Patel v. OMH Medical Center, Inc.

H85 33OK PATEL, Appellee, B. Urvashi CENTER, INC., an

OMH MEDICAL Okla- Hospi- Corporation,

homa Francis Saint

tal, Inc., corporation, an Oklahoma Stevens, individual, Appel-

John B. an

lants. Patel, Appellant, B.

Urvashi Center, Inc., Medical an

OMH Oklahoma

Corporation, Hospital, Saint Francis

Inc., corporation, Larry an Oklahoma D.

Henry, individual, Arrington, Inc.,

Kihle, Dunn, Appellees. Gaberino & 90,489, 89,582.

Nos.

Supreme Court of Oklahoma.

April 27, 1999.

Rehearing Sept. Denied

H87 H89 tion-related misconduct here through a redressed civil action in tort. We question answer first in the affirmative negative. and the second in the THE ANATOMY OF LITIGATION ¶2 (“Patel” Dr. Urvashi B. Patel “plaintiff’), anesthesiologist, entered into a contract in June’1992 with OMH Medical (“OMH”) Center, practice Inc. anesthesiol- ogy and serve as director of anesthesia at facility OMH’s medical Okla- Okmulgee,, provided that, homa. The contract after Pa- area, tel relocated to the Okmulgee either party could terminate the contract for or for reason no reason at all giving twenty days other one hundred and advance written notice paying and to the $50,000. other fee termination Okmulgee Patel moved to the area and worked at for a OMH little more than one year. ¶ In October OMH invoked the Ribner, Tulsa, Oklahoma, N. Clifford for provision termination of the contract with 90,- Patel, Appellee B. Urvashi in Cause No. Patel, only portion but tendered of the 89,582. Appellant 489 and in Cause No. fee, claiming contractual termination an off- Hale, Larry Henry, D. Vivian C. Patrick payment malpractice set for its of Patel’s Cipolla, Mock

W. Gable Gotwals Schwabe place insurance. Conversations took be- Gaberino, Tulsa, Oklahoma, Appel- Kihle for agents tween Patel and one or more OMH lants, Center, Inc., OMH Medical St. Francis concerning money the amount of owed her Inc., Stevens, Hospital, and John B. in Cause and quality under contract of the 90,489 Appellees, No. and for OMH Medical professional recommendations OMH would Center, Inc., Hospital, Inc. in and St. Francis provide employ- to Patel as sought she new 89,582. No. Cause I, ment. Patel these conversations were renegotia- characterized OMH as contract Sturdivant, Hale, M. James Vivian C. tions, portrayed by attempts but Patel Cipolla, Patrick Gable Gotwals Mock her coerce to abandon her termi- contractual Gaberino, Tulsa, Oklahoma, Schwabe Kihle fee. nation Appellees, Larry Henry Arring- for D. Dunn, ton, Kihle, ¶4 Gaberino & in No. Cause purpose, Whatever their the conver- 89,582. nought, sations came to and Patel sued OMH, Inc., Hospital, Saint Francis and John OPALA, J. “defendants”)1 (collectively, B. Stevens dispositive 1 The damages, issues tendered in- breach-of-contract intentional (1) appeals judge distress, these “prima are whether the trial fa- fliction emotional ordering her I abused discretion Patel cie tort” connection with termination vacated, (2) judgment litiga- and whether jury of her contract.2 The trial in a resulted Okmulgee Medical Center—is the facili- both management OMH board of directors and to the OMH— ty Hospi- at which Dr. worked. St. of St. Francis. Patel Francis tal, Inc. assisted OMH with administration provided personnel. managerial John B. Stevens alleged 2. Patel in her claim that OMH contract triggered was administrator at at the properly provi- OMH time had the termination and, therefore, cause action in Patel I He answered of the arose. sion contract continued to sought Pa- not for the on introduce Exhibit OMH alone against verdict defendant contents, purpose for the for all on truth its but claim and defendants tel’s contract ap- rebutting expert witness who testified Both Patel and OMH the tort claims. Appeals, Division Patel Civil Patel’s behalf that would suffered pealed. The Court of May III, opinion unpublished filed harm to her medical career had OMH in an severe deny for certiorari her affirmed.3 Patel’s carried out its threats good expert’s opinion, In the was denied. references. negative had a reference in her doctor who accepting payment Shortly after Exhibit 1 file could not be hired. was of- and after satisfaction of had Patel fered to show OMH hired issued, plaintiff filed mandate in Patel I despite her file negative reference (“Patel proceeding today review first Matson, thereby rebutting from Dr. Patel’s II”), vacate, provi- pursuant to the seeking to expert witness.5 1031(4), portion sions of O.S.1991 rejected defen- Patel objected to the admission into Patel liability Patel al- dants’ on her tort claims. 1. At a conference evidence of Exhibit bench was leges obtained objection,6 attor- held to Patel’s discuss through fraud committed Patel and ney stated that an OMH source had told his judge’s with the trial court connection credentialing file con- client that her OMH into I trial to admit decision Patel from, prepared tained document (“Exhibit evidence a certain defense exhibit by, another doctor who had statements made 1”). According at worked with Patel SMH. Patel, explicitly this document refuted the negative was a evaluation Exhibit Matson, provided by Dr. negative evaluation professional performance provided Patel’s characterizing Dr. Matson’s attitude toward Hospital Memorial OMH Scotland personal animosity.7 Patel as one of Neither (“SMH”), facility medical at which attorney actually Patel nor her seen this had prior joining the staff of worked OMH. M.D., Matson, attorney Patel’s further informed by document. prepared was W. Mark Chair, judge only had a few Department Surgery, colleague that he been told trial, days negative that Matson’s Patel the Patel I OMH before trial Dr. at SMH4 At $17,500. salary average monthly Defen- 4. Dr. rated Patel's skills as or owe her a Matson properly argued stating average, privileges that the contract had been dants below that her had at $12,- terminated, they paid revoked, that Patel all but had recommending time that one been fee, the termination and that their 464.18 of dispute being granted privi- she be monitored before full properly was limited to the latter leges. agreed The trial with defendants amount. court summary by adjudication, limited Patel’s response July dated 5. Dr. Matson’s was $12,464.18. Patel's tort contract claim to exe- The contract between OMH and Patel was dis- claims—intentional infliction emotional to cuted on June two three weeks "prima tress and facie tort” —were based before OMH received Exhibit from Scotland allegation attempted to her that the defendants point Hospital. Patel makes the that it Memorial abandoning the termination fee coerce her into played any part in could not therefore have contractually by she was entitled threat- which original OMH's decision whether hire her. ening provide poor with recom- her neutral hospital application her was received before persisted trying in to obtain mendations if she privileges by peer com- that even neutral recom- was considered review fee. would mendations be ruinous to her medical mittee and was included in materials expression "prima The facie tort" does career. not committee reviewed. appear recognized ever to been in Okla- have concept prima homa. For view that 6. The bench conference is transcribed in the trial jurispru- applied facie been in tort has Oklahoma pages at record 610-617. circumstances, Merrick dence under limited see Co., (10th Natural 911 F.2d 426 Northern Gas refuting 7. The document turned out to be Cir.1990). by employee, pre- memo drafted an OMH who Inc., Center, telephone pared 3.Urvashi B. Patel v. OMH Medical it to memorialize her conversa- Stevens, Inc., Hospital, St. and John B. an Francis tion doctor from Scotland with the Memorial individual, 85,661, Supreme Cause No. Court Hospital provided refuting who information. Ap- unpublished opinion of the Court of Civil III, peals, May Division

