Date: 09-14-2013

Case Style: Linda R. Garner v. Leisha V. Everett, D.D.S.

Case Number: CJ-2013-195

Judge: Gary E. Miller

Court: District Court, Canadian County, Oklahoma

Plaintiff's Attorney: Nathan D. Richter

Defendant's Attorney: Kenneth A. Tillotson

Description: Linda R. Garner sued Leisha V. Everett, D.D.S., John Doe/ Jane Doe Dental Assistants and Leisha V. Everett, DDS, P.C. on negligence theories claiming:

1. This is a civil action for the recovery of money damages for personal injuries sustained by Plaintiff and caused by the negligence of the Defendants.

2. Plaintiff is and was at all times relevant a resident of Canadian County, Oklahoma.

3. Defendant, Leisha V. Everett, D. D. S., upon information and belief is and was, at all times relevant herein, a resident of Canadian County, Oklahoma. Defendant, at all material times hereto, was and is a licensed dentist practicing her profession in the City of Mustang, Canadian County, State of Oklahoma, and holding herself out publicly, and particularly to this Plaintiff, as a licensed, skilled, competent, and careful dentist.

4. Defendants, Dental Assistants and/or Dental Technicians 1-3, are persons employed by Defendant Everett and/or Defendant Everett, PC, as assistants and/or technicians in the practice of dentistry whose actions and/or omissions caused and/or contributed to cause the injuries referenced herein below. All references to “Defendants” herein include John Does 1-3 herein below.

5. Defendant, Leisha V. Everett, DDS, PC, is a domestic for profit professional corporation operating a dentistry business with its principal place of business in Mustang, Oklahoma, located at 1100 North Mustang Road, Mustang, Oklahoma 73064, which may be served in accordance with Oklahoma law through its Registered Agent, Leisha Von Everett located at RT 1 Box 179, Union City, Oklahoma 73090.

6. The acts complained of herein occurred in Canadian County, Oklahoma, and therefore jurisdiction and venue are appropriate in the Court, pursuant to OKLA. STAT. tit. 12, § 134.

FIRST CAUSE OF ACTION:

Professional Negliaence - Dental Malpractice

7. Plaintiff incorporates herein by reference the allegations set forth in paragraphs 1-6 supra.

8. Defendant Leisha V. Everett, DDS, P.C., is liable for the acts and omissions of its employees and/or agents, including Leisha V. Everett, DDS, by virtue of the doctrine of respondeat superior and/or agency.

9. On or about July 9, 2009, Plaintiff appeared at the location of Defendants in Canadian County, Oklahoma, for a dental procedure, specifically a surgical procedure to permanently implant lower dentures, to be performed by Defendant Leisha Everett, an employee and/or agent of Leisha V. Everett, DDS, P.C.

10. Defendant Leisha V. Everett, DDS ‘s care and treatment of Plaintiff in performing the dental procedure, specifically the aforementioned surgery, and her procedural care was below the standard of care and constituted dental negligence. Exhibit A: Affidavit of Christopher R. Bugg, DDS.

11. Plaintiff discovered the negligence in October 2012 after she was provided a copy of her panogram and obtained a second opinion from another dental practitioner regarding the surgical procedure.

12. As a direct and proximate result of the Defendants’ negligence, Plaintiff has suffered personal injuries, endured pain and suffering, incurred medical/dental expenses, and has and will continue to suffer from significant and serious permanent damage.

12. Plaintiff further alleges and states that the Defendants have been guilty of reckless disregard for the rights of Plaintiff and/or the Defendants have acted intentionally and with malice towards Plaintiffs in their care and treatment of Plaintiff, and as such Plaintiff is entitled to recover punitive damages against the Defendants.

15. Plaintiff demands judgment against the Defendants for actual damages in an amount in excess of $75,000.00 and punitive damages against the Defendants in an amount in excess of $75,000.00, together with prejudgment interest, post-judgment interest, costs of court and such other and further relief as this Court deems appropriate and just.

