Vannoy v. Earth Biofuels, Inc., 105853.

• Decision Date: 30 January 2009
• Docket Number: No. 105853.,Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3.,105853.
• Parties: Toby VANNOY and Mary Vannoy, Plaintiff/Appellees, v. EARTH BIOFUELS, INC., a Delaware Corporation, Defendant/Appellant.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

278 P.3d 1052

2009 OK CIV APP 22

Toby VANNOY and Mary Vannoy, Plaintiff/Appellees,

v.EARTH BIOFUELS, INC., a Delaware Corporation, Defendant/Appellant.

No. 105853.Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3.

Court of Civil Appeals of Oklahoma, Division No. 3.

Jan. 30, 2009.

Appeal from the District Court of Bryan County, Oklahoma; Honorable Mark Campbell, Trial Judge.

REVERSED AND REMANDED.

David Burrage, Burrage Law Firm, Durant, Oklahoma, for Plaintiff/Appellees.

D. Michael Haggerty, II, Haggerty Law Office, P.L.L.C., and Ken Rainbolt, Ken Rainbolt, P.C., Durant, Oklahoma, for Defendant/Appellant.

CAROL M. HANSEN, Presiding Judge.

¶ 1 Defendant/Appellant, Earth Biofuels, Inc. (Earth), seeks review of the trial court's order denying its petition to vacate a default judgment entered against it for $1,000,000.00 in favor of Plaintiff/Appellees, Toby Vannoy and Mary Vannoy (the Vannoys), in their tort action to recover for personal injury. We reverse and remand, holding 12 O.S.Supp.2002 § 2004(B)(2) requires notice of the specific amount of damages sought be given the party against whom default judgment is sought.

¶ 2 The Vannoys' petition against Earth alleged Toby Vannoy was injured as a result of Earth's negligence and sought damages “in excess of $10,000.00.” They served the petition on Earth in care of the Oklahoma Secretary of State. Earth did not answer. The Vannoys moved for default judgment, asking the trial court to set a hearing on damages. At hearing, the Vannoys put on evidence of approximately $75,000.00 in medical bills, $20,000.00 in lost wages, as well as pain and suffering and Mary Vannoy's loss of consortium. The trial court granted judgment to the Vannoys in the amount of $1,000,000.00.

¶ 3 Earth petitioned to vacate the default judgment on the grounds (1) there was irregularity in obtaining the judgment because the Vannoys did not serve Earth with a specific statement of damages, and (2) Earth was prevented by unavoidable casualty or misfortune from defending the action because it believed it had a settlement agreement with the Vannoys. The Vannoys objected, asserting District Court Rule 10, 12 O.S.2001, Ch. 2, App., provided notice of taking default is not required when the defaulting party has not made an appearance, and Earth's settlement discussions were with Toby Vannoy's employer, not with the Vannoys. The trial court denied the petition to vacate default judgment, citing Rule 10.

¶ 4 Earth appeals, contending the trial court abused its discretion in refusing to vacate default judgment granted in a tort matter in the absence of specific notice of the amount of damages sought. We agree. This matter is controlled by 12 O.S.Supp.2002 § 2004(B)(2), which provides,

A judgment by default shall not be different in kind from or exceed in amount that prayed for in either the demand...