Weeks v. Wedgewood Village, Inc.

• Decision Date: 01 June 1976
• Docket Number: Nos. 47624 and 47625,s. 47624 and 47625
• Citation: 554 P.2d 780,1976 OK 72
• Parties: Michael John WEEKS, a minor, by and through his father and next friend, M. M. Weeks, and M. M. Weeks, Appellants, v. WEDGEWOOD VILLAGE, INC., an Oklahoma Corporation whose authority to do business in Oklahoma was suspended at all times material to this action but which has now been reinstated, et al., Appellees.
• Court: Oklahoma Supreme Court

Page 780

554 P.2d 780

Michael John WEEKS, a minor, by and through his father and next friend, M. M. Weeks, and M. M. Weeks, Appellants, v. WEDGEWOOD VILLAGE, INC., an Oklahoma Corporation whose authority to do business in Oklahoma was suspended at all times material to this action but which has now been reinstated et al., Appellees.

Nos. 47624 and 47625.

Supreme Court of Oklahoma.

June 1, 1976.

Rehearing Denied Sept. 21, 1976.

Jack B. Sellers, Sapulpa, for appellants.

Robert K. Ball, and Barton J. Johnson, Watts, Looney, Nichols, Johnson & Hayes, Oklahoma City, for appellees.

HODGES, Vice Chief Justice.

Michael John Weeks, a minor, by and through his father and next friend, M. M. Weeks, and M. M. Weeks, individually, appellants, filed petitions to recover damages against the appellees, Diana Hogue and Cindy Ball, for injuries Michael John Weeks sustained when he dived into the unmarked shallow end of the swimming pool at Wedgewood Village Amusement Park. After consideration of the motions for summary judgment based on the affidavits and depositions filed in the case, the court sustained the motions in compliance with 12 O.S.1971, Ch. 2, App. Rule 13. ¹ Appellants appeal the order.

It is asserted on appeal that appellants have been denied due process and equal protection of the laws since no notice of the hearing at which the motions were sustained was given to appellants, the court acted in the absence of appellants, and because the court reporter did not transcribe the proceedings as required by the Oklahoma statutes. ²

After the case was at issue and considerable discovery made by appellants' attorney, the case was set for trial on April 2, 1974. On April 2 it was announced in open court that appellants had settled a portion of the lawsuit for $100,000.00 against Wedgewood Village, Inc., and their management defendants, Maurice G. Woods, Theresa J. Woods, Henry F. Featherly, and Nora Wells. This left remaining the actions pending against Diana Hogue and Cindy Ball, appellees. It was also announced in open court at the same time that appellee would move for summary judgment. The case did not proceed to trial and was stricken from the trial docket. Motions for summary judgment were thereafter timely filed on April 4, 1974, with supporting brief and depositions on behalf of Diana Hogue, and shortly thereafter for Cindy Ball.

Copies of the motions for summary judgment and brief attached thereto were forwarded to appellants' attorneys the 4th day of April, 1974. On April 16, 1974, attorney for appellants wrote the district judge, with copies to appellees' attorneys, advising he had received notice of the hearing for summary judgment set April 19, 1974, at 9:30 A.M., and requested that the case be set over to April 26, 1974, at 9:30 A.M., in view of conflicts in his schedule.

On April 19, 1974, appellants' attorney was notified by appellees' attorney that appearances had been made April 19 on the docket of Judge Smith for hearing on the motion for summary judgment--the mail with appellants' attorney's letter of April 16 not yet having arrived--but the court had checked and found that appellants' attorney was otherwise engaged in trial and, therefore, passed the case to May 3, 1974, for hearing on the motions. Also, at the direction of the court, appellees' attorney advised appellants' attorney as follows:

'The Judge also indicated that you had not filed a Response and further indicated that if there was some question of fact upon which you are relying that this should be given to the court for his consideration in the proper form before then.'

A copy of the letter was furnished to the court.