H91 false, they upon by would offered into evidence and file were that were evaluation be relied responded had to that admitting that he information the court in Exhibit and that the insisting entire file in which was that the it admission of Exhibit 1 tainted the verdict kept produced. negative both prejudiced because its contents jury against falsely Patel and because it transcript The bench confer- ease, in rebutted central contention Patel’s clearly court ence shows that the was reluc- negative i.e. that a severely reference would tant to admit Exhibit into The evidence. harm her medical career. offering OMH it not been re- witness had sponsible for the file at the time it was vacate, 12 In response created, brought and defendants had not dismiss, defendants filed a motion to file in original entirety. the trial its denied. was Patel filed a motion for sum- attorney court asked defendants’ several mary judgment. arguments Oral on the mo- ways times in various whether there was summary judgment tion for were heard anything in file of the nature described March 1997. At the conclusion of the hear- attorney. Patel’s The answer was re- ing, the trial court that stated she was not peatedly that was not and Exhibit there time, prepared to rule motion at that complete in itself. one was a document At parties’ but would review the submissions point, pin the court tried to down an answer make a decision at a later date. stating, ¶ 13 On 14 November 1997 the trial court point “... The is not that this document is ruling issued a entitled “Order on Plaintiffs incomplete but that there some- Petition Vacate Part.” Neither thing the file that references this docu- body title nor of the instrument did explains ment that it or further modifies specifically the court state the order whether respect.... some He entitled responsive to was Patel’s motion for sum- produced ...” mary judgment, but it did state that attorney responded, Defendants’ par- court had “reviewed and considered the nothing “There is in the file of that ties’ submissions Plaintiffs Petition to contradictory nature. There are refer- Part, Judgment including Vacate then- city.” ences briefs, affidavits, exhibits, arguments, oral judge 9 The then stated that she authority.” quoted case ex- file, thought she needed look at the but tensively from the record of bench con- being after informed file was concluded, ference and then Okmulgee, she decided to admit Exhibit Henry specific “Mr. made representa- a permit into evidence and Patel to offer testi- nothing to the tion Court that there was mony attorney respond- rebuttal. Patel’s the file of the nature about which the by saying, ed to the court’s decision clearly repre- Court was concerned. This “Okay. That is fine.” fact, false, was, in being sentation there ¶ 10 1 was Exhibit admitted into evi- typed file the a memorandum Karen testimony dence. Patel’s rebuttal contra- kept risk Legg, manager, OMH’s who the posed her unsubstantiated belief about the files, credentialing regarding a call from of her file to credentialing contents defen- Memorial, Dr. Parkes at a memo- Scotland documentary argues dants’ evidence. Patel very point falling randum on this that the admission of Exhibit without sought by squarely category within refuting jury document left the with the false specifically to Court. Dr. Parkes called impression negative that a reference would negative refute Dr. Matson’s reference and impediment not be an to a future doctor’s explain to the circumstances under which asserts, employment. Exhibit she would profes- Matson Dr. criticized the Plaintiffs probative have had little or no value at all on conduct, negative a sional evaluation which refuting if that issue the existence of the ‘strictly person- Dr. Parkes was of a stated document had known. been profes- nature’ a ‘lack al and constituted ¶ vacate, part.’ ... sionalism on Dr. Matson’s Mr. petition her al- Patel Henry attorney] leged representations that defendants’ made the [defendants’ regarding representation knowing the contents of Patel’s OMH that the was Court Defendants moved dismiss relying representation a true on it as grounds petition known III file which was to Mr Patel state of the a can Henry to Mr. attor- to state claim which relief [Patel’s Ribner failed but ruling ney] agreed, The trial court granted. or the Court. current Oklahoma that no basis exists under Henry responded had that there If Mr. ap- nature, authority for Patel’s Patel’s case claims. something in file of was peal from the dismissal order is the second required it to be the Court would too, It, today. was case we review Defen- produced would have excluded disposition. for this court’s retained that its ad- 1 on the basis dant’s Exhibit material, mission, file absent additional point jury on the exact

would mislead II it, Henry Mr. offered on which OF REVIEW STANDARD negative reference the file presence of a doctor’s future impediment no to a was A. employment. Henry’s misrepresentation to the Mr. A OF CORRECT CHARACTERIZATION opposing counsel constitutes Court and THE TRIAL COURT PROCEEDINGS 1031(4)

grounds under Section O.S. THE SE- MUST PRECEDE COURT’S judgment on Plaintiffs tort vacate the THE STANDARD OF LECTION OF jury claims entered on verdict.” REVIEW. petition having to vacate been presents proce This case petition in granted, filed their defendants imbroglio assignment makes the dural error, under review appeal which is first appropriate somewhat standard review appeal today. This court ordered re- presented to the difficult. Two motions were tained. One motion to court. was defendants’ February petition dismiss. The other was Patel’s motion 15 In 1997 while judgment. pending, summary filed A motion to dismiss to vacate was Patel a third (“Patel III”)8 corporate interposed against to vac against action II, purpose in Patel defen- ate.9 The of dismissal motion is defendants cases, claim, attorney for a not the dants’ Mr. Lar- test the law’s lead those firm, sufficiency underlying of the ry Henry, Arrington, D. and his law facts.10Where Kihle, III, Dunn, facts & Inc. In Patel motion to dismiss tenders to be consid Gaberino punitive offering plead compensatory dam- ered materials dehors the Patel seeks fraud, deceit, ings, upon the ages in for acts it is incumbent trial court tort spoliation allegedly occurring summary judgm motion one for of evidence treat ten- during Patel I trial. ent.11 Defendants’ motion dismiss Inc., assigned 11.Dyke Hospital, Judge David 8. Patel was L. Peter- v. Saint Francis III Wiseman, son, Judge 114, ¶ 17, 295, 298-299; than Jane P. who rather Norman presided Patel I and II. over Trison, 6, OK 832 8. also 1992 P.2d See Slusher, 53, 878, 8,n. 770 P.2d Silver v. 1988 OK Couch, 632, 51, 9. Lewis 194 154 P.2d 52 v. Okla. 881, 8, U.S. sub v. n. cert. denied nom. Silver Derr, 132, 136, (1944); 42 v. P.2d Stout 171 Okla. Co., 817, & Ins. 110 Farmers Merchants 493 U.S. (1935). cases, These decided before the 138 70, (1989). pertinent S.Ct. 107 37 L.Ed.2d Code, Pleading adoption 12 of Oklahoma 2012(B) portion § 12of O.S.1991 states: seq., interposi- approved §§ O.S.1991 2001 et petition to A tion of a demurrer to a vacate. If, asserting a "... on motion the defense petition § demurrer a 12 O.S.1981 267 to under 6 of for numbered this subsection to dismiss many grounds contained of the for chal- same pleading to failure of state a claim lenging sufficiency pleadings as now are of granted, relief outside which can be matters provided by the to dismiss in 12 for motion pleading presented are to and not excluded 2012(B). By analogy, § a O.S.1991 motion to court, by shall be treated as one the motion may interposed against petition dismiss now be a summary judgment parties and all shall be might for vacate a to to the same extent as demurrer regime. given opportunity present ma- have been under earlier all reasonable pertinent made to such a motion terial Gammill, 149, 6,¶ 844 10. Zaharias v. 1992 OK summary judgment....” rules for 137, P.2d 138.