WHEREFORE, premises considered, Plaintiff prays this Court enter judgment in her favor and against the Defendants and awards Plaintiff actual and punitive damages, all in an amount in excess of $75,000.00, together with prejudgment interest, post-judgment interest, costs of court and such other and further relief as this Court deems appropriate and just.

Outcome: COMES ON before this Court this 2nd day of August, 2013, the above entitled matter before the undersigned Judge of the District Court of Canadian County, State of Oklahoma, upon the Petition of the Plaintiff, Linda R. Gamer. Plaintiff appears in person and with her counsel of record, Nathan D. Richter. Defendant, Leisha V. Everett, DDS, appears neither in person nor by counsel BUT WHOLLY MAKES DEFAULT. Defendant, Leisha V. Everett, DDS, PC, appears neither through its designated agent or representative nor by counsel BUT WHOLLY MAKES DEFAULT.

The Court, upon examination of the Court file herein, reviewing evidence, and hearing argument of counsel, finds as follows:

1. That Plaintiff’s Petition was filed herein on March 15, 2013.

2. Defendant, Leisha V. Everett, D. D. S., individually, was personally served with a true and correct copy of the Petition and Summons by private process server, Bob Johnston, on March 20, 2013.

3. Defendant, Leisha V. Everett, DDS, PC, was served with a true and correct copy of the Petition and Summons by private process server, Bob Johnston, through its officer or director, Leisha V. Everett, DDS, on March 20, 2013.

4. Returns of Service reflecting service of process on the Defendants was filed in this matter on April 8, 2013.

5. The deadline for Defendants’ to answer or otherwise respond to Plaintiff’s Petition was on or before April 10, 2013.

6. Defendants have failed to Answer or otherwise plead, and no entry of appearance has been filed on behalf of the Defendants.

7. Counsel for Plaintiff advised that a lawyer contacted him on behalf of the Defendants requesting an extension of the deadline to respond, which was granted. By agreement with alleged counsel for Defendants, the deadline for Defendants to respond was continued to April 24, 2013.

8. Alleged counsel for Defendant never filed an entry of appearance, nor responded on behalf of Defendants.

9. As of the date of this Judgment, no entry of appearance has been filed nor have Defendants responded or otherwise plead.

10. The Court further finds that the time in which to answer or plead to Plaintiff’s Petition has lapsed, and the Court, therefore, adjudges Defendant, Leisha D. Everett, DDS, to be wholly in DEFAULT.

11. The Court further finds that the time in which to answer or plead to Plaintiff’s Petition has lapsed, DDS, PC, to be who

12. The Plaintiff announ set forth in Plaintiff’ to have Judgment e negligence, dental m 13. The Court further fit actual and punitive, IT IS THEREFORE ORB Plaintiff is entitled to Judgment aga for professional negligence, dental] IT IS THEREFORE ORB Plaintiff is entitled to Judgment ag action for professional negligence, IT IS FURTHER ORDER] on Plaintiff’s actual damages and pu of , 2013 Canadian County, located at 301 N d the Court, therefore, adjudges Defendant, Leisha D. Everett, ly in DEFAULT. es ready for trial, and the Court finds that all of the allegations Petition are substantially true, and that the Plaintiff is entitled itered in her favor and against Defendants for professional Lipractice. ds that the Plaintiff shall schedule a hearing on damages, both nd provide notice of said hearing to the Defendant. RED, ADJUDGED AND DECREED by the Court that the nst Defendant Leisha D. Everett, DDS, on her causes of action malpractice.

IT IS FURTER, ADJUDGED AND DECREED by the Court that the nst Defendant Leisha D. Everett, DDS, PC on her causes of ental malpractice. D, ADJUDGED AND DECREED by the Court that a hearing [itive damages is scheduled before this Court on the 7TH day before the Hbnorable Gary E. Miller, in the District Court of Choctaw Street, El Reno, Oklahoma 73036.

