Attorney Abandonment Plus No-Hearing, Unsupported Damages/Fee Awards Constitute “Unavoidable Casualty or Misfortune” Warranting Vacation of Judgment

Case: BJORKMAN v. NOBLE, 2025 OK 62 (Supreme Court of Oklahoma, Sept. 30, 2025)
Posture: Certiorari to the Court of Civil Appeals (Division III) from a post-judgment order denying a motion to vacate.

1. Introduction

Homeowners in a real estate development (multiple individuals and trustees, collectively “Homeowners”) sued developer/landowner Terry B. Noble (“Noble”) alleging conversion, trespass, outrage, reformation of restrictive covenants, quiet title, and injunctive relief related to alleged interference with common-area use. Although Noble timely answered through counsel, Homeowners later moved for summary judgment. Noble’s counsel did not respond, and the district court entered summary judgment and awarded $75,000 actual damages, $50,000 punitive damages, and $20,000 attorney’s fees—without a damages or fee hearing.

More than 30 days later, Noble sought to vacate under 12 O.S.2021, §§ 1031 and 1033, asserting (among other grounds) “unavoidable casualty or misfortune” due to his attorney’s failure to communicate and effectively abandoning the matter, and due process deficiencies in the damages and fee awards. The district court denied relief; COCA affirmed; the Supreme Court granted certiorari.

2. Summary of the Opinion

3. Analysis

3.1 Precedents Cited (and How They Shaped the Result)

A. Standard of review and discretion framework

• Ferguson Enters., Inc. v. H. Webb Enters., Inc., 2000 OK 78: The Court reaffirmed abuse-of-discretion review for orders on vacatur, anchoring its willingness to intervene only where legal error or unreasonable judgment appears.
• Okla. City Zoological Tr. v. State ex rel. Pub. Emps. Relations Bd., 2007 OK 21: Provided the operative definition of “abuse of discretion” (erroneous legal interpretation, unsupported factual findings, or unreasonable weighing).
• Midkiff v. Luckey, 1966 OK 49: Supplied the comparative principle that appellate courts require a “much stronger showing” to disturb an order setting aside a judgment than one refusing to do so—yet the Court still found the required showing here.

B. Vacatur procedure and pleading a defense under § 1033

• State ex rel. Hunt v. Liberty Inv'rs Life Ins. Co., 1975 OK 165: Emphasized that litigants must substantially comply with § 1033’s procedural requirements, rather than satisfy them with hypertechnical perfection.
• State ex rel. Comm’rs of Land Office v. Jones, 1947 OK 29: The Court relied on this to reject the idea that a movant must plead a defense to the entire case; it is enough to plead a defense to a portion—here, the damages and fee components.

C. “Unavoidable casualty or misfortune” and attorney conduct

• Am. Bank of Commerce v. Chavis, 1982 OK 66: This decision is the centerpiece. Chavis moved Oklahoma away from an older, rigid conception of unavoidable casualty (limited to sickness, death, mail mishaps, etc.) and toward a totality-of-the-circumstances inquiry. It also recognized that, in sufficiently grave circumstances, attorney neglect can justify vacatur—especially where the neglect effectively deprives a party of a day in court.
  
  The Court analogized Noble’s situation to Chavis: a breakdown in counsel’s office procedures and reliance/misinformation dynamics contributed to a procedural failure (non-response) culminating in judgment.
• Rogers v. Sheppard, 1948 OK 86, and McLaughlin v. Nettleton, 1915 OK 272: These cases supply the principle that attorney abandonment—withdrawal in fact without notice and without appropriate steps—constitutes unavoidable casualty or misfortune because a client may reasonably rely on counsel to carry a case through or provide notice and opportunity to protect the client’s interests.
• Grayson v. Stith, 1937 OK 610: Reinforced the reliance interest: clients are entitled to be kept advised of case progress; abandonment undermines that reliance and can justify post-judgment relief.
• Hart v. Pharaoh, 1961 OK 45: Supported the Court’s conclusion that even a miscommunication leading to abandonment can qualify as unavoidable casualty or misfortune.
• Burroughs v. Bob Martin Corp., 1975 OK 80: Served as an equity-and-justice touchstone: district courts have discretion to vacate judgments when justice is better served by allowing a litigant a “day in court,” a theme the Court used to justify intervention given the combined procedural failures.
• State ex rel. Okla. Bar 2551 v. Johnson, 2024 OK 62: While not essential to the legal test, the Court cited the disciplinary decision to corroborate that Noble’s need to appeal was “caused by [Johnson’s] lack of communication and diligence,” and to reject counsel’s “unconvincing” claim he thought he was fired.

D. Due process and statutory right to a damages hearing

• Payne v. DeWitt, 1999 OK 93: The Court treated Payne as the controlling statement that parties have a statutory right to a fair inquiry into damages—participation included—under 12 O.S.2021, § 688. Crucially, the Court applied that logic beyond classic default judgments, emphasizing § 688’s text (“after a decision of an issue of law”) and characterizing an unopposed summary judgment as functionally “akin” to default for damages-protection purposes.

E. Attorney fee authority and evidentiary requirements

• Winters v. City of Okla. City, 1987 OK 63: The Court reaffirmed the American Rule (no fees absent statute or contract) and rejected Homeowners’ attempt to rely on generalized equitable power; Winters recognizes a bad faith exception, but the district court did not invoke it.
• State ex rel. Burk v. City of Okla. City, 1979 OK 115: Supplied the procedural/evidentiary demands for fee shifting: detailed time records and evidence of reasonable value, and judicial findings grounded in the record.
• Fleig v. Landmark Constr. Grp., 2024 OK 25: Reinforced that courts cannot simply accept a party’s number; they must make specific findings and computations. The Court used Fleig to highlight the infirmity of a $20,000 fee award entered without application, affidavits, billing support, or hearing.