H93 postjudgment remedy. represents consideration this case an ex- It dered for neither cerpted transcript portion testimony statutory of the of a law or common claim nor does it in the Patel trial. This material’s inclusion judgment result in a rights which settles the required the trial court to treat parties. defendants’ between the Because a vacation motion as a motion statute-governed is a summary dismissal for proceeding procedure short, the end result this judgment. issues, postjudgment determine summary of procedural exchange the trial adjudication process cannot be utilized to confronted summary judg- court with cross motions decide the matters contest.15 is not to This for ment. say that adversary hearing an be must af every quest. forded in Although vacation Summary process gov 18 is textually is procedural Rule 13 con regime erned District Court Rule 13.12 sets issues, prejudgment legal no there is fined procedures forth in detail the to be followed § impediment post- a use —in 1031 dispute where there are no fact issues in judgment vacation proceeding accept —of judgment may appropriate he as a matter of evidentiary able substitutes16 to eliminate terms, By very applies law. its Rule IS any individually adversary from contest only.13 prejudgment pro issues A vacation clearly issue is claimed as defined fact § ceeding legis 12 a O.S.1991 1031 is supported solely undisputed and shown to be latively created remedial mechanism in hy consistent with the movant’s inferences litigant which a not a judgment, seeks hut position in the case.17 ajudgment.14 rather There are no relief from prejudgment proceed issues a vacation then, do, Removing 19 as we Rule 13 ing. a contrary, quest On procedural vacation a arsenal available in a 2, (1944); App., 12. 12 O.S.1991 Ch. Rule 13. 51 Turner v. Nat’l Bank First & Trust Co. 403, City, 186 Oklahoma Okla. 97 P.2d 894 Metropolitan Ministry, 13. Pickens v. Tulsa Cf. (1940); Derr, 132, v. Stout P.2d 134, Okla. 152, 7,¶ 1079, 1997 OK 951 P.2d 1082. Swanson, (1935); v. Burton 142 Okla. (1930); Daniels, P. 839 201, v. Dardenne 101 Okla. County 14. Parker v. Board Commissioners general- 225 P. These cases are 308, County, Okmulgee (1940). 187 Okla. 102 P.2d 880 ly procedural initially concerned with the tools also, Fleming, See Assmann v. 159 F.2d response a available to defendant in to the ser- (8th Cir.1947). setting The statute forth They vice of a to vacate. relate to the power modify the courts' to vacate or their own pleadings form of the initial and not to the sub- judgments § is found at 12 O.S.1991 proceeding stantive a nature whole. grounds power first two relate to the courts' Their use of term "civil action” in reference grant under other statutes new trial and are proceeding a vacation does not governed by of those other stat- sweeping proceeding conclusion ground utes. The third or modification vaca- respects pur- mistake, is a action in civil all and for all tion of a neglect or order is cases, poses. irregularity To the extent that these of them or omission of the clerk or all antedating summary process, express obtaining a or the birth order. Relief on this view, may ground requested they disapproved. be are the form of a mo- Proceedings § tion. 12 O.S.1991 to va- " modify judgment cate or or order on the fourth ‘Accceptable probative are substitutes’ those grounds through ninth be 1031 must initi- 'evidentiary be used as materials’ in by petition setting ated and verified affidavit summary process adjudication.” Sham specified out certain information. 12 O.S.1991 Beasley, blin v. 1998 OK 967 P.2d jurisdiction 1033. Personal must obtained (quoting n. 22 from Jackson v. Oklahoma by the of a issuance service summons “as in Hosp., Memorial 1995 OK commencement of action." Id. Petitions Holman, Gray n. 35 and grounds through vacate numbered four also, 16). Seitsinger P.2d 781 n. See years nine must initiated within two of the Inc., Dockum OK Pontiac sought date of the order be vacat- 1077, 1080-81; Leitner, Davis v. or, fraud, years ed case of within two of 924, 782 P.2d 926-27. discovery of fraud. 12 O.S.1991 1038. 17. be summary Probative material to used for process post- 15. The use in a position "individually judgment one's procedure a certain remedial such as clearly today contemplated review defined issue” to be taken undenied would not even be is as by by party's were it not to for some earlier decisions this could be tendered motion elimi- (or issues) suggesting quest court that a vacation is a nate the consid- civil identified issue 632, Couch, adversary hearing. v. action. Lewis 194 Okla. 154 P.2d eration in an 1194 Pa- Ill proceeding, we must treat both

vacation judgment summary and de- motion for tel’s DIS- THE TRIAL COURT ABUSED ITS for sum- fendants’ motion dismiss/motion IN GRANTING THE ORDER CRETION mere cross motions mary judgment as I THE PATEL JUDGMENT VACATING The trial hearing. court’s enter matter for ¶ urge grounds four for 21 Defendants petition to vacate must granting Patel’s order vacating court’s order reversal of the trial directly to responding hence viewed (1) pro- judgment: the Patel I vacation quest appropriate vacation.18The Patel’s for ceeding barred settled-law-of-the-case is assigned is to on standard of review (2) doctrine, intnnsic allegations Patel’s basis. judgment, are not sufficient to vacate a (3) has to show that defendants’ failed any, if were made with misrepresentations,

B. necessary securing the vaca- for scienter (4) evidentiary judgment, tion an OF AN OR- FOR REVIEW STANDARD of a hearing required prior is afforded to A for fraud and none was DENYING DER OR GRANTING prius that the nisi or- defendants. We hold TO ON THE PETITION VACATE must be vacating der the Patel OF FRAUD GROUNDS remanded, we though reversed and cause ¶ do than raised so for reasons other those 20 The standard review arguments. re- first three We defendants’ prius granting denying or a nisi order prius both order this case verse nisi the trial petition to vacate is whether court agree fourth we with defendants’ because judicial An abused abused discretion.19 its evidentiary ground for reversal —that manifested when discretion is discretion is defendants’ due —as hearing was indeed the justified purpose to an end or exercised explore need to below well as because of the clearly against, reason and evid by, and newly in Part prudential unveiled issues employed on untena ence.20 is discretion III D. reasons, grounds for untenable or a ble manifestly discretionary act which is unreas A. next turn to consider whether onable.21 We NOT A PETITION TO VACATE IS in grant

the trial court abused her discretion BARRED BY SETTLED-LAW- petition ing the to vacate in this case. OF-THE-CASE DOCTRINE argue 22 Defendants first petition settled- Patel’s vacate barred view, In all

law-of-the-case doctrine.22 their Trent, arguments 19. Credit Bank Wichita v. 18.The record reflects that oral Farm 591; 21, 588, summary 70, motion for were heard on v. Texa OK 943 P.2d Hassell hearing, 233, 235; co, Inc., March At the of the 1997. conclusion P.2d prepared was not court stated that she Lambert, 206 Okla. Lambert time, to rule on the motion at that but would (1952); County v. Board Comm'rs Parker parties’ and make a deci- review the submissions Okmulgee County, 187 Okla. 102 P.2d at a date. On November sion later (1940). ruling entitled trial court issued "Order Part.” Plaintiff's Petition Vacate in Neither Stackman, re body title does nor in the of the instrument 311; Shull, ex State rel. Okla. specifically ruling she is state that (1930). P. 891 summary judgment, Patel’s motion for but she has does state that she “reviewed considered Cook, parties’ See, e.g. Campbell submissions on Plaintiff’s Petition State ex rel. briefs, Part, Judgment including their Vacate Wash.App. 938 P.2d 345 affidavits, exhibits, arguments, and au- oral case thority.” grants petition Order Patel's then the defendants’ contention The correctness of to vacate. It is unclear whether the court intend- quest was barred the settled- that the vacation responsive ed her order to be motion for only argument doctrine is the law-of-the-case summary judgment or whether was issued undergo review. that must de novo directly response to vacate.

