Petition to Vacate Void Judgment

IN THE DISTRICT COURT IN AND FOR
OSAGE COUNTY STATE OF OKLHOMA

Delbert Doe,

                      Plaintiff,

vs.                                                  No. ___________________

Ken Jones, an individual

Air-X-limited, Inc.

and

First National Bank of Pawhuska,

                         defendants

=======================================

Petition to vacate void judgments associated with Osage County case number CJ-97-187 under authority of Oklahoma Statute Title 12, Sections 1038 / judicial notice

Judicial Notice

This court is noticed: (1). Party petitioning to vacate judgments is proceeding via collateral attack, (2). Party collaterally attacking void judgments is invoking the ministerial side of the court – the court is deprived of judicial discretion, (3). Party asserting that the court had jurisdiction has the burden of proof to show on the record that the court had jurisdiction, and (4). Where the face of the record verifies jurisdictional failings, the court has a non-discretionary duty to vacate the void judgment(s). No mischief by this court such as dismissal of this petition, sua sponte or otherwise or inappropriately setting the matter for hearing will be tolerated.

Brief in support of petition to vacate the award of attorney fees
for Ken Jones and Air-X-Limited, Inc. as facially void.

This court lacked subject matter jurisdiction to compel Delbert Doe, plaintiff on cross claim in case number CJ-97-187, to pay attorney fees in the amount of $28,893.75 to defendants Ken Jones and Air-X-Limited. The American Rule provides that status as prevailing party is presumptive on the part of defendants and as such is insufficient to invoke the court’s power to overrule the American rule that defendants in an action cannot compel the plaintiff to pay their legal fees. See Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855, (U.S. 05/29/2001). It is also true: Oklahoma law occurring at 12, O.S. § 2011 B 2(a) prohibits sanction of a represented party.

Conclusion

This court has actual knowledge that the record made in CJ-97-187 verifies (1). Delbert Doe was the plaintiff against defendants Ken Jones and Air-X-Limited, Inc. and (2). Delbert Doe was represented by counsel in case number CJ-97-187 requiring this court’s order vacating the award of attorney fees to be paid by Delbert Doe in the sum of $28,893.75 and compelling Ken Jones and Air-X-Limited, Inc. to repay Delbert Doe the sum of $28,893.75 plus statutory interest from the time of taking applied to the remaining balance until fully repaid to Delbert Doe.

Brief in support of petition to vacate First National Bank of Pawhuska’s judgment in case number CJ-97-187 as facially void.

