alleged six facts as the basis for vacating the June 14, 2021 Judgment: (1) he was never served with process; (2) the Judgment was never mailed to him; (3) the return of service was untrue and fraudulently filed; (4) the Plaintiff died on June 14, 2021; (5) no testimony was presented to support the findings in the Judgment; and (6) he has a defense to the action. On the basis of these allegations, Rutherford argued that he had invoked the second, third, fourth, fifth and sixth grounds authorized by section 1031 for vacating a judgment. See 12 O.S.2021 § 1031 (2) through 1031(6). However, not all of those grounds are applicable.
¶13 For example, although Rutherford argued that he was relying on section 1031(5), he has not raised any fact issue warranting an evidentiary hearing on that ground. Nothing in the record reflects that during these proceedings Rutherford was "an infant, or person of unsound mind." 12 O.S.2021 § 1031 (5). Further, the fact that the record does not reflect that a copy of the June 14, 2021 Judgment was mailed to him as required by 12 O.S.2021 § 696.2 (B) does not affect the validity of the Judgment but only the time to perfect an appeal of that Judgment. See Owens v. Owens , 2023 OK 12 , ¶ 31,
529 P.3d 905 , 915 (for judgments entered prior to February 14, 2023, the time to appeal begins on actual notice of the judgment, not record evidence of compliance with section 696.2(B)).
¶14 Finally, Rutherford argued that he was invoking the district court's "entirely unrestricted" power to vacate the Judgment, citing Schepp v. Hess , 1989 OK 28 , ¶ 8, 770 P.2d 34 , 38. Schepp concerned a motion to vacate filed within thirty days pursuant to 12 O.S.2021 § 1031.1 . Rutherford's petition to vacate, which was filed more than thirty days after the June 14, 2021 Judgment, did not invoke the district court's "term-time" power to vacate that Judgment pursuant to section 1031.1. The inapplicability of Schepp to Rutherford's petition is obvious and undeniable. Therefore, the allegations in Rutherford's petition must come within "the parameters of § 1031 relief." F.D.I.C. v. Jernigan , 1995 OK 54 , ¶ 8, n.13,
901 P.2d 793 , 796 n.13 (footnote omitted). ¶15 Consequently, of the section 1031 grounds, only four are potentially applicable.
I. Irregularity in Obtaining the Judgment
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¶16 Rutherford's section 1031(3) argument, that there was "irregularity" in obtaining the Judgment because no testimony was presented to support the Judgment, is unavailable in this post-judgment vacation proceeding, even assuming that the unsubstantiated claim is true. "[I]n an appeal from an order denying 12 O.S. § 1031 or § 1031.1 relief 'this court may not look to the original judgment but stands confined in its review to the correctness of the trial court's action' deciding the motion filed pursuant to 12 O.S. §§ 1031 , 1031.1." Berkson v. State ex rel. Askins , 2023 OK 70 , ¶ 16, 532 P.3d 36 , 44 (footnote omitted). Accord Kordis v. Kordis , 2001 OK 99 , ¶ 6, 37 P.3d 866 , 869.
¶17 To challenge the evidence offered in support of the Judgment, Rutherford would have had to perfect a timely appeal of that Judgment. Salyer v. Nat'l Trailer Convoy, Inc ., 1986 OK 70 , ¶ 3, n.5, 727 P.2d 1361 , 1363 n.5; Mayhue v. Mayhue , 1985 OK 68 , ¶ 8, 706 P.2d 890 , 895. He did not. Consequently, the district court did not err in denying Rutherford's petition to vacate because of the alleged "irregularity" in obtaining the Judgment. Errors regarding findings of fact necessary to a judgment "do not constitute irregularities, and are not grounds for vacation of a judgment under 12 O.S. [2021] § 1031." Cunningham v. Cunningham , 1977 OK 203 , ¶ 21, 571 P.2d 839 , 843.