MOTION TO VACATE

COME NOW Defendants and move this Court to vacate the default judgment obtained by Plaintiff, Linda R. Gamer, entered on August 2, 2013. In support of this Motion, Defendants show the Court as follows:

INTRODUCTION

This action was filed by Plaintiff on March 15, 2013. Defendants were served on March 21, 2013. Thereafter, Defendants hired counsel. Plaintiff and Defendants’ respective counsel began engaging in settlement discussions. The attorneys exchanged several telephone calls to discuss settlement, and a settlement demand was requested by Defendants. Additionally, Defendants requested copies of all of Plaintiff’s medical records so that a full evaluation of the claim could be made.

On May 29, 2013, Plaintiff submitted a settlement demand by correspondence to Defendants. However, no medical records were received. Thereafter, on June 19, 2013, counsel for Defendants received a letter from Plaintiff’s counsel advising that Plaintiff would move forward with her lawsuit if Defendants did not respond to the settlement demand. On June 25, 2013, Defendants’ counsel wrote to Plaintiffs counsel to advise that Defendants were interested in continuing settlement negotiations and requested the medical records necessary to evaluate Plaintiffs settlement demand. A copy is attached hereto as Exhibit “A.”

Defendants next contact from Plaintiffs counsel was a copy of the default judgment entered in this matter on August 2, 2013. At the time default was entered, Defendants’ counsel believed that they were engaged in good faith negotiations with Plaintiffs counsel to attempt a resolution of the litigation. In fact, Defendants’ counsel believed that they were under a continued agreement not to file an answer while settlement negotiations were ongoing. However, Plaintiffs counsel has since advised that he did not receive a copy of Defendants’ June 25 correspondence, and a result filed for Default Judgment. Therefore, an apparent miscommunication occurred between the parties.

ARGUMENT AND AUTHORITY

I. THE COURT SHOULD VACATE THE JUDGMENT AND ALLOW DEFENDANTS TO LITIGATE THIS MATTER.

Defendants move to vacate the default judgment under 12 O.S. § 1031 for “irregularity in obtaining a judgment or order.” Section 1031 provides the Court with statutory authority to vacate or modify its own judgment within the limitation set forth therein. Here, Defendants believed that they were engaged in ongoing settlement negotiations. Further, Defendants’ counsel believed that there was an agreement between the parties that Plaintiff would not file for a default judgnient while settlement negotiations were ongoing. The Court should exercise its authority to vacate the Default Judgment under 12 O.S. § 1031 as a result of the apparent miscommunication between the parties after Plaintiffs counsel did not receive Defendant’s counsel’s responsive correspondence.

In addition to a court’s statutory authority to vacate or modify its judgments, at common law, a court “has full control over its orders and judgments during the term1 at which they are made and may set aside the same.” Selected Investments Corp. v. Bell, 206 P.2d 989, 991 (Okla. 1949). This authority, known as “tenn-time power,” is wholly independent of any statute and is inherent in the court itself. Id. The decision to exercise this authority to vacate a default judgment is left to the discretion of the trial court, but such discretion “should always be exercised to promote the ends of justice by permitting a litigant to have his day in court.” Petroleum Rental Serv ‘s, Inc. v. Inter-South Properties Corp., 749 P.2d 130, 134 (Okla. Ct. App. 1987). The Oklahoma Supreme Court has stated that “because litigants are entitled to a fair day in court, policy encourages actions being tried on the merits [and] default judgments are not favored.” Nelson v. Nelson, 1998 OK 10, ¶ 21, 954 P.2d 1219, 1227. See also Girkin v. Cook, 1973 OK 118, ¶ 17, 518 P.2d 45, 49; Singleton v. LePak, 1967 OK 37, ¶ 10, 425 P.2d 974, 977; Cox v. Williams, 1954 OK 269, ¶ 6, 275 P.2d 248, 249; Crussell v. Osborn, 592 P.2d 984, 985 (Okla. Ct. App. 1 979)(stating that “default judgments are never favored). To that end, it is the “policy of the law to afford every party to an action an opportunity to present his side of the case.’ Id. See also Midkiffv. Luckey, 1966 OK 49, ¶J 7-9, 412 P.2d 175, 177 (affirming the trial court’s order vacating default judgment where defendant misplaced or lost the summons and was unaware of judgment until contacted by plaintiffs attorney one month later). In other words, the law does not look kindly upon the taking of default judgments. Nelson v. Nelson, 954 P.2d 1219, 1228 (Okia. 1998). See also Meredith v. Smith, 35 P.3d 1002, 1004 (OkIa. Civ. App. 2001); Branch v. Ameriresource Group, Inc., 29 P.3d 605, 612 (Okia. Civ. App. 2001).

