¶36 This is not to say, however, that summary judgment may not properly be granted where the opposing party fails to timely or properly respond, or that an order granting summary judgment upon the failure of the opponent to timely or properly respond should always be vacated. See, e.g., Friedman v. Craig, 2010 OK CIV APP 83, 241 P.3d 681; Ross v. Pace, 2004 OK 13, 87 P.3d 593. The primary question in these cases is whether, under the facts and circumstances of the particular case, the trial court abused its discretion in denying the motion to vacate after granting summary judgment by default.
¶ 36 This is not to say, however, that summary judgment may not properly be granted where the opposing party fails to timely or properly respond, or that an order granting summary judgment upon the failure of the opponent to timely or properly respond should always be vacated. See, e.g., Friedman v. Craig, 2010 OK CIV APP 83, 241 P.3d 681; Ross v. Pace, 2004 OK 13, 87 P.3d 593. The primary question in these cases is whether, under the facts and circumstances of the particular case, the trial court abused its discretion in denying the motion to vacate after granting summary judgment by default.
We disagree with the dissent's conclusion, based on a non-§ 1031.1 case (Farm Credit Bank of Wichita v. Trent, 1997 OK 70, ¶ 22, 943 P.2d 588, 592), that Mother and Father must show by cogent, clear, and convincing evidence "sufficient cause" for their non-appearance in order to prevail on their motion to vacate pursuant to 12 O.S.2011 § 1031.1. Further, the dissent's reliance on Woodruff v. Moore, 1938 OK 119, 77 P.2d 62, and Ross v. Pace, 2004 OK 13, 87 P.3d 593, is misplaced--the former being a 12 O.S. § 1031 case raising questions of whether statutory grounds ("irregularity in obtaining the judgment") and defenses to the action had been proven by defendant, and the latter involving failure to respond to discovery after a "number of opportunities." Ross, 2004 OK 13 at ¶ 12, 87 P.3d at 595.
We disagree with the dissent's conclusion, based on a non 1031.1 case (Farm Credit Bank of Wichita v. Trent, 1997 OK 70, ¶ 22, 943 P.2d 588, 592), that Mother and Father must show by cogent, clear, and convincing evidence “sufficient cause” for their non-appearance in order to prevail on their motion to vacate pursuant to 12 O.S.2011 1031.1. Further, the dissent's reliance on Woodruff v. Moore, 1938 OK 119, 182 Okla. 120, 77 P.2d 62, and Ross v. Pace, 2004 OK 13, 87 P.3d 593, is misplaced-the former being a 12 O.S. 1031 case raising questions of whether statutory grounds (“irregularity in obtaining the judgment”) and defenses to the action had been proven by defendant, and the latter involving failure to respond to discovery after a “number of opportunities.” Ross, 2004 OK 13 at ¶ 12, 87 P.3d at 595.
¶24 When a party has been given multiple opportunities to respond to litigation but fails to respond or appear, the refusal to vacate a default judgment is correct. Ross v. Pace, 2004 OK 13, ¶ 12, 87 P.3d 593, 595. In Ross, the plaintiff's failure to respond to two separate discovery requests, failure to respond to a motion for summary judgment, and failure to appear for the hearing on the summary judgment motion led to the trial court granting summary judgment for the defendant.
The issue is whether the trial court erred in allowing unanswered requests for admission to serve as the basis for granting summary judgment to plaintiff. A recent opinion of this Court, Ross v. Pace, 2004 OK 13, 87 P.3d 593, upheld a trial court's refusal to vacate summary judgment premised on plaintiff's failure to respond to defendant's requests for admission. That case also held that the trial judge did not abuse its discretion in denying the plaintiff's request to withdraw or amend the admissions. We find that the trial judge in this case did not abuse her discretion in refusing to allow defendant's untimely filing of its response to the requests for admission and hold that summary judgment should be affirmed.
At one end of the spectrum are cases holding that the trial court's refusal to vacate a default judgment was not an abuse of discretion. ¶ 20 In Ross v. Pace, 2004 OK 13, 87 P.3d 593, the plaintiff's attorneys were served with discovery requests, to which they did not respond. After repeated attempts to obtain compliance, the defendant filed a motion for summary judgment, asking that the unanswered requests for admission be deemed admitted. The trial court granted summary judgment.