H95 § relating to and the issues Exhibit contents 1031. Defendants maintain the trial credentialing granting file were in court erred in quest of Patel’s settled Patel’s vacation case, appeal of because-her to vacate barring alleges the Patel acts of only. fraud disagree. in intrinsic We raising from thereafter of a Defen- context are dants incorrect in their contention that a proceeding any relating issue Ex- vacation § 10S1 quest upon vacation must rest oper- extrin- hibit 1. Settled-law-of-the-case doctrine sic contrary, To the relief from a in relitigation ates to bar of issues a case that fraud. in judgment statutory a proceeding brought appellate finally by opinion are settled an or pursuant may §to predicated upon aggrieved party those failed to raise on intrinsic as Only well as extrinsic appeal.23Settled-law-of-the-case doctrine is a fraud. sought independent in where vacation is an judicial economy designed prevent rule of pressed lapse action statutory of the appellate having an court from twice deal after period § a bringing 1031 proceeding is with the same issue. The issue a vacation petitioner by circumscribed the extrinsic- 1031(4) proceeding under 12 O.S.1991 is requirement. fraud nothing fraud. There is the course of process antecedent decisional case 24 The this distinction between intrinsic and extrinsic fraud in proceedings aside a has settled the issue fraud. Accord- set judgment usually for fraud is back ingly, traced not settled-law-of-the-case doctrine is a Throckmorton,24 case United States plaintiffs quest. bar to a nineteenth-century by decision the United B. case, Supreme States Court. In that an independent equity, action in re- Court INTRINSIC FRAUD WILL SUPPORT judgment fused to set aside a obtained more THE OF A VACATION JUDGMENT twenty years than allegedly per- earlier on WHERE RELIEF FROM THE JUDG- jured testimony and falsified evidence.25 In MENT IS IN THE SOUGHT MAN- provided Throckmorton the Court an exten- NER AND THE WITHIN TIME analysis sive of the English then-extant BY SPECIFIED STATUTE subject American on authorities of set- ¶ 23 next argue Defendants this ting judgments aside for fraud and arrived at jurisprudence requires court’s extant that re description what has become the classic judgment lief a provisions from under the types the two of fraud.26 When the Federal 1031(4) predicated upon fraud which is Rules Civil were Procedure amended or which “extrinsic” amounts to “fraud the Throckmorton limitation was ex- fraud,” assert, they court.” “Intrinsic will plicitly rejected proceed- in federal vacation the vacation of a where ings provided initiated within the time limit sought relief is seeking by rule for relief motion.27Its side,— these, Corp. 23. Morrow Dev. v. American Bank & Trust interest to the other and similar Co., 411, 413, 2; OK n. 875 P.2d n. cases which show there has never been a City case, Lehigh, Mobbs v. hearing n. real contest the trial or 5; may n. Panama v. Cities Processes are reasons for which new suit be sus- Co., Service n. judg- tained set aside annul the former de.cree, 27. n. or open ment new case for a (citations omitted) hearing, fair and a ... On the Throckmorton, 24. States v. United U.S. hand, equally other doctrine well settled L.Ed. 93 the court will not set aside a because was ment, on a founded fraudulent instru- Id. at evidence, perjured or or for matter actually presented which was and considered in Throckmorton, ("Where at 65-66. the unsuc- assailed....”). party prevented exhibiting cessful has been from case, fully deception practiced his fraud or 60(b)(3) provides: 27.FRCP Rule opponent, by keeping away him his him court, promise compromise; Judgment false of a or "Rule 60. Relief Order From or (b) knowledge where had the defendant never of the ... On motion and terms as such suit, being kept ignorance by just, of the party acts are relieve or a plaintiff; attorney fraudulently party’s legal representative or where judg- or from a final ment, order, authority represent without proceeding following assumes or for the defeat; (3) (whether attorney at his connives where the ... reasons: heretofore de- employed extrinsic), regularly corruptly sells out his client's nominated intrinsic or ...” 1196 application must be made to un- from which proceedings initiated

