author: KEITH RAPP, Judge:

text:
    2003 OK CIV APP 62
    Karen PETERS, Plaintiff/Appellee, v. AMERICAN INCOME LIFE INSURANCE COMPANY, a corporation, Defendant/Appellant, and David E. Dwyer, Defendant.
    No. 95,995.
    Court of Civil Appeals of Oklahoma, Division No. 2.
    June 4, 2002.
    Rehearing Denied July 22, 2002.
    Certiorari Denied May 12, 2003.

      Timothy A. Carney, Gable & Gotwals, Tulsa, OK, for Plaintiff/Appellant.
    Gary A. Eaton and W.E. Sparks, Tulsa, OK, for Defendant/Appellee.
   Opinion by

KEITH RAPP, Judge:

{1 The trial court defendant, American Income Life Insurance Company (AIL), appeals an Order overruling its motion for new trial and for judgment N.O.V. after a jury verdict was entered in favor of the trial court plaintiff, Karen Peters (Peters). AIL, by supplemental appeal, further appeals the judgment in favor of Peters for attorney fees and costs.

BACKGROUND

T2 Peters sued AIL for breach of contract and bad faith because she claimed that AIL failed to pay the proceeds of a life insurance policy and an accident policy issued to her mother, Reba Deason (Deason). The face amount of life insurance was $4,060.00. The accident policy had a death benefit for automobile accident of $40,000.00 Deason died in an automobile accident on December 4, 1996.

T3 Peters found the two policies in her mother's belongings following her death and caused a claim to be filed. AIL declined to pay either policy on the ground that Deason had not paid the initial premiums for either of the policies. Peters filed this lawsuit.

T4 Peters testified at trial that she and her husband purchased insurance from AIL in August 1996. She described the transaction as one where the agent came to the home, completed the application, and then required immediate payment of the premium. The application form noted payment of the premium.

T5 Peters' referred AIL to her mother, Deason, because her mother was interested in obtaining insurance of the type and cost provided by AIL. Arrangements were made for an AIL agent, William Bowling (Bowling), to call upon Deason and he did so in August of 1996. Peters testified she informed her mother of the need to have cash on hand to pay the premium. She also testified without dispute that her mother paid her bills in cash or by money order.

T6 AIL admits that the life and accident insurance policies here under dispute were mailed to Deason on November 27, 1996. The life insurance policy, with the application form dated August 12, 1996 attached, was admitted into evidence at trial. The application form had a block styled "Premium paid with application." Bowling completed this block in his handwriting, showing a premium of $17.53 paid. The policy had language stating that the policy was issued in consideration of the application and payment of premium and that the policy is a contract, A "Modifications" sheet was also attached to the policy. The modification reflected an increase in premium from $17.73 to $27.53. The policy was shown to have an effective date of November 14, 1996.

T7 The accident policy with its attached application was also placed in evidence. The application form had a similar block but stating only the word "Premium" and Bowling entered the premium amount in the block. This policy also had a block with the total money inserted under the heading "CWA." Testimony established that these initials stand for the phrase "cash with application." The policy in the appellate record here does not have a modification sheet attached. Policy language stated that it was issued in consideration of payment of the first premium. Other policy language terms the policy a contract. This policy also provided for an effective date of November 14, 1996.

T8 When funeral arrangements were made, Peters supplied the funeral home with the policies in question for the purpose of having the funeral home make application for proceeds in order to pay the funeral expenses. Shortly after, the funeral home advised Peters that AIL denied coverage. Peters retained an attorney to assist her in collecting the policy. This attorney stated that he was also a certified public accountant and that his practice consisted of estate planning. He said that he examined the policies and found nothing about them to indicate that they were not in force. On cross-examination he agreed that if the initial premiums were not paid on the policies then the policies would not have been in force.

T9 In addition, Peters presented an insurance executive. This witness testified that AIL had acted unreasonably by denying the claim. He further testified that the insurance documents sent to Deason and the information inserted in the application pertaining to the premiums all demonstrated that the policies' premiums had been paid.

10 AIL's position was that the premiums for both policies were not paid, so the policies never were in force. AIL's representative testified that the policies were sent to Dea-son by mistake. AIL's claims representative testified that when she was advised of Peters' claim, she checked company records for insurance. These records reflected that the premiums for the original life insurance and accident insurance policies had not been paid and she did not authorize payment of these two policies. However, a third policy for life insurance in the sum of $5,000.00 insurance had been issued and its premium paid, so she did authorize payment of policy proceeds.