II. Death of a Party ¶18 It is undisputed that Joseph Zalar died on January 12, 2019, before the June 14, 2021 Judgment was rendered. However, it is also undisputed that Zalar's Estate was substituted as the plaintiff in this action prior to entry of that Judgment. As the Judgment reflects: "all rights, claims, choses in action of the Plaintiff are now vested in his estate so created, and the Estate of Joseph Zalar, Jr., is substituted as party Plaintiff." Rutherford complains that he was not provided notice of the probate proceeding or served a copy of a motion to substitute Zalar's Estate as the plaintiff. This argument lacks merit for three reasons.
¶19 First, Rutherford attached a copy of the Journal Entry of Judgment in the Comanche County litigation to his supplemental district court briefing in this case. That judgment reflects that the Estate of Zalar, through his co-personal representatives, was substituted as the plaintiff for Joseph Zalar prior to the trial on December 2, 2021. And the appellate court's Opinion on appeal from the Comanche County case also notes that the district court ordered the substitution on August 24, 2021. See Joseph Zalar, Jr. v. The Lawtonian, L.L.C., John Rutherford, and J. Steve Fite , No. 121,090, slip op. at 2, n.1 (Okla. Ct. App., Div. III, Jul. 8, 2024), cert. denied (Okla. Sup. Ct., Feb. 10, 2025). Rutherford does not argue that he was unaware of, or not served with, the motion to substitute Zalar's Estate as the plaintiff in the Comanche County case. ¶20 Second, as a party in default, Rutherford was not entitled to service of any notice to substitute Zalar's Estate as the plaintiff in this case. 12 O.S.2021 § 2005 (A). See also Campbell v. Campbell , 1994 OK 84 , ¶ 15, 878 P.2d 1037 , 1040 (recognizing that " [o]ral motions are acceptable in this jurisdiction"). Whether by written or oral motion, the Judgment reflects that Zalar's Estate was substituted as the plaintiff at the time the Judgment was entered. ¶21 Third, Rutherford cited Campbell as support for his argument that the attorney who obtained the June 14, 2021 Judgment did not have authority to act after Joseph Zalar's death. Campbell does hold that the authority of a deceased party's attorney ceases on the death of that party. Id. ¶ 25, 878 P.2d at 1043. Campbell does not hold that the attorney who represented the deceased party cannot be subsequently retained by the estate of that party and continue in the same action. In fact, Campbell explicitly recognizes that the attorney's representation can continue where, as in this case, the representatives of the Estate "are officially appointed as representatives and after they then retain the deceased's attorney." Id . (footnote omitted). According to materials Rutherford submitted with his summary judgment motion, the law firm that obtained the Judgment is the same law firm that represented Zalar's Estate in the probate proceeding, and representation began more than two years before the Judgment in this case was obtained. ¶22 Patel holds that "where the dispositive issues in a vacation quest call upon the trial court to resolve one or more fact controversies, an opportunity to adduce proof must be provided." Patel v. OMH Med. Ctr., Inc ., 1999 OK 33 , ¶ 41, 987 P.2d 1185 , 1201. However, "there is no impediment to the consideration of undisputed facts [and] an evidentiary hearing is not required in every vacation proceeding." In re Estate of Hughes , 2004 OK 20 , ¶ 19, 90 P.3d 1000 , 1006 (citing Patel , 1999 OK 33 , ¶ 18, 987 P.2d at 1193). On remand, an evidentiary hearing is not required on the substitution issue or for determination of the proper party plaintiff. Rutherford's submissions to the district court are insufficient to "overcome the law's presumption of regularity that attaches to a judgment . . . and to the judicial proceedings that precede it." F.D.I.C. v. Jernigan , 1995 OK 54 , ¶ 8, 901 P.2d 793 , 796.
