defendant was aware of the attempts to serve him ...