11 AIL's position was also supported by its agent, Bowling, who testified that Dea-son's applications for the first two policies revealed a medical history which Bowling felt would prevent her from obtaining insurance. Bowling marked the applications "Trial App." and "Trial Application" for the purpose of ascertaining whether AIL would issue insurance and, according to him, the premiums were not paid at that time. Peters herself had no direct knowledge whether the premium was paid at that time and testified that her mother never told her whether she made payment when the applications were taken. These applications, complete with the markings, are the applications attached to the policies sent to Deason.

[ 12 Evidence elicited by Peters on cross-examination of the claims representative established that AIL had no policy and procedures in place governing "trial applications." Moreover, AIL had loose control over mailing policies to insureds.

{183 The evidence also included a letter from AIL to Deason concerning the first life insurance policy here in issue. The letter advised Deason that the policy would issue but at a higher premium. The modification attached to the life insurance policy is consistent with the advice in the letter. Deason also had the choice to decline the policy. According to AIL, Deason did in fact decline the policies, but purchased a third different life insurance policy. AIL paid the third policy proceeds upon Deason's death and the policy is not in issue here.

T 14 The jury was provided a verdiet form for breach of contract and a verdict form for bad faith,. The jury returned a verdict of $500,000.10 for breach of contract and $44,060.00 on the bad faith claim. The record indicates a degree of confusion about whether the jury transposed the verdicts. Peters' counsel requested that the jury be given a special instruction and allowed to further deliberate. The trial court declined. Peters has not appealed. The matter was submitted for punitive damages and a verdict granting punitive damages was rendered by the jury for $500,000.00.

[15 AIL filed a motion for new trial and for judgment N.O.V. Both were denied, AIL appeals.

16 Peters submitted a claim for costs and attorney fees. After a hearing, the trial court awarded costs of $7,965.12, prejudgment interest on the compensatory damages and the face amount of the insurance, and attorney fees of $241,425.00 for 807.75 hours at $300.00 per hour. AIL has supplemented its appeal to include the post trial awards.

STANDARD OF REVIEW

117 As a general rule, a motion for new trial is addressed to the trial court's sound discretion and, absent error as to a pure and unmixed question of law, or arbitrary and capricious action, every presumption should be indulged in favor of the trial court's ruling on appeal. Bennett v. Hall, 1967 OK 122, ¶ 5, 481 P.2d 339, 340-41. An abuse of discretion involves a clearly erroneous conclusion and judgment, and one that is clearly against the logic and effect of the facts presented in support of and against the proposition in issue. Oklahoma Tpk. Auth. v. Horn, 1993 OK 123, ¶ 6, 861 P.2d 304, 306.

{18 When reviewing an order on a motion for judgment notwithstanding the verdict, the reviewing court employs the same test used for a directed verdict. McInturff v. ONG Transmission Co., 1970 OK 169, ¶ 9, 475 P.2d 160, 162. The question of whether the motion for judgment notwithstanding the verdict should have been sustained depends upon whether a motion for a directed verdict, made at the close of all of the evidence, should have been granted. A trial court must consider as true all of the evidence favorable to the party against whom the motion is directed, AIL here, together with all inferences that reasonably may be drawn therefrom, and must disregard all conflicting evidence favorable to the movant. Downing v. First Bank in Claremore, 1988 OK 67, 756 P.2d 1227.

119 The underlying issues concern the trial court's rulings on evidence, the sufficiency of the evidence to support the verdict, the trial court's instructions to the jury, the verdict itself, and the award of attorney fees and costs. The appellate court has the plenary, independent and nondeferential authority to reexamine a trial court's legal rulings. Neil Acquisition, L.L.C. v. Wingrod Inv. Corp., 1996 OK 125, 932 P.2d 1100 n. 1.

