Spirgis v. Circle K Stores, Inc.

Decision Date09 June 1987
Docket NumberNo. 4,No. 65847,65847,4
Citation743 P.2d 682,1987 OK.CIV.APP. 45
Parties1987 OK CIV APP 45 Michael Stephen SPIRGIS, Appellant, v. CIRCLE K STORES, INC., Appellee. of Appeals of Oklahoma, Division Court of Appeals of Oklahoma, Division
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Steve S. Smith, Morris, Bailey & Associates, Midwest City, for appellant.

Georgiana T. Hammett, King, Roberts & Beeler, Oklahoma City, for appellee.


The central question in this appeal is whether District Court Rule 4(e), 12 O.S.Supp.1986, ch. 2, app., requires that summary judgment be granted to a movant when the opposing party does not file a brief in opposition. We hold that it does not and reverse.


On April 25, 1985, Michael Stephen Spirgis filed a petition in the District Court of Oklahoma County seeking $75,000 damages from Circle K Stores, Inc., for an injury he incurred on October 6, 1984, when he stepped into a pothole in the business parking lot of a Circle K retail store.

In its answer, Circle K denied all of Spirgis' allegations and raised the defenses of contributory negligence, intervening negligence of a third party, and the open and obvious nature of the defect. Circle K submitted interrogatories to Spirgis and took his deposition. Both the interrogatory answers and the transcript of Spirgis' deposition are a part of the record on appeal. Both establish that Spirgis had parked his automobile at the gas pump "island," was making his way to the store and avoiding automobile traffic in the Circle K driveway when he stepped into the pothole, injuring his foot and leg.

Circle K moved for summary judgment upon the basis that the hazard was a patent and obvious danger, and that it could not be held liable for an injury resulting from such a danger. Buck v. Dell City Apartments, 431 P.2d 360 (Okla.1967). Spirgis did not timely file a response to the summary judgment motion. The trial court, in granting judgment for Circle K, found:

[D]efendant's Motion and Brief in Support of Motion for Summary Judgment was filed on December 4, 1985, and that Plaintiff failed to respond. Defendant's Motion should therefore be deemed confessed and said Motion was granted in favor of defendant.

The trial court denied Spirgis' motion to vacate the judgment. Spirgis appeals.


On appeal, Spirgis claims that the motion for summary judgment should not have been sustained because material questions of fact remain in controversy. He specifically argues that the pothole was not an open and obvious danger because traffic in the area could have been expected to and did divert his attention from the danger.

On the other hand, Circle K maintains that the merits of the motion for summary judgment need not be examined because Spirgis' failure to respond dictates that it be granted judgment. Circle K argues that Oklahoma District Court Rule 4(e), 12 O.S.Supp.1986, ch. 2, app., requires this result. Basically, Circle K argues that even if its motion was lacking in merit, it was still entitled to a default judgment because Spirgis failed to file a timely response in opposition to the motion. That is a contention with which we cannot agree.

Rule 4(e) provides:

Any party opposing a motion, except those enumerated in Section c above, shall serve and file a brief or a list of authorities in opposition within fifteen (15) days of the service of the motion, or the motion shall be deemed confessed. (Emphasis added.)

On the other hand, the more specific district court rule dealing with summary judgments, Rule 13, provides in pertinent part:

If the adverse party or parties wish to oppose the granting of the motion, they shall serve on the moving party and file with the court clerk within fifteen days after service of the motion a concise written statement of the material facts as to which he or they contend a genuine issue exists and the reasons for denying the motion. The adverse party shall attach to the statement affidavits and other materials containing facts that would be admissible in evidence, but the adverse party cannot rely on the allegations or denials in his pleading. In the statement, the adverse party or parties shall set forth and number each specific material fact which is claimed to be in controversy and reference shall be made to the pages, paragraphs, and/or lines of the depositions, admissions, answers to interrogatories and to requests for admissions, affidavits, exhibits and other materials whether filed by the moving party or by the adverse party, and he shall attach to the statement the portions relied upon. All material facts set forth in the statement of...

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    ...Hospital Auth., 1993 OK 85, 859 P.2d 1081, 1084.33 Carmichael v. Beller, 1996 OK 48, 914 P.2d 1051, 1053.34 Spirgis v. Circle K Stores, Inc., 1987 OK CIV APP 45, 743 P.2d 682, 684-85 (approved for publication by the Supreme Court).35 Hargrave, supra note 31 at 55. The function of summary pr......
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