viability independent jurisdiction ac- the issues having court federal rules der the controversy in feder- joined remains an tion and tried.”31 .area procedure.28 al civil ¶ fairly the definitions are 26 While application straightforward, their simple ¶ and adopted the court has 25 This hazy, leaving the often been somewhat of has Throckmorton definitions essence of the proceed have de that vacation impression intrinsic fraud. We and erroneous extrinsic “(a) any § fraudulent brought fined extrinsic 1031 are restricted ings fraud (b) perpetrated party, of a successful conduct fraud. Defendants cite a number extrinsic pro outside, adversary trial or actual of an in contention that of their cases (c) directly and affirma practiced cess and support relief from a fraud will not trinsic (d) whereby party, he tively the defeated 1031(4). § judgment under presenting fully and prevented was Chapman,32 a former wife Chapman In v. Examples the case.”29 fairly his side of years a divorce sought, nearly fifteen after representations fraud include false extrinsic proper vacation of granted, been had party merely a nominal is that the defeated a divorce decree ty provisions of settlement sought, relief is false whom no party against trial court ground of fraud. The suit, compromise, concealment of promises of petition and this a demurrer to her sustained witnesses, cond Mdnapping of and similar affirmed, holding that the husband’s defined “intrinsic as: uct.30 We have fraud” spousal did not assets concealment conduct of the success “... fraudulent mis rise above intrinsic fraud. Defendants during practiced party ful which was interpret application case as an takenly this (cid:127) adversary actual trial of the of an course pro § rule to a 10S1 the extrinsic no joined and which had effect di issues we did in fact ceeding. It ivas not. While affirmatively the de rectly to mislead and rule, only we did so apply the extrinsic fraud injury an to his after he party feated petitioner had failed to file her because the ready proceed with he was nounced that provided limit for a petition within the time during the successful If the trial the trial. proceeding. Chapman § was an inde 1031 instruments, per urges forged proceed pendent equity, not a 1031 suit jured testimony or fails to introduce wit expired years two ing, the time for which had knowledge he has nesses of whom had been rendered. after the divorce decree adversary testimony help would his whose Chapman, independent “An suit case, We noted impair guilty own he is his fraud, fraud; ... ivill not lie equity it is intrinsic for relief but for relief from Marshall, Moore, Lucas, Mr. Justice introduced at trial. J. MOORE'S FEDERAL 28.7 J. 60-206; See, equity provide e.g. will relief from Harlan stated that 60.24[1] V at Aver PRACTICE Co., any judgment through Manufacturing obtained fraud where con- F.2d 1016 v. Rival bach denied, 915, Cir.1987), complaining party (3rd requires science relief and the 482 U.S. cert. 596, denied, 3187, (1987); This at fault. Id. at 12 S.Ct. 62. is not L.Ed.2d cert. S.Ct. holding Averbach, directly appears Throckmorton, contradict Manufacturing Co. v. 484 U.S. Rival 83, (" yet as the 822, (1987) Throckmorton was cited ‘[The S.Ct. 98 L.Ed.2d 45 unfortunate, authority never for the dictum. The Court has if true. rests distinction] [It] is most apparent authorities, conflict. resolved the cloudy sound and confused its doubtful, policy very a matter of is and it ness as 54, 15, Jernigan, 1995 OK 901 P.2d 29. FDIC extremely ought apply. not to difficult to 89, 793, 798; Chapman, Chapman v. 1984 OK persist independent actions now as a limit on 1372-1373; ¶ 9, 1369, Sadberry Hope, 692 P.2d on motions.' 11 C. has been abolished 175, 444 P.2d Miller, Wright & A. Practice and Proce Federal 2868, (1973) (footnotes omit dure at 240-241 13, Sadberry, supra ted)"). Indeed, note 29 at at 177. questioned some have whether actually authoritative remained Throckmorton even as it 74, Miller, 24, n. 956 P.2d 31. Miller v. being cited state and federal was supra Chapman, note 29 at n. centuiy. ambiguity courts lies in the Wolcott, quoting n. from Calkin v. both the case of dictum of Mr. Justice Harlan in (1937); Holmes, FDIC v. Okla. Marshall v. U.S. 12 S.Ct. supra (1891), Jernigan, 29 at at 798. years note after L.Ed. 870 decided thirteen Throckmorton, in Throckmorton. Marshall Like Chapman, supra forged testimony note 29. perjured volved documents only part intrinsic but extrinsic unconscionable conduct on the of a from fraud by que trustee toward the cestui the must be trust. fraud. Relief from former in the in direct attack same case which ¶29 fraud Jones,37 In Pippin v. a divorce de- added).33 (emphasis ...” was committed Pippin cree had Mr. to determined be the of marriage. a child of the In father Sometime Defendants also cite re Forfeiture 1974, later, Pippin brought § Mr proceed- a Mercury a in which the Cougar,34 claiming ing, the,finding paternity court the fraud in a fraud recited extrinsic rule divorce provisions proceeding § the action. This brought case under the re- agreed in an order that he was not but then decided the case on a different sulted the later, father. brought Ponca child’s Still the City police basis. The had seized a ex-wife Mercury paternity against a man. Cougar by petitioners, action another owned paternity trial court that found charging being that the car used unlaw action that was fully transport marijuana. agreed establishing order Pippin’s to was Mr. The car subject non-paternity purchase money security comply was void for to to a interest failure court, § 1031. appeal, appellate held No with On Bank. notice forfeiture was rule, reciting given required by to and after the extrinsic fraud af- Bank as statute order, represented holding Bank at firmed the trial court’s was not the forfeiture issued, Pippin § hearing. Mr. had never in his A forfeiture was fol order proceeding practiced fraud had lowing which Bank its lien. Peti been released on him sought regarding paternity tioners to his and vacate the forfeiture order had 1031(4) properly § § therefore never invoked on 1031.38 Hence, grounds the Pippin nothing decision had to of constructive fraud for failure of do provide with the between requisite statutory State distinction intrinsic and to extrinsic fraud. notice to Bank. The trial court sustained appeal, State’s demurrer. re On this court ¶30 appellate Two other decisions cited rule, readily cited extrinsic but it fraud appeal’ sup defendants at first blush apparent it was not basis of the port only their contention that extrinsic fraud opinion court’s decision. The states that the will judgment, the vacation of a but irrelevant; simply existence of lien was it qualification each these contains a that in would not have been a defense to the forfei essence the rule purports consumes it clearly opinion ture action. The rests on Anderson,39 Copeland v. invoke. an ex- court’s view that no ivas involved.35 fraud brought proceeding modify a prop wife Any reference in that ease the extrinsic erty settlement divorce action on the purely gratuitous. fraud rule was ground Holding of fraud. ex-hus correctly grant band’s motion was cases are to dismiss Other cited defendants Marlin,36 ed, Appeals Court distinguishable. Byrd also of Civil stated that a proceeding action to set aside a and cancel conveyances, certain brought was not range “is restricted to a narrow of malfea- judg- same case same in which and court sance extrinsic and collateral issues sought ment to be vacated was rendered. Allegations tried- that a independent proceeding was an brought by plain- was obtained on evidence known grounds 1031(4), by § authorized but not permit tiff to be false are sufficient technically proceeding. The court disturbance of the when such rule, ap- discussed the prevented fully extrinsic but was not from and pears to have decided fairly presenting the case the basis his side of the case.”40 33. Id. n. 6. at 38. at at Id. 611. 34. 1978 OK P.2d 465. 39. 1985 OK CIV APP overruled grounds, Cooper Parker-Hughey, on other 35. Id. at at 467. 894 P.2d 1096.

36. 208 Okla. 258 P.2d 649 ¶ 39, at Id. at 570. CIV APP guardian had failed to at some noted that the appellate then discussed court had petitioner Cope- plaintiffs how the or their counsel that the show length fact fair- suspicious presenting folly of her hus- her prevented had land reason action Both ly Copeland the divorce side of case. band’s even before her actions have, apparently Sadherry, appear reject could intrinsic was filed and that she have, “garnered ground vacating judgment, the evidence and should fraud as a presented in court.”41 actually advance turn on that distinction less petitioner’s suspi- the focus on question the whether the com- more on of court’si trial, viewed prior original when cions party adversary proceed- had a plaining fair quoted of statement above light in the court’s regardless category the ing, the into which of not support will distur- that false evidence allegations happened to offraud fall. was of a when such judgment bance 1031(4) ¶ § make no prevented fully fairly present- not from between intrinsic and extrinsic distinction case, suggests that the ing his side Copeland, To the that Sadher- fraud. extent question real for the court was not whether any have ry, or decisions of this court other intrinsic, but the fraud extrinsic or was dichotomy to applied the intrinsic/extrinsic judgment had secured un- whether been 1031(4) § proceedings under vacation requiring circumstances relief. der judg- brought in the court in same Hope42 Sadberry A similar ease is rendered, sought vacated ment to be was appears relying to Again the court be expressions disapproved with- their are rule, Cope in rigid extrinsic-intrinsic but as More decisions have made drawn. recent escape posits the means of from land polarity is clear that the intrinsic/extrinsic on that the inflexible constraint its discretion applicable proceedings vacation not to imposes. application rule In of that Sadher- brought pursuant petition § 1031.44 to Patel’s plaintiff sought prohibition a ry, the writ of to is not because acts insufficient judge conducting a to restrain the trial from categorized fraudulent be as intrinsic be petition a hearing guardian’s on a to vacate fraud.45 judgment her. imposing surcharge a on prohibition holding that be the writ should C. general recited rule granted, PROOF OF ACTUAL FRAUD IS NOT support fraud sufficient to the vacation NECESSARY TO OBTAIN 1031 collater of a must be extrinsic and A RELIEF FROM JUDGMENT prevent al to the tried and issues must next that in or- 33 Defendants contend complaining party fairly exhibiting from his succeed, quest for a all of the der explain went case court.43The court on established, must elements actual fraud be guardian that the matters about which the including They argue an deceive. intent to claimed all known to her at fraud were prove Patel defen- presented has failed time of and were at the trial misrepresentations, if presented guard any, dants’ made or could have been had the were Further, Moreover, requisite present ian chosen to them. with scienter. ¶ 42, upon practiced obtaining 41. Id. at at 570. cated extrinsic fraud judgment). P.2d 175. argues con- 45.Patel that defendants’ fraud also ¶ 12, 43. Id. at at 177. de- “fraud the court." We need not stitutes alleged is cide whether the fraud or is not fraud Jernigan, 44. FDIC v. 1995 OK P.2d 793 on the court because we held that her (holding allegation petition was is based intrinsic fraud. that because the of fraud sufficient nature, unnecessary quest was likewise whether of an the vacation It is determine intrinsic attorney’s brought misrepresentations a time-barred it had after the an to the court in in that been conference, lapse years from the date the order bench which are not in themselves two chief, vacated); sought Chapman Chapman, testimony are intrinsic or the case merely (holding proceeding. We hold that P.2d 1369 that a extrinsic to the allegations petition years two in Patel's state intrinsic vacation claim instituted more than if fraud, independent equity they judgment by the relief after suit in are sufficient — original predi- requested. than rather case—must