The trial court lacked subject matter jurisdiction to award damages to First National Bank of Pawhuska absent prove up of the Bank’s claim. Trial court could not award damages to plaintiff, following default judgment, without requiring evidence of damages. Razorsoft, Inc. v. Maktal, Inc., Okla.App. Div. 1, 907 P.2d 1102 (1995), rehearing denied. A party is not in default so long as he has a pleading on file which makes an issue in the case that requires proof on the part of the opposite party in order to entitle him to recover. Millikan v. Booth, Okla., 4 Okla. 713, 46 P. 489 (1896). Proof of or assessment of damages upon petition claiming damages, it is error to pronounce judgment without hearing proof or assessing damages. Atchison, T. & S.F. Ry. Co. v. Lambert, 31 Okla. 300, 121 P. 654, Ann.Cas.1913E, 329 (1912); City of Guthrie v. T. W. Harvey Lumber Co., 5 Okla. 774, 50 P. 84 (1897). In the assessment of damages following entry of default judgment, a defaulting party has a statutory right to a hearing on the extent of unliquidated damage, and encompassed within this right is the opportunity to a fair post-default inquest at which both the plaintiff and the defendant can participate in the proceedings by cross-examining witnesses and introducing evidence on their own behalf. Payne v. Dewitt, Okla., 995 P.2d 1088 (1999). A default declaration, imposed as a discovery sanction against a defendant, cannot extend beyond saddling defendant with liability for the harm occasioned and for imposition of punitive damages, and the trial court must leave to a meaningful inquiry the quantum of actual and punitive damages, without stripping defendant of basic forensic devices to test the truth of plaintiff's evidence. Payne v. Dewitt, Okla., 995 P.2d 1088 (1999). Fracture of two toes required expert medical testimony as to whether such injury was permanent so as to allow damages for permanent injury, future pain, and future medical treatment on default judgment, and such testimony was not within competency of plaintiff who had no medical expertise. Reed v. Scott, Okla., 820 P.2d 445, 20 A.L.R.5th 913 (1991). Rendition of default judgment requires production of proof as to amount of unliquidated damages. Reed v. Scott, Okla., 820 P.2d 445, 20 A.L.R.5th 913 (1991). When face of judgment roll shows judgment on pleadings without evidence as to amount of unliquidated damages then judgment is void. Reed v. Scott, Okla., 820 P.2d 445, 20 A.L.R.5th 913 (1991). In a tort action founded on an unliquidated claim for damages, a defaulting party is deemed to have admitted only plaintiff's right to recover, so that the court is without authority or power to enter a judgment fixing the amount of recovery in the absence of the introduction of evidence. Graves v. Walters, Okla.App., 534 P.2d 702 (1975). Presumptions which ordinarily shield judgments from collateral attacks were not applicable on motion to vacate a small claim default judgment on ground that court assessed damages on an unliquidated tort claim without first hearing any supporting evidence. Graves v. Walters, Okla.App., 534 P.2d 702 (1975). Rule that default judgment fixing the amount of recovery in absence of introduction of supporting evidence is void and not merely erroneous or voidable obtains with regard to exemplary as well as compensatory damages. Graves v. Walters, Okla.App., 534 P.2d 702 (1975). Where liability of father for support of minor daughter and extent of such liability and amount of attorney's fees to be allowed was dependent on facts, rendering of final judgment by trial court requiring father to pay $25 monthly for support of minor until minor should reach age 18 and $100 attorney's fees without having heard proof thereof in support of allegations in petition was error. Ross v. Ross, Okla., 201 Okla. 174, 203 P.2d 702 (1949). Refusal to render default judgment against codefendant for want of answer was not error, since defendants and court treated answer of defendant on file as having been filed on behalf of both defendants, and since plaintiff could not recover without offering proof of damages and offered no such proof. Thomas v. Williams, Okla., 173 Okla. 601, 49 P.2d 557 (1935). Under R.L.1910, §§ 4779, 5130 (see, now, this section and § 2007 of this title), allegation of value, or amount of damages stated in petition, were not considered true by failure to controvert. Cudd v. Farmers' Exch. Bank of Lindsay, Okla., 76 Okla. 317, 185 P. 521 (1919). Hearing Trial court's discovery sanction barring defendant from using cross-examination and other truth-testing devices at post-default non-jury hearing on plaintiff's damages violated due process. Payne v. Dewitt, Okla., 995 P.2d 1088 (1999).

Unsupported contentions of material fact are not sufficient on motion for summary judgment, but rather, material facts must be supported by affidavits and other testimony and documents that would be admissible in evidence at trial. Cinco Enterprises, Inc. V. Benso, Okla., 890 P.2d 866 (1994). Statements of counsel in brief or in argument are not sufficient for a motion for summary judgment, Trinsey v. Pagliaro, D.C. Pa. 1964, 229 F. Supp. 647.

To prove up claim of damages, foreclosing party must enter evidence incorporating records such as a general ledger and accounting of an alleged unpaid promissory note. The person responsible for preparing and maintaining the account and general ledger must provide a complete accounting which must be sworn to and dated by the person who maintained the ledger. See Pacific Concrete F.C.U. V. Kauanoe, 62 Haw. 334, 614 P.2d 936 (1980), GE Capital Hawaii, Inc. v. Yonenaka 25 P.3d 807, 96 Hawaii 32, (Hawaii App 2001), Fooks v. Norwich Housing Authority 28 Conn. L. Rptr. 371, (Conn. Super.2000), and Town of Brookfield v. Candlewood Shores Estates, Inc. 513 A.2d 1218, 201 Conn.1 (1986). See also Solon v. Godbole, 163 Ill. App. 3d 845, 114 Il.

Conclusion

Without proof of damages, there are no damages: i.e. American Red Cross v. Community Blood Center of the Ozarks, 257 F.3d 859 (8th Cir. 07/25/2001). In CJ-97-187, First National Bank of Pawhuska failed to prove damages. The court, relying on statements of counsel and miscellaneous unverified documents, simply put, never had the subject matter of Delbert Doe damaging First National Bank of Pawhuska before it. The record does not verify proof of claim. First National Bank of Pawhuska’s unverified claim of damages in a sum of $316, 024.12 is facially void. The rule of law and proper administration of justice require vacating the void judgment against Delbert Doe and compelling First National Bank of Pawhuska to repay Delbert Doe all sums taken from Delbert Doe together with statutory interest from the date of taking and accruing until Delbert Doe is fully repaired.