120 Review of jury verdicts proceeds under the following standard:

In an action at law, a‘jury verdict is con-elusive as to all disputed facts and all conflicting statements, and where there is any competent evidence reasonably tending to support the verdict of the jury, [an appellate court] will not disturb the jury's verdict or the trial court's judgment based thereon. Where such competent evidence exists, and no prejudicial errors are shown in the trial court's instructions to the jury or rulings on legal questions presented during trial, the verdict will not be disturbed on appeal. In an appeal from a case tried and decided by a jury an appellate court's duty is not to weigh the evidence and determine which side produced evidence of greater weight, ie., it is not an appellate court's function to decide where the preponderance of the evidence lies-that job in our system of justice has been reposed in the jury. In a jury-tried case, it is the jury that acts as the exclusive arbiter of the credibility of the witnesses. Finally, the sufficiency of the evidence to sustain a judgment in an action of legal cognizance is determined by an appellate court in light of the evidence tending to support it, together with every reasonable inference deducible therefrom, rejecting all evidence adduced by the adverse party which conflicts with it.

Florafax Int'l., Inc. v. GTE Mkt. Res., Inc., 1997 OK 7, ¶ 3, 933 P.2d 282, 287.

T21 The tests on review of instructions given or refused are whether there is a probability that the jurors were misled and thereby reached a different conclusion than they would have reached but for the questioned instruction, or there was excluded from consideration a proper issue of the case. Woodall v. Chandler Material Co., 1986 OK 4, ¶ 18, 716 P.2d 652, 654 (different conclusion); VanWart v. Cook, 1976 OK CIV APP 39, ¶ 9, 557 P.2d 1161, 1164 (different result or exclusion of proper issue). .

A judgment will not be disturbed on appeal by allegedly erroneous instructions where as a whole they fairly present the law applicable to the issues raised by the pleadings and the evidence. Smith v. United States Gypsum Co., Okla., 612 P.2d 251 (1980); Bentley v. Hardin, Okla.[App.], 577 P.2d 471 (1978).

Kimery v. Public Serv. Co. of Okla., 1980 OK 187, ¶ 19, 622 P.2d 1066, 1072.

$22 When the appeal raises an issue of the reasonableness of any attorney fees awarded by the trial court, then the standard of review is whether there has been an abuse of discretion by the trial judge. The appellant must show that the trial court made a clearly erroneous conclusion and judgment, against reason and evidence, before such an award may be reversed. Green Bay Packaging, Inc. v. Preferred Packaging, Inc., 1996 OK 121, 932 P.2d 1091; Broadwater v. Courtney, 1991 OK 39, 809 P.2d 1310; Abel v. Tisdale, 1980 OK 161, 619 P.2d 608; State ex rel. Burk v. Oklahoma City, 1979 OK 115, 598 P.2d 659; In re Estate of Jack Lee Fields, 1998 OK CIV APP 129, 964 P.2d 955.

ANALYSIS AND REVIEW

Judgment N.O.V.

AIlL's motion for judgment N.O.V. was directed to the key elements of Peter's action, the merits of the insurance contracts, to her bad faith claims, and to the verdicts rendered by the jury on those claims.

124 This Court must find that there is an entire absence of proof on a material issue before reversing the decision to deny AIL's motion for judgment N.O.V. Only evidence favorable to the non-moving party may be considered. First Nat. Bank in Durant v. Honey Creek Entm't. Corp., 2002 OK 11, ¶¶ 8, 15, 54 P.3d 100; Franklin v. Toal, 2000 OK 79, ¶ 13, 19 P.3d 834, 837.

125 With the above in mind, the various elements required to sustain AIL's motion for judgment N.O.V. are examined in subsequent paragraphs.

1. The Contract

126 The evidence, before this Court on review, shows Deason did receive completed insurance policies reflecting life and accident insurance contracts in force and initial premfums paid. This means that, at least, the burden of proving non-payment of the premiums shifted to AIL. New York Life Ins. Co. v. Holroyd, 1987 OK 811, T6, 68 P.2d 529, 580; see In re Hughes, 1954 OK 220, T 6, 273 P.2d 450, 454. Deason's death qualified her for payment of the life insurance and for the $40,000.00 accidental death benefit. AIL concedes that if the premiums were paid then contracts of insurance would be in force. Because AIL's evidence of nonpayment of the premiums must be disregarded at this stage of the analysis, the trial court properly denied its motion for judgment N.O.V. as to the contract claim.

2. Bad Faith

127 The bad faith tort was recognized in Christian v. Am. Home Assurance Co., 1977 OK 141, ¶¶ 25-26, 577 P.2d 899, 904-05. There the Court adopted the rule that an insurer has an implied duty to deal fairly and act in good faith with its insured and that the violation of this duty gives rise to an action in tort for which consequential damages and, in a proper case, punitive damages may be awarded. Tort lability may only be imposed where there is a clear showing that the insurer unreasonably, and in bad faith, withholds payment of its insured claim.