H99 petition D. granting order Patel’s to vacate any finding failed make that defendants IT AN OF IS ABUSE DISCRETION TO to deceive either trial court or intended QUEST A GRANT VACATION ON reject proof Patel. We contention THE GROUNDS OF FRAUD WITH- required order actual fraud is to obtain relief a OUT FIRST EVALUATING THE PE- EQUITABLE TITION IN LIGHT OF Fraud, generic term with LIMITATIONS ON OBTAINING THE multiple meanings46 divided into actual REQUESTED RELIEF fraud.47 fraud and constructive Actual misrepresentation is the or con intentional relief seeks from a cealment of material fact which substantial basis of fraud allegedly acts of occur- ly person.48 another affects Constructive ring during the course of a trial at which she fraud, legal equitable breach either present participated. was Her duty, necessarily involve moral does pleadings vacate other the vacation deceive, guilt, dishonesty intent to or actual quest that time of show at the the Patel purpose.49 may any of be defined as breach trial, Patel had what she be believed to reli- which, duty regardless of a of the actor’s able information representa- that defendants’ intent, gains advantage for the actor credentialing tions to the court about her file misleading prejudice.50 another to his Con misleading. objected were false and fraud, has very structive the same the 1 admission of Exhibit and informed the fraud, legal consequence may as actual of court her belief that the file contained prevent protec harm or to invoked to extend another document which would contradict the recognized public tion to interests.51 being document into offered evidence de- ¶ In35 some older decisions of this Although fendants. Patel never withdrew court, only it was held fraud that actual objection, delay the she did not ask for a or support judgment.52 would the vacation of a continuance in the trial review the file for view, stated, light just our that con contained, the of document she believed nor very legal structive has the same con objection fraud did she stand on her when the sequences fraud, as actual such a restriction compromise permitting at court arrived its longer exposi can no be considered a correct fact, testify Patel to about Exhibit 1. In the Hence, statutory tion our law. construc of record the court reflects would will tive fraud vacation of a justified response in interpreting been her as proceeding, in a 1031 and compromise. acquiescence granted trial court’s order here not under review is quest 37 A vacation must be eval finding infirm its failure to of fact make required light principle proof finality as to the element of uated in of the of the intent for principle, conceptually actual fraud. That judgments.53 (where Faulkenberry City Railway duty speak, 46. v. Kansas Southern 197 one has a but remains Co., ¶ 4, silent, fraud). may guilty OK 142 P.2d he 1979 602 U.S. constructive denied, 850, 159, 104 cert. 464 U.S. S.Ct. 78 (1983); LePak, Singleton Inc., L.Ed.2d 146 37, 13, v. Chaprell Jeep-Eagle Dodge, 1967 50. France v. See 974, 159, 978. 1998 OK CIVAPP 968 P.2d 844. 206, 6, Faulkenberry, supra 4,¶ 47. 46 Faulkenberry, supra note at n. at n. note 46 at 206. 51. at Steele, 6; 1266, F.Supp. v. Steele (D.C.W.Va.1969). Okmulgee Tax 52. Fed. Co. v. Board Comm'rs 223, (1940); County, 187 Okla. P.2d 148 4, Huston, Faulkenberry, supra Abernathy note 46 at at 206. v. P.2d 166 Okla. (1933) (ordinarily fraud vacate a essential to fraud, at at 206. on direct attack must be actual Id. Constructive fraud does deceive, permitted); require use of liability an intent but the constructive Trent, (1912). may negligent 36 Okla. 128 P. 895 constructive fraud be based on or Brown Fibres, misrepresentation. even innocent U.S. Schwartz, Inc., F.Supp. Aktiengesellschaft, & 56 F.3d Inc. v. Proctor Robinson Audi (6th (10th Cir.1995), denied, Cir.1975). aff'd, Phil 509 F.2d cert. U.S. Ball, ¶ 13, lips v. 116 S.Ct. 133 L.Ed.2d 661 judicial inqui- record of preclusion doc- absence from the encompassed in the various ry prudential requires into trines, these factors proceeding with collides in a vacation be re- postjudgment order adversary proceeding principle that a fair further versed and the cause remanded for parties in a law- must be vouchsafed proceedings. ability judg- An to attack a suit. unlimited valid on face would burden ment its ¶ 39 One of dissenters system potential for endless judicial with the would the trial court’s order reverse jeopardize the repetitious litigation and relief It is direct that vacation be denied. seeming- reliance on public’s parties’ unclear whether dissenter considers hand, adjudications. On the ly final other vacation) (for petition facially insufficient not had a where has reasonable whether he deems defendant entitled claim or opportunity litigate defense victory by summary relief. If it be the lat having jurisdiction, unwaver- before a ter, today’s regime withdrawal of Rule 13 finality ing adherence to the doctrine procedural parties from arsenal the and in judgments would result unfairness invoke sum proceeding in a vacation makes lowering judicial system in of the mary disposition in this case.54 unavailable litigants of the well as of esteem affected hand, If, view is on the other dissenter’s prohibition public. a blanket Neither insufficiency petition’s facial re against judgments relief nor the man- dismissal, quires he is in error. The its every peti- of each and dated consideration allegations of the are sufficient necessary. tion to vacate is desirable or prima facie case of fraud. this state Until upheld principles be and are best Both must pronouncement, necessary to no more was protected placing prudent reasonable and petition’s To avoid dismissal.55 procedural requirements litigant opinion on a day’s who to unveils additional fact issues § may attack. relief launches 1031 be addressed before vacation be granted. op Plaintiff must be an afforded accordingly 38 that We hold portunity present that would to evidence § to proceeding in a 1031 vacate an required newly show the existence of those fraud, judgment grounds of the earlier on the remand, Today’s facts. which assures (1) (or she) he petitioner show that must: plaintiff opportunity, of that a con is indeed (or her) asserting delay acted without his imperative.56 stitutional fraud, (2) rights discovering after estab (or she) diligence in lish that he used E. trying action original to discover and ex ALL PARTIES MUST BE AFFORDED fraud, (3) pose provide clear and convinc AN PRESENT OPPORTUNITY TO (4) fraud, ing evidence of demon EVIDENCE ON DISPUTED FACT likelihood strate there is substantial A ISSUES BEFORE JUDGMENT that a new trial will have a different result. MAY BE VACATED IN A PROCEED- we prudential requirements impose to THE ING BROUGHT PURSUANT TO § day on one who initiates a will attack § PROVISIONS OF 1031. complaining party ensure that the has not in create, invited, ¶40 way helped some or complain Defendants that er a new granting prius need for trial and that a new ror order was committed nisi they vacating not Patel I trial will be a useless exercise. The because rights appear The dissent to take with to be before of their substantial does not issue heard may court’s of Rule 13’s limit. treatment outer be altered or affected. Matter Estate of ¶3, 642-643; Pope, 1990 OK P.2d prima facie 55. A that states a case is not Fabrication, Snyder Welding & 1986 OK Smith dismissal, subject appears beyond unless 168, 170; ¶ 5, Armstrong 746 P.2d v. Nether- prove plaintiff that the can facts to doubt support no Co., 170, 12, Pipeline lands Const. Bryan claim. Memorial Frazier Court, 762, 764; Smith v. P.2d State Industrial 281; Authority, Hosp. OK 775 P.2d ¶11, 320-321; OK Gibson, 45-46, Conley v. S.Ct. 355 U.S. State, 280, 10, McMinn v. 2 L.Ed.2d 80 954, 957. process require 56. Minimum standards of due persons given opportunity be notice and an evidentiary absence of a full hearing. opportu- not afforded an notice and and fair

