ROSS v. PACE

ROSS v. PACE
2004 OK 13
87 P.3d 593
Case Number: 98149
Decided: 02/24/2004

THE SUPREME COURT OF THE STATE OF OKLAHOMA

BETTY ROSS, Appellant,
v.
BETTY PACE, Appellee.

ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION II

¶0 Betty Ross, the appellant, filed suit against Betty Pace, the appellee, subsequent to an automobile accident. Pace filed interrogatories and requests for admission. Ross did not answer, even after a letter was sent to Ross and she replied that the answers would be late, and after a duplicate copy was then sent at the appellant's request. Pace filed a motion for summary judgment asking that the requests for admission be deemed admitted pursuant to

CERTIORARI PREVIOUSLY GRANTED;
COURT OF CIVIL APPEALS OPINION VACATED;
JUDGMENT OF THE TRIAL COURT AFFIRMED.

David C. Bean, DAVID GARRETT LAW OFFICE, P.C., Muskogee, Oklahoma, for appellant.
Adam Scott Weintraub, Tulsa, Oklahoma, for appellee.

WINCHESTER, J.

¶1 The issue is whether the trial court abused its discretion in denying the motion of the appellant, Betty Ross, to vacate a default judgment in favor of the appellee, Betty Pace. We hold that the trial court did not abuse its discretion.

I. FACTS AND PROCEDURAL HISTORY

¶2 On October 27, 2000, Ross filed a petition in the district court alleging that she entered an intersection on a green light, and began to turn left when Pace ran through a red light striking Ross's vehicle in the left side, rear panel. Ross was seriously injured by the accident.

¶3 Along with her answer denying the allegations in the petition, Pace, on December 1, 2000, filed interrogatories and requests for admission. Pace requested that Ross admit Pace had a green light; Ross had a red light; Pace had the right of way; and Ross did not have the right of way.

¶4 Pace alleged in her brief in support of her motion for summary judgment that she properly sent the discovery documents to Ross via certified mail on November 30, 2000, which Ross received on December 1, 2000. On January 8, 2001, Pace's counsel sent a letter to ask about Ross's responses to the discovery requests. On January 9, 2001, Ross's counsel called, advising that their answers would be late.

¶5 On January 15, 2001, Ross's counsel called again requesting a duplicate copy of the discovery requests. Pace's counsel sent the copy, along with a copy of the certified mail return receipt. In his cover letter he asked how long before Ross would respond to the discovery requests. He did not receive an answer.

¶6 On February 1, 2001, Pace filed a motion for summary judgment based on Ross's failure to answer the requests for admission. Pace asserted that because Ross did not respond to the requests for admission, they were deemed admitted pursuant to

II. DEFAULT JUDGMENT

¶7 Ross's attorneys stated they failed to respond because the firm was in the process of referring the file to an outside attorney. They added that the second copy of the requests for admission and the motion for summary judgment were placed with the file for referral. Therefore, they were unaware the motion was pending until March 6, 2001, when they received the court's order granting summary judgment.

¶8 Because Ross failed to respond to Pace's requests for admission within thirty days, the requests were deemed admitted.

¶9 With the conclusively established admission that at the scene of the accident Pace had both the green light and the right of way and Ross did not, summary judgment was proper since there would be no substantial controversy as to any material fact. Rules for District Courts of Oklahoma, 12 O.S.Supp.2003, ch. 2, app. 1, Rule 13(a). The issue is whether the district court abused its discretion in refusing to vacate a default judgment.

¶10 Under

¶11 "The discretion granted trial judges in opening or vacating their judgments during term extends to a reasonable degree in both directions. Unless the refusal to vacate a default judgment is an abuse of that discretion, such order is not reversible." Woodruff v. Moore,

¶12 Given the number of opportunities Ross's attorneys were afforded to respond to the requests for admission from Pace, and the notice of motion for summary judgment and the hearing set in the matter, we do not find this to be a close case. The trial court did not abuse its discretion in refusing to vacate the default judgment. Accordingly, we vacate the opinion of the Court of Civil Appeals, and affirm the judgment of the trial court.

CERTIORARI PREVIOUSLY GRANTED;
COURT OF CIVIL APPEALS OPINION VACATED;
JUDGMENT OF THE TRIAL COURT AFFIRMED.

ALL JUSTICES CONCUR

FOOTNOTES