128 The essence of the tort is the unreasonableness of the insurer's actions. When there is conflicting evidence from which different inferences may be drawn regarding the reasonableness of an insurer's conduct, then what is reasonable is always a question to be determined by the trier of fact by a consideration of the cireumstances in each case. Newport v. USAA, 2000 OK 59, ¶¶ 10-11, 11 P.3d 190, 195-96; McCorkle v. Great Atlantic Insurance Co., 1981 OK 128, ¶ 21, 637 P.2d 583, 587; Alsobrook v. Nat'l. Travelers Life Ins. Co., 1992 OK CIV APP 168, ¶ 9, 852 P.2d 768, 770.

€ 29 Thus, the question, presented here for purposes of the judgment N.O.V. review, is whether Peters' evidence demonstrated ATL's unreasonableness in that AIL failed to deal fairly and act in good faith,. Again, under this standard, Peters' evidence was sufficient to establish the existence of contracts of insurance with initial premiums paid and that the insurance contract proceeds were not paid despite a qualifying event. The amount that the insurance contracts would pay is not in dispute.

130 Next, Peters' evidence included the testimony of an insurance company executive who opined that AIL acted unreasonably by denying the claim. AIL objected to this testimony by a pretrial motion in limine. The witness based his opinion upon several factors: (1) AIL's lack of appropriate written procedures regarding delivery of policies, accounting for premiums received, and guidance for field agents pertaining to receiving premiums and completing applications; and, (2) AIL's departure from industry standards by noting payment of premiums on applications regardless of whether the premiums were actually paid.

T 31 The first question is whether the testimony should have been admitted. The second question, assuming the testimony is admissible, is whether the testimony is probative on the issue of bad faith.

132 AIU's first objection argued that the witness would be giving an opinion on the credibility of AIL's witnesses. This did not occur. AIL next objected to the witness' testimony about whether the policies were in force, but that fact was established by other evidence, including All's cross-examination of Peters' original attorney.

33 AIL also challenged the testimony on the grounds of the witness' credibility and qualifications. The credibility of the witness was for the jury to resolve. The witness was qualified by Peters to testify regarding company procedures and industry standards. Last, AIL maintained that his testimony was unnecessary and prejudicial. The inner workings and procedures of an insurance company, or lack thereof, are not matters generally known to the average person. All's assertion concerning prejudice when viewed in toto relates to the issue of whether the policies were in force.

134 Questions concerning the qualifications of expert witnesses and the admissibility of expert testimony are matters generally within the discretion of the trial court and will not be reversed unless an abuse of discretion is clearly made to appear. Hall v. Globe Life and Accident Ins. Co., 1998 OK CIV APP 161, ¶ 7, 968 P.2d 1263, 1266. None of the objections herein were upon grounds sufficient to deny the testimony.

$85 The next question is whether the testimony is probative of the bad faith claim. The testimony focused upon, and was critical of, AIL's procedures or lack of procedures which led it to deliver policies of insurance to Deason. The substance of the testimony may be restated as: AIL was negligent in regard to its internal procedures. This negligence led to the issuance and delivery of insurance policies to Deason. When AIL recognized its error it should have paid the policy proceeds notwithstanding the error, and its failure to do so was unreasonable behavior.

186 In short, AIL's failure to pay the claim had nothing to do with the claim itself, the cause or event (Deason's death by accident) giving rise to the claim, insurable interest, amount of the claim, or breach of policy conditions. Moreover, no evidence was presented tending to show that AIL delayed payment, tried to extort some unfair advantage or result by withholding payment, or even just ignored the claim. The problem with Peters' position is simply that AIU's internal negligence in the management of its affairs was not directed in an intentional, malicious, or even reckless manner against Deason, as the insured, or Peters, as the beneficiary.