were Instead, presented only arguments nity oral were proceeding be heard.58 In the vacation single motion for misconceived sum- today, under review the court upon is called judgment. assert mary Defendants that the to determine fact relating issues § require an O.S.1991 relating prudential well as fact issues to the evidentiary hearing may before vacating judgment's restrictions on which are 1031(4).57 pursuant § Although vacated in today’s opinion. set forth On disput- these agree opportunity we that an to offer evi- parties ed fact must an issues be afforded disputed must dence fact issues be afford- opportunity present evidence. parties proceeding, ed the a vacation we ¶42 appellate An court cannot imposes disagree that it is 1034 that this make first-instance decisions.59In the battle authorizes, requirement. Section but 108k case, waged by parties motions in this require, evidentiary hearing. does an unresolved fact issues went undetected. merely speaks to the issues trial court’s to receive failure evidence seeking up vacation must and sets meet (to disputed these makes issues her decision order which the court consider the judgment) premature vacate the Patel I parties’ contentions. The must deter- constitutes an abuse of discretion. We statutory ground there is a mine 90,489 therefore remand No. Cause vacating petition- and that the court of first inqui instance undertake an cognizable an er has available defense into, ry on, and make its determination action. cause of disputed issues.60 critical fact ¶41 apart Nevertheless dispositive where issues a va IV quest call cation court to re NO REMEDY IS CIVIL AVAILABLE controversies, one or op solve more fact FOR LITIGATION-RELATED portunity proof provided. must adduce MISCONDUCT61 inexorably The Constitution commands that ¶43 rights adversely In the no one’s are to be affected second case under process by judicial place in today, takes the review we are asked to the reverse provisions producing proof sought 57. The of 12 O.S.1991 1034 burden are: of for the relief (or may substandard) try upon Court produc "The first and decide bears the risk of failed Director, Collieries, grounds modify to vacate or a or order tion. v. OWCP Greenwich trying 267, 272, 2251, deciding upon validity or before of the 512 U.S. 114 S.Ct. 2255-2256 (1994). or cause defense of action." by 129 L.Ed.2d 221 defeat to Patel’s day’s pronouncement irreversibly need not be fi See, Franklin, 58. PFL Ins. Co. v. 1998 OK Life prius proceedings nal. Remand nisi for further 32, 119, 156, 958 P.2d 162. opportunity supply will afford her the needs, deficiency. proof The she now absent necessary finding 59. When of facts and conclu record, appear clearly from the not does to be absent, of sions law are case must be re beyond ability upon her to secure remand. Sher they by manded with directions be made W.O.W., 204, Sovereign Camp, rill v. 184 Okl. 86 Impact Group, court. Toxic Waste Inc. v. 295, (1939); P.2d Guinn v. 296 Church Christ Leavitt, 906, of 148, 913; Dyke 1994 OK 890 P.2d v. Collinsville, 8, 766, OK 1989 775 P.2d of Inc., 114, Hospital, Francis 1993 Saint OK 295, Teel, 13; P.2d n. Teel v. 1988 OK today holding governed 61.The court’s is not 994, 999, 19; Sandpiper Apart 766 P.2d n. North remedy contemplated by provisions the civil Bank, Ltd. v. American ments Nat. OK of the criminal found at 21 statute O.S.1991 983, 993; Bartlett, P.2d Estate Matter of of § 575. state: Its 377; OK 680 P.2d Davis v. Gwalt who, "Every attorney attorney whether as or ney, 1955 OK 291 P.2d counselor, as who: sum, 1st, collusion, any guilty In court's affirmance of her nisi is of deceit or or (in 90,489) victory prius any is Cause No. not Patel’s consents to deceit or collusion with intent quest party; guilty on this of due record. Submission her for to deceive the or ... is misdemeanor; and, proof today’s deficient of relief mandates re- in addition to the code, Upon punishment prescribed versal. Patel must fall loss from the therefor this probative infirmity. duty injured damages, found was the he Hers forfeits to the treble supply evidentiary basis for the vacation or- to be recovered civil action.” in a Heath, terms, By applicable der. Gavin v. Okl. its not P. 575 is to this case. remedy requires The One on whom law casts the civil authorized there fraud, deceit, “prima perjury, failure to or Patel’s action for nominated of tort dismissal tort”, damages petition were state a claim. claim. In that action facie fails to state a deceit, fraud, sought properly for It was dismissed. defendants’ spoliation evidence perjury, and of damages spolia- 45 Patel also claims for prius dis- reviewing I trial. a nisi evidence, denominating claim ei- tion of her dismissal, stand before position the issues spoliation prima of facie ther evidence or purpose for The this court de novo review. spoliation pri- nor Neither evidence tort. of legal to test of a motion dismiss is (for constituting spoliation ma facie tort acts to evaluate sufficiency pleadings, of the not evidence) recognized by this has ever been underlying question before facts.62 the conduct court as actionable. Because whether, plaintiffs taking hence all of us is present complained of this action does not true, precluded from allegations as she is evidence, spoliation case of we need recovering as a law. hold matter of We today that tort should consider whether barred. she is in this recognized as a viable of action cause Parker-Hugh state. ¶ 44 In v. Cooper state no ey,63 this court held that this Spoliation is defined as “[t]he damages be maintained for civil action destruc destruction evidence.... for by perjury, caused whether tion, significant meaningful alter or damages perjury or as refers the tort as Spo ation of a document or instrument.”64 holding in fraud or deceit. The court’s Coo when relevant liation occurs evidence perjurious testimony con per reasoned that destroyed, prospective litigation ad civil a fraud or on the finders stitutes deceit versely affecting ability litigant whole, judicial system fact and on the jur prove Although her a few his or claim. The court litigant. and not on an individual adopted spoliat have tort of isdictions law, looked to the common the Oklahoma ion,65 most of the which have consid courts Constitution, statutory pro and to Oklahoma recognize ered the issue refused It found for the visions. there no independent spoliation as an of action cause adoption provide a tort dam remedy in tort.66 peti perjury. Patel’s ages for To the extent perjurious testimony as the 47 No destruction or alteration relies on tion damages, place claim de- in this of her whether a document instrument took basis 37,¶ 9, 916, 922; pro- criminal 936 P.2d Diversi- antecedent criminal conviction. No OK National Services, ceeding against defen- Corporate has been instituted these Business Financial Inc. fied express opinion regard Inc., 9,¶36, We dants. no Opportunities, viability brought pursu- a civil 662, 665; Ford, action if one is Doenges Delbrel Bros. to the terms of ant this statute. must 1320. The court challenged pleading’s take as true all of the alle- 6,¶ Gammill, 149, 844 62. Zaharias v. 1992 OK together gations with all reasonable inferences Fraser, 137, According P.2d to Professor my be drawn them. Great Plains from petition is sufficient the Oklahoma Plead Dabney, Savings Federal and v. Loan Association ing Code if it "the existence of discloses 4, 2, 3, 1090, ¶ 1088, OK n. n. 3. 1993 846 P.2d necessary recognized legally claim elements of a Fraser, George or cause of action." B. Code, 35, Pleading 38 Petition Under New Okla. OK 894 63. 1995 P.2d 1096. (1985). generally L.Rev. 246 A can only any cognizable legal be dismissed for lack of ed.1979). (5th dictionary 64. Black's 1257 law theory cognizable or for insufficient facts under Loosen, legal theory. ¶ 1997 OK Lockhart v. Gurvich, (Fla.Dist. Bondu v. 473 So.2d 1307 1077; Washington v. State ex 943 P.2d denied, (Fla.1986); Ct.App.1984),rev. 484 So.2d 7 139, 7,¶ Corrections, Department rel. Municipality Anchorage, v. Hazen 361; Bank v. 915 P.2d indiana National CBS, Inc., 1986); (Alaska Viviano v. Services, Department State Human denied, (1991), N.J.Super. cert. 597 A.2d 543 ¶ to dismiss 375. A motion (1992); N.J. 606 A.2d 375 Smith state a which relief can for failure to claim Co., St.3d Howard Johnson 67 Ohio granted will not unless it should be sustained N.E.2d 1037 prove appear plaintiff without doubt can support of facts in the claim for relief. no set (Tex. 1998) Ortega, Cleaning Carpet & v. The Em 66. Trevino 969 S.W.2d 950 A-Plus Janitorial Association, ployers’ Compensation cited therein Workers' and cases at 952. allegedly wrongful PRONOUNCEMENT; ease. conduct here TODAY’S THE respond consists of defendants’ failure to ful- TRIAL COURT’S ORDER OF DISMISS- ly discovery in the course of and of the oral AL IN CAUSE NO. 582 IS AFFIRMED. misrepresentation at trial defendants’ at- torney ¶ as to the existence of a document in HODGES, LAVENDER, ALMA credentialing Patel’s file. Adequate reme- WILSON, KAUGER, WATT, JJ., dies this conduct exist. such reme- One concur; dy, quest, currently pursu- a vacation Patel is HARGRAVE, V.C.J., in concurs ing. If she is in vacating successful the Patel result; judgment, discovery I or other sanctions for litigation-related the defendants’ misconduct SUMMERS, C.J., SIMMS, J., warranted, in original may, if case part part. concur in and dissent in imposed reopened Apart in the case. C.J., SUMMERS, concurring part case, existing remedies available within the dissenting part. party aggrieved by litigation-related miscon- duct seek to invoke sanctions available ¶ 1 I opinion concur in the dispos- Court’s and, under the criminal law case 89,582. ing appeal no. misconduct, attorney disciplinary bar appeal 90,489, 2 As to no. I concur with correctly measures.67 The trial court dis- most of what the regarding Court has said missed this claim. applicable dissent, the law to that I matter. however, from remand. Defendants were