III. Fraud in Obtaining the Judgment ¶23 Rutherford's fraud argument lacks specificity. His petition alleges that the return of service was "untrue" and
"fraudulently filed." The factual basis for this allegation is lacking but for Rutherford's affidavit verifying that the allegation is true "to the best of his knowledge and belief." Nonetheless, Patel holds that where there are disputed issues of fact, an evidentiary hearing is required when the district court is deciding whether to vacate or refuse to vacate a judgment based on section 1031(4). Patel , 1999 OK 33 , ¶ 21, 987 P.2d 1185 , 1194. On remand, Rutherford shall be permitted an opportunity to show that the process server, who filed the return of service showing that Rutherford was served in this case on March 16, 2015, falsified that document or that it was otherwise fraudulently filed.
IV. Lack of Notice ¶24 The final evidentiary issue raised in Rutherford's petition is the allegation that he was not served with process in this case. Rutherford states in his affidavit that he was never served with a summons. However, even if Rutherford was not personally delivered a copy of the summons and petition, that does not mean that "Service by Personal Delivery" was not accomplished according to 12 O.S.2021 § 2004 (C)(1)(c)(1), "by leaving copies thereof at the person's dwelling house or usual place of abode with some person then residing therein who is fifteen (15) years of age or older." The Proof of Service
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filed in this case reflects that a copy of the summons and petition was left at Rutherford's usual place of residence with Gail Rutherford, "a resident/family member, fifteen years of age or older." There is no affidavit or other evidence from Gail Rutherford to contradict the representations in this document. Nor is there any acceptable evidentiary substitute contradicting the district court's finding in the Judgment that Rutherford was "properly served with summons in the manner proscribed [sic] by law as shown by the returns of service previously filed herein, which service is approved in all respects." The district court's decision comes to the appellate court "clothed with a presumption of correctness." Willis v. Sequoyah House, Inc ., 2008 OK 87 , ¶ 15, 194 P.3d 1285 , 1290.
¶25 Nonetheless, every fact asserted in the Proof of Service could be true and service by personal delivery could still be defective. For example, if the address reflected in the Proof of Service was not Rutherford's "dwelling house or usual place of abode," if Gail Rutherford did not reside at that address, or if Gail Rutherford was not fifteen years of age or older, then the service on Rutherford would not satisfy the requirements of section 2004(C)(1)(c)(1). Patel requires remand for an evidentiary hearing on these limited factual questions.
V. Prudential Analysis ¶26 If, on remand, Rutherford is not able to produce evidence of a fraudulent return of service or that he was not served as required by section 2004(C)(1)(c)(1), he will have failed to justify vacation of the June 14, 2021 Judgment. However, even if he is able to do so, he will not automatically be entitled to the relief he seeks in this vacation proceeding. "A vacation quest must be evaluated in light of the principle of the finality of judgments." Patel v. OMH Med. Ctr., Inc ., 1999 OK 33 , ¶ 37, 987 P.2d 1185 , 1199. Assuming Rutherford can produce "clear and convincing evidence" of any fraud, the district court will have to evaluate the four "prudential" factors discussed in Patel before deciding whether to vacate the Judgment. Id. ¶ 38, 987 P.2d at 1200.
¶27 For example, Rutherford will have to show that he "acted without delay" after he discovered the allegedly fraudulent service. Id. His petition to vacate was filed on May 23, 2023, alleging that he did not discover that he was a defendant in this action until March of 2023. The Estate argues that a copy of the June 14, 2021 Judgment was discussed and read into the record during the trial of the Comanche County case on December 2, 2021. Rutherford appears to concede the Estate's position but counters that, although the Judgment was offered as an exhibit during the December 2, 2021 trial, it was not admitted because his objection to its admission was sustained. If Rutherford was aware that he was a defendant in this case no later than December 2, 2021, it is doubtful that he acted without delay in filing his petition to vacate one year and a half later. But that is for the district court to decide on remand.