137 Here, the question of law for the trial court to determine was whether the jury could find, from the evidence presented, that AIL's conduct amounted to bad faith. City Nat. Bank and Trust Co. v. Jackson Nat'l. Life Ins., 1990 OK CIV APP 89, 118, 804 P.2d 463, 468-69. There, the Court ruled:

We therefore hold that before the issue of insurer's alleged bad faith may be submitted to the jury, the Trial Court must first determine, under the facts of the particular case and as a matter of law, whether insurer's conduct may be reasonably perceived as tortuous. If the Trial Court so determines, the legal gate to submission to the jury of the issue of insurer's alleged bad faith conduct is open. However, until the facts, when construed most favorably against the insurer, have established what might be reasonably perceived as tortious conduct on the part of the insurer, the legal gate to submission of the issue to the jury remains closed. As elsewhere noted with regard to the tort of intentional infliction of emotional distress, 'It is for the court to determine whether on the evidence [insurer's tortuous conduct] can be found; it is for the jury to determine whether, on the evidence, it has in fact existed." (Citations omitted.)

138 This Court holds that the evidence here of AIU's internal negligence is not probative of the issue of bad faith. Bad faith and negligence are not synonymous. See Myers v. Lashley, 2002 OK 14, ¶ 22, 44 P.3d 553, 568. This leaves, as Peters' evidence, the mere fact that the policy proceeds were not paid after AIL informed her and her lawyer that the original premiums were unpaid.

39 In Christian, the Court stated that the "essence of the cause of action is bad faith." In McCorkle, 1981 OK 128 at ¶ 21, 637 P.2d at 587, the Court described the tort as based on "the insurer's unreasonable, bad-faith conduct" including the unjustified withholding of payment. Thus, in Christian the Court reasoned that "in every insurance contract there is an implied covenant of good faith and fair dealing." Christian, 1977 OK 141 at ¶ 25, 577 P.2d at 904-05. There, elements of wilfulness, malice, and oppression entered into the cireumstances. The acts of the insurer were directed specifically toward the insured in an effort to avoid responsibility and conceal facts.

¶ 40 Under the Christian line of authority, the insurer's refusal to pay or delay in payment of insurance alone does not establish the tort liability. The tort of bad faith does not foreclose the insurer's right to deny a claim, resist payment, or litigate any claim to which the insurer has a legitimate defense. Buzzard v. Farmers Ins. Co., 1991 OK 127, ¶ 13, 824 P.2d 1105, 1109. The Court in Manis v. Hartford Fire Ins. Co., 1984 OK 25, 681 P.2d 760, held that bad faith does not arise when there is a legitimate dispute and reiterated that the essence of the intentional tort of bad faith is the insurer's unreasonable bad faith conduct. The decisive question is whether the insurer had a "good faith belief, at the time its performance was requested, that it had justifiable reason for withholding payment under the policy." Buzzard, 1991 OK 127 at ¶ 14, 824 P.2d at 1109.

{41 Here, the distinction comes about because there is a difference between unreasonable conduct toward Peters in the form of insurance contract nonpayment and AIL's internal negligence resulting in its potential liability on the contract.

T42 In the former, the duty is to act in good faith and fairly when handling claims of insureds and beneficiaries. The duty is expressed in the form of an implied covenant that arises from the unique nature of the insurance contract and the special relationship between insurer and insured. Rodgers v. Tecumseh Bank, 1988 OK 36, ¶¶ 14-16, 756 P.2d 1223, 1226.

€ 43 The legal effect of the internal negli-genee leading to AIl's issuance of the policies is to cause the burden to prove nonpayment of the original premium to shift to the insurance company. New York Life Ins. Co., 1937 OK 311 at ¶ 6, 68 P.2d at 530. In the context of review of a decision to deny a motion for judgment N.O.V., the delivery of the policies by AIL showing payment of the premium means that this Court cannot find that there is an entire absence of proof on the material question of whether the premium was paid.

T44 However, the question of whether the premium was paid is only the beginning point in the bad faith cause of action. There, the inquiry also looks to the reasonableness of the conduct of the insurer in the matter of handling the claim. Here, Peters' evidence shows that AIL promptly investigated the claim and denied it for nonpayment of premiums. Whether the original premiums were in fact paid was a matter in dispute. The dispute was resolved against AIL by the jury after it had presented its defense in good faith for its asserted nonpayment which it had an unqualified right to do.

145 This Court finds that there was here an absence of proof concerning Peters' claim of bad faith. The trial court should have declined to submit the claim to the jury according to the process outlined in City National Bank and Trust Co. v. Jackson National Life Ins. Therefore, AIL's motion for judgment N.O.V. should have been sustained thereby also eliminating the punitive damages award in favor of Peters.