3.2 Legal Reasoning

A. § 1033 defense pleading: substantial compliance and partial defenses

The Court first removed a procedural obstacle identified by COCA: § 1033 requires a verified petition that “set[s] forth a defense.” Rather than demand a newly drafted, standalone merits defense to every claim, the Court accepted (i) Noble’s reference to his previously filed answer containing multiple affirmative defenses and (ii) the petition’s targeted challenge to damages, punitive damages, and fees.

Importantly, the Court treated the “defense” requirement as satisfied where the movant shows a potentially meritorious defense to part of the judgment—consistent with State ex rel. Comm’rs of Land Office v. Jones. That framing matters because it shifts the focus from whether Noble could defeat every tort/property claim to whether the judgment, as entered, was defensible in its monetary components.

B. Unavoidable casualty or misfortune: “facts and circumstances,” not rigid categories

Relying on Am. Bank of Commerce v. Chavis, the Court applied a holistic inquiry: whether, under all facts and circumstances, Noble was prevented from defending. The Court identified multiple reinforcing facts: counsel’s lack of communication; failure to inform Noble of summary judgment; failure to respond; failure to inform Noble of entry of judgment; internal mail/docket breakdown due to counsel’s work-from-home practices; and counsel’s mistaken, unconfirmed assumption that representation had ended (without withdrawal).

The Court characterized this as more than ordinary imputed negligence: it was effective abandonment without notice, which Oklahoma precedent treats as a paradigmatic “unavoidable casualty or misfortune” event (Rogers v. Sheppard; McLaughlin v. Nettleton; Grayson v. Stith; Hart v. Pharaoh). In short, Noble did what the system expects—retained counsel and relied on him—yet was deprived of meaningful participation.

C. Due process as a compounding factor: damages and fees entered without required procedures

The Court did not treat the attorney failure in isolation. It held that the district court’s procedures produced an independent deprivation: damages and punitive damages were entered without the hearing contemplated by § 688 and explained in Payne v. DeWitt. The Court rejected the notion that § 688 is limited to default judgments, emphasizing the statute’s express reference to decisions “after a decision of an issue of law,” which includes summary judgment.

The damages problem was amplified by a striking mismatch: the motion sought only $907.00 in damages, yet the judgment awarded $75,000 actual and $50,000 punitive. The Court treated the hearing requirement as a procedural safeguard against precisely this kind of unsupported inflation.

The fee award failed on two levels: (1) Authority—under Winters v. City of Okla. City, fees require statute or contract (or properly invoked bad faith), and none was shown; and (2) Proof/findings—under State ex rel. Burk v. City of Okla. City and Fleig v. Landmark Constr. Grp., the record must support the amount through billing evidence and judicial findings, which were absent.

3.3 Impact

• Broader availability of vacatur where counsel effectively disappears: The decision strengthens litigants’ ability to obtain relief when attorney conduct crosses from mere error into functional abandonment (especially when coupled with procedural breakdowns).
• Damages-hearing protections extend to unopposed summary judgment contexts: By reading § 688 to cover “after a decision of an issue of law,” the Court signals that courts must not treat damages as automatic after liability is resolved on summary judgment—particularly when the opponent did not respond.
• Heightened scrutiny of fee awards entered on paper without statutory/contractual basis and Burk-compliant proof: Trial courts are cautioned against inserting fee figures into judgment entries without an application, evidentiary support, and findings.
• Practical litigation consequences: Parties moving for summary judgment should anticipate that large or punitive damages and fee requests require procedural rigor (hearings, proof, findings). Conversely, judgment creditors should expect increased post-judgment vulnerability if damages/fees were entered without these safeguards.

4. Complex Concepts Simplified

• “Unavoidable casualty or misfortune” (12 O.S.2021, § 1031): A ground to set aside a judgment entered after the usual time for appeal/new trial when something beyond the party’s realistic control prevented a fair chance to defend. Oklahoma no longer confines this to narrow categories (like illness or mail mishaps); courts look at the whole situation.
• “Substantial compliance” (12 O.S.2021, § 1033): You must follow the statute’s steps closely enough to meet its purpose (notice, a real defense, proper procedure), even if not perfectly. Here, it was enough that Noble pointed to defenses already on file and clearly contested the damages/fees.
• § 688 damages hearing after an “issue of law” is decided: Even when liability is established without a trial (including via summary judgment), the law can still require a process to prove and measure damages—so the court does not award unsupported numbers.
• American Rule on attorney’s fees: Each side pays its own lawyer unless a statute, a contract, or a recognized exception (like bad faith, if properly invoked) allows shifting fees. Even then, the amount must be proven with time records and supported by findings.

5. Conclusion

BJORKMAN v. NOBLE solidifies an Oklahoma rule with two reinforcing pillars: (1) when an attorney’s conduct amounts to abandonment—especially amid office-procedure breakdowns and miscommunications—the resulting loss of a litigant’s opportunity to defend can constitute “unavoidable casualty or misfortune” warranting vacatur; and (2) trial courts must observe procedural safeguards in awarding damages and attorney’s fees, including § 688’s hearing protections and the American Rule/Burk evidentiary requirements.

The decision’s broader significance is its insistence that judgments—particularly those entered after non-response—must rest on fair process and supported proof, so that litigation outcomes reflect adjudication rather than procedural collapse.