¶28 Further, Rutherford will have to show "that granting a new trial will not be a useless exercise." Patel , 1999 OK 33 , ¶ 38, 987 P.2d at 1200. And that requires more than just showing that he "has a defense." Setting aside a judgment to hear a "defense" that ends in the same result is a "useless exercise." The Patel analysis is particularly relevant here because Rutherford alleged that his defense to this litigation was the same one with which he had "successfully defended"
the Comanche County litigation, "the only difference being the real property location." However, the success of that defense is in doubt. The judgment in favor of Rutherford in the Comanche County case, refusing to cancel a deed to the Lawtonian property in Lawton, Oklahoma, was reversed. See Joseph Zalar, Jr. v. The Lawtonian, L.L.C., John Rutherford, and J. Steve Fite , 121,090 (Okla. Ct. App., Div. III, Jul. 8, 2024), cert. denied (Okla. Sup. Ct., Feb. 10, 2025). ¶29 The deed Zalar's Estate sought to cancel in the Comanche County litigation conveyed an interest in the Lawtonian to Rutherford. Another division of this Court held that Rutherford and Zalar had a confidential relationship that may have resulted in undue influence being exercised by Rutherford, causing Zalar to unwittingly and unwillingly sign the deed. The case was remanded for further proceedings to determine that issue. Zalar , slip op. at 14-16. The deed at issue in the Comanche County litigation was executed during the same period that Zalar signed the deed at issue in this litigation. ¶30 Finally, Rutherford's interest, if any, in this litigation is not apparent from the record. The materials submitted indicate Fite testified in the Comanche County litigation that Joseph Zalar, prior to his death, "was 100 percent owner of JZEE Properties." The deed canceled in this litigation was between Zalar and JZEE Properties. Rutherford may claim some interest in the Stephens County properties once owned by Zalar, but it does not appear that Rutherford has any interest in cancellation of a deed of properties to an entity owned by someone else.
CONCLUSION
¶31 Patel v. OMH Medical Center, Inc ., 1999 OK 33 , 987 P.2d 1185 , requires that Rutherford be provided "an opportunity to adduce proof" to show whether he was served as required by 12 O.S.2021 § 2004 (C)(1)(c)(1) and/or whether the return of service is untrue and fraudulently filed as he has alleged. Patel , 1999 OK 33 , ¶ 41, 987 P.2d 1185 , 1201. If the district court finds that Rutherford prevails on either of these issues, Patel directs the court to engage in a
"prudential" analysis balancing the principle of finality of judgments with Rutherford's reasonable opportunity to litigate his defense to this deed cancellation action. Id. ¶ 38, 987 P.2d at 1200. The Final Order that is the subject of this appeal is vacated, and this case is remanded with the above instructions.
¶32 VACATED AND REMANDED WITH INSTRUCTIONS .
WISEMAN, P.J., concurs, and BLACKWELL, J., concurs in part and dissents in part.
BLACKWELL, J., concurring in part and dissenting in part:
¶1 I concur in the Court's judgment and all of the Court's opinion except Part IV. It appears Part IV is grounded in subsection two of 12 O.S. § 1031 , which allows vacatur "[a]s authorized in subsection C of Section 2004 of this title where
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the defendant had no actual notice of the pendency of the action at the time of the filing of the judgment or order." 12 O.S. § 1031 . However, while § 2004 authorizes the vacatur of default judgments in a number of circumstances, see , e.g. , 12 O.S. § 2004 (C)(2)(c) (concerning service by mail); § 2004(C)(3)(d)-(f) (concerning service by publication); § 2004(C)(4)
(e) (concerning service on the Secretary of State), no analogous provision appears in § 2004(C)(1), which concerns service by personal delivery. As such, I do not believe § 1031 permits vacatur as countenanced in Part IV of the Court's opinion, and there is, therefore, no cause to remand to resolve the questions identified in that section. In all other respects, I concur.
FOOTNOTES
1 As a result, Rutherford's argument that the summary judgment procedure by which all facts asserted in a motion must be taken as true unless contradicted by the opposing party has no merit.
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