Memorandum of law in support of the point of law that a void judgment cannot operate

The general rule is that a void judgment is no judgment at all. Where judgments are void, as was the judgment originally rendered by the trial court here, any subsequent proceedings based upon the void judgment are themselves void. In essence, no judgment existed from which the trial court could adopt either findings of fact or conclusions of law. Valley Vista Development Corp. v. City of Broken Arrow, 766 P.2d 344, 1988 OK 140 (Okla. 12/06/1988); A void judgment is, in legal effect, no judgment at all. By it no rights are divested; from it no rights can be obtained. Being worthless, in itself, all proceedings founded upon it are necessarily equally worthless, and have no effect whatever upon the parties or matters in question. A void judgment neither binds nor bars anyone. All acts performed under it, and all claims flowing out of it, are absolutely void. The parties attempting to enforce it are trespassers." High v. Southwestern Insurance Company, 520 P.2d 662, 1974 OK 35 (Okla. 03/19/1974); and, A void judgment cannot constitute res judicata. Denial of previous motions to vacate a void judgment could not validate the judgment or constitute res judicata, for the reason that the lack of judicial power inheres in every stage of the proceedings in which the judgment was rendered. Bruce v. Miller, 360 P.2d 508, 1960 OK 266 (Okla. 12/27/1960). A “void judgment” as we all know, grounds no rights, forms no defense to actions taken there under, and is vulnerable to any manner of collateral attack (thus here, by ). No statute of limitations or repose runs on its holdings, the matters thought to be settled thereby are not res judicata, and years later, when the memories may have grown dim and rights long been regarded as vested, any disgruntled litigant may reopen the old wound and once more probe its depths. And it is then as though trial and adjudication had never been. 10/13/58 FRITTS v. KRUGH. SUPREME COURT OF MICHIGAN, 92 N.W.2d 604, 354 Mich. 97

Memorandum of law in support of the point of law that party seeking to vacate a void judgment is invoking the ministerial powers of the court / courts lack judicial discretion when it comes to vacating void judgments

When rule providing for relief from void judgments is applicable, relief is not discretionary matter, but is mandatory, Orner v. Shalala, 30 F.3d 1307, (Colo. 1994). See also, Thomas, 906 S.W.2d at 262 (holding that trial court has not only power but duty to vacate a void judgment). For other authorities concurring, see Allied Fidelity Ins. Co. v. Ruth, 57 Wash. App. 783, 790, 790 P.2d 206 (1990),Bd. of Revision (2000), 87 Ohio St.3d 363, 368, Carter v. Fenner, 136 F.3d 1000, 1005 (5th Cir. 1998), Chavez v. County of Valencia, 86 N.M. 205, 521 P.2d 1154 (1974, Cincinnati School Dist. Bd. of Edn. v. Hamilton Cty, Cleveland Electric Illuminating Company v. Finesilver, No. 69363 (Ohio App. Dist.8 04/25/1996), In re Marriage of Markowski, 50 Wash. App. 633, 635, 749 P.2d 754 (1988); Brickum Inv. Co. v. Vernham Corp., 46 Wash. App. 517, 520, 731 P.2d 533 (1987), In re: Thomas, 906 S.W.2d at 262, In re: Weaver Constr., 190 Colo. at 232, 545 P.2d at 1045, Leen, 62 Wash. App. at 478, Lubben v. Selective Serv. Sys. Local Bd. No. 27, 453 F.2d 645, 649, (1st Cir. 1972),Mitchell v. Kitsap County, 59 Wash. App. 177, 180-81, 797 P.2d 516 (1990), Moore v. Packer, 174 N.C. 665, 94 S.E. 449, 450, Patton v. Diemer (1988), 35 Ohio St.3d 68 Roller v. Holly, 176 U.S. 398, 409, Small v. Batista, 22 F. Supp.2d 230, 231 (S.D.N.Y. 1998), Wright & A. Miller, FEDERAL PRACTICE AND PROCEDURE, (1973), Civil § 2862.

Prepared and submitted by: ___________________________
                                                       Delbert Doe

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