Th 4d court should always exercise its discretion so as to promote the ends of justice. State Life Ins. Co. v. Liddell, 1936 OK 662, 61 P.2d 1075; see also Ferguson Enterprises, Inc. v. H. Webb Enterprises, Inc., 2000 OK 78, ¶ 5, 13 P.3d at 482. In addition, the trial court must consider “whether substantial hardship would result from granting or refusing to grant the motion to vacate.” Id. at ¶ 5, 13 P.3d at 482. Here, substantial hardship would certainly occur on Defendants should the Court not vacate the Default Judgment. Defendants believe that the claims of Plaintiff are defensible, and that they should have their opportunity in Court to defend those claims. Further, substantial hardship would occur since Plaintiffs are seeking punitive damages, and the award of such damages would be several prejudicial to Defendants without the opportunity to defendant Plaintiff’s claims.

In Haskellv. Cutler, 1940 OK 485, 108 P.2d 146, the Oklahoma Supreme Court held: It is the policy of the law to afford every party to an action a fair opportunity to present his side of a cause. Therefore, the approach to a consideration of the vacating of a default judgment must necessarily differ from the vacation of a judgment where the parties have had at least one opportunity to present the case on its merits.

Id., ¶ 8, 108 P.2d at 147. Further, the Court stated that “our judicial system is based upon the fair and just theory that every party to a lawsuit is entitled to his day in court.” Id., ¶ 10, 108 P.2d at 148. “Litigants who, through gross neglect, bad faith, or fraud, fail to timely respond to proper summons, must usually suffer the full consequences of their default, although often gross neglect may be excused on terms when the injustice of the default judgment is excessively great.” Slyman v. State, 1924 OK 572, 228 P. 979, 980. However, the Court went on to state in Slyman that:

Where a defaulting defendant and his attorney have at all times proceeded in good faith and have exercised that degree of care and skill which reasonably prudent persons would ordinarily exercise under all the circumstances, and where ... the judgment debtor promptly and lawfully proceeds to vacate the same, the judgment will be set aside, not as an act of mercy, but as the recognition of a right granted by law and which no court has the right to arbitrarily deny. In determining whether it should vacate a default judgment, the court may, and often should, go further than required under this rule, but less than this it must not do.

Id., 228 P. at 981 (emphasis added).

Defendants have acted in good faith. They believed they were engaged in settlement negotiations until such time as they received the Default Judgment. Further, Defendants promptly moved to vacate the Default Judgment after it was entered. As a result, and according the Oklahoma Supreme Court’s prior rulings, the Default Judgment should be set aside.

CONCLUSION

Based on upon public policy and the precedent set by the Oklahoma Supreme Court, the Court should vacate the default Judgment entered against Defendants. Doing so would allow a meaningful exploration of the issues presented and would allow Defendants the opportunity to present their case and have their day in court. Accordingly, the Court should exercise its equitable powers to vacate the Judgment and allow Defendants to litigate this matter.

Plaintiff's Experts:

Defendant's Experts:

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