V given opportunity to offer further sub- SUMMARY missions, and stood silent. I believe at that § 48 The 12of O.S.1991 1031 point in parties time the trial court and all provide seq. legislatively et created mecha- justifiably concluded that the matter stood judgments. nism for relief from The fourth fully I submitted. would affirm the trial ground for relief under prac- 1031—fraud court. ticed the successful in obtaining the alleged available whether the —is SIMMS, J., concurring in part and regarded is as extrinsic or intrinsic. dissenting part: allegations Patel’s fall within meaning ¶ 1 I agree majority with the that no civil 1031(4). It remains for her to convince the remedy alleged litigation for the misconduct prius nisi that she was unable at I in affirming available and concur the trial point in proceed- course of the I Patel III, courts dismissal of Patel case number ings to neutralize the adverse effects 89,582. Additionally, agree major- with the fraud, and that the fraud so contributed ity that the trial court abused its discretion reaching the against verdict her that in its I, in vacating in Patel case absence probably prevailed she would 90,489. number That was final on her cause of action. Finally, while we plaintiffs allegations acknowledge the of her litigation-re- seriousness of petition, proven, lated misconduct even if such as that were insuffi- III, explicitly today provide we decline cient sustain her action and the trial favqr. through redress for that civil harm adop- courts decision her I would not remedies, tion a new tort. The available remand the hearing, matter for an additional including the relief Patel seeks the Patel however. Instead I would reverse the trial proceeding, II are sufficient. courts in favor of Patel and direct the trial court to enter in favor of THE TRIAL COURT’S POST- the defendants. Plaintiff bore the burden to 90,- JUDGMENT ORDER IN CAUSE NO. prove Heath, e.g. her case. See Gavin v. THE VACATING PATEL I JUDG- MENT Okl. 256 P. 745 IS REVERSED AND THE She had the CAUSE but, opportunity REMANDED by any FOR FURTHER establish her case PRO- measures, so, CEEDINGS TO BE CONSISTENT and all WITH she failed to do and the See, e.g. 21 O.S.1991 575. clearly ruling in her favor was courts The motion abuse of discretion. defendants sustained. dismiss should been the denial of a

majority’s stated concern with put opportunity for

sufficient defendants

on their case defense of the is, therefore, strained and unconvinc-

vacate

ing disposition. lends no credence to this majority errs in Patel this addi- granting try

tional chance to make her case defendants,

against and I “new” fear this govern

view created the trial of fraud here to create in this remand will much confusion

previously area of settled law.

1999 OK 55 SNIDER, Appellant,

Kenneth W.

STATE of Oklahoma ex rel. OKLAHOMA COMMISSION;

REAL ESTATE

Appellee. 88,917.

No.

Supreme Court of Oklahoma.

June

Rehearing Sept. Denied

Case Details

Case Name: Patel v. OMH Medical Center, Inc.

Court Name: Supreme Court of Oklahoma

Date Published: Apr 27, 1999

Citation: 987 P.2d 1185

Docket Number: 90,489, 89,582

Court Abbreviation: Okla.