Appellants' attorney acknowledged receipt of the notice of the hearing being set over to May 3 by letter to the Judge April 22, 1974, and again asked that the case be continued from May 3 to a later date. The court acknowledged appellants' attorney's letter April 25, 1974, stating there would be a hearing set for May 17 to accommodate appellants' attorney's conflict, but with the following admonition:

'I will expect a response to the motions to be filed prior to that date along with affidavits, interrogatories, depositions, etc., attached which on behalf of the plaintiff raises a question of fact.'

In addition to that notice, May 3, 1974, the original attorney for the defendant, Wedgewood Village, Inc., who had previously settled with appellants' attorney, advised appellants' attorney and appellees' attorneys that he was withdrawing as attorney of record, and further advised and confirmed that the court anticipated all other attorneys to appear at the regular motion docket on May 17, 1974, for hearing the motions for summary judgment. The hearing was passed from May 17 to May 31, 1974. Appellants' attorney did not appear on either date, nor did he furnish the court with the responses requested on two different occasions, i.e., April 19 and April 25.

We believe appellants' attorney had adequate notice of the hearing. He did not appear at the scheduled May 17 hearing, nor did he comply with the court's request for documentation of evidence to establish a question of fact on behalf of appellants. The May 17 hearing was set to accommodate appellants' attorney at his request. He was thereafter charged with notice and diligence to ascertain the time of the next hearing.

Although appellant asserts a per se denial of due process based on the fact that there was no court reporter or record made of an alleged proceeding held on May 31 in his absence, there were no proceedings held, except appearances, and when the appellants' attorney failed to appear, no further evidence was taken. The court clearly states in its judgment and order:

'. . . It was further noted by the court that Jack Sellers had not complied with the Court's letter of April 25, 1974, requiring plaintiffs' attorney to respond to the motions for summary judgment on any matters which plaintiff considered to raise a question of fact.'

'The court therefore considered the motions for summary judgment, the affidavits and depositions filed in said cause, and there being no genuine issues of fact presented, plaintiffs' counsel not complying with the court's instructions of April 25, 1974, and plaintiffs' counsel not appearing to offer any argument, this court finds that the motions for summary judgment of Diana Hogue and Cindy Ball should be sustained.'

The Oklahoma Court of Criminal Appeals addressed itself to this question in Higgins v. State, 506 P.2d 575, 578 (Okl.Cr.1973) in which it determined 20 O.S.1971 § 106.4 did not mandate the recordation of testimony in all instances and that a statutory right may be waived either by express agreement or conduct. We find no violation of due process. The judge did not refuse to have the proceedings transcribed. There were simply no proceedings held. Appellant may not fail to comply with the order of the court, not attend the scheduled proceedings or fail to request that the proceedings be transcribed and then allege denial of due process.

Appellants also assert it was error for the court to sustain the motions for summary judgment. There is no inference that there was any further testimony introduced or facts submitted, other than those which had been in the possession of appellants' attorney since April 4, 1974. Appellants had been instructed on two occasions to prepare a response and submit it to the court for consideration. A party cannot rely on his own pleadings in opposition to affidavits and depositions supporting a motion for summary judgment. ³ The mere assertion in a pleading, when attacked by a motion for summary judgment supported by proof of specific facts in the form of an affidavit or deposition, places on the author of the statement the obligation to present something which will show that when the date of trial arrives, he will have some proof to support the allegations in the pleadings. He cannot withhold this showing until the time of trial. ⁴

The responses were not filed nor were any affidavits or other materials filed in opposition to the motion as authorized by Rule 13. ⁵ Neither was it alleged that evidence to support appellants' allegations would be available at the time of trial. The ruling on motions for summary judgment is to be made on the record the parties have actually presented and not on a record which is potentially possible. ⁶ Summary judgment should be granted where facts set forth in detail in affidavits, depositions, admissions on file, and other competent extraneous materials show there is no substantial controversy as to any material fact. ⁷ The mere denial in a pleading, repeated in an affidavit unsupported by any proof is not sufficient to require the credibility of the opposing party to be determined on trial. Motions for summary judgment do not admit all the well-pleaded facts in a petition. Although the allegations of the pleadings standing alone may raise an issue of material fact, summary judgment is not to be denied if other documentation pertinent to the motions palpably show the...