Jury Instructions Pertaining to Breach of Contract

T 46 The trial court's jury instructions included O.U.J.L-CIV 23.3, form of contracts as oral or written, 0.U.J.I.-CIV 28.8, requirement of consideration, and, O.U.J.L-CIV 23.22, performance of conditions precedent. AIL asserts that these instructions were inaccurate and ambiguous.

147 O.U.J.L-CIV 28.3 employs the term "oral contracts" and here there was no contention that an oral contract was involved. However, when viewed as a whole, the instructions did advise the jury that the issue before it was the existence of a written contract consisting of the disputed insurance policies.

[48 0.U.J.L.-CIV 28.8, as given, instructed the jury that a promise will be enforced only if consideration is present. The trial court then instructed that if the jury finds "that Reba Deason paid the premium" then it should find that the element of consideration is satisfied. AIL argues that this is confusing because the issue is whether the "initial" premium was paid. Moreover, evidence was elicited at trial showing that attempts were made to tender premium installments after Deason's death.

49 AIL's substitute instruction specifically instructs the jury about the initial policy premiums. However, again the statement of the case instruction leaves no doubt that the issue at the heart of the case is payment of the initial premiums.

1 50 0.U.J.I.-CIV 28.22, as given, instructed the jury about what it could consider to determine Deason had paid the insurance premium as a condition precedent to AIU's duty to perform its side of the contract. AIL's argument is that the instruction permitted the jury to decide whether payment of the premium was a condition precedent when it was undisputed that if the premtums were not paid then there would be no insurance in force.

151 The Notes on use of the instruction state:

This Instruction should be used when there is a jury question concerning a condition precedent to a party's performance. If the question is whether the condition did in fact occur, the court should give the first paragraph along with a charging instruction with respect to that factual question. The second paragraph is intended for cases where the jury is called upon to determine whether a term in a contract is a condition precedent to a party's performance.

152 Thus, AIL is correct insofar as the use of the second paragraph of the Instruction, because the payment of the initial premiums was clearly a condition precedent to AIU's obligation to perform under the policies of insurance. However, the question here is whether this error requires this Court to set aside the judgment.

153 A judgment will not be reversed by reason of error which does not affect the substantial rights of the party. 12 0.9.2001, § 78. Here, the instruction did not exelude the issue of the need to find a payment of the initial premiums. The statement of the case emphasized this issue for decision. Last, as discussed above, the jury can conclude from the evidence and the shifting of the burden of proof resulting in AIU's failure to establish nonpayment, that the initial premiums were paid. Thus, AIL has failed to show here how or even that the outcome has been affected by inclusion of the second paragraph of the instruction.

154 This Court finds no reversible error based upon the jury instructions.

The Verdict Forms

155 The jury returned two verdict forms. One of the forms was for breach of contract with damages of $500,000.10. The other was for bad faith and assessed damages as $44,060.00. The sum of $44,060.00 clearly is the sum of the amount due from the combined amount of the two policies.

T56 Peters would have this Court ignore the two verdicts and treat the jury's decision as a unit, thus assessing damages for breach of contract and bad faith,. AIL argues that the verdicts are fatally flawed, that the breach of contract damages clearly are not $500,000.10 under any view of the evidence, and that the verdicts cannot be corrected. AIL's suggested alternative is to order a remittitur of the breach of contract award to $44,060.00 and to deny recovery for bad faith.

157 The more recent decisions of the Oklahoma Supreme Court characterize the bad faith/breach of contract action as a single cause of action with component elements and multiple potential bases for damages. Taylor v. State Farm, 1999 OK 44, ¶ 9, 981 P.2d 1253, 1257-58. Therefore, in light of these decisions and of the fact that this Court has ruled herein that only the breach of contract action may be and will be affirmed, the correct resolution of this matter is to reduce the judgment in favor of Peters to the sum of $44,060.00. This sum represents the total due on the two contracts of insurance, exelu-sive of the third contract which AIL has already paid.

Costs

158 As prevailing party, Peters is entitled to recover costs. 12 0.98.2001, § 928; 36 00.98.2001, § 3629(B). The prevailing party is the one who has judgment rendered at the conclusion of the action. Oklahoma Oil & Gas Exploration Drilling Program 1983-A v. W.M.A. Corp., 1994 OK CIV APP 11, ¶ 14, 877 P.2d 605, 611. However, the scope of what may be recovered as costs is limited by statute. 12 0.S.2001, § 942; Ashby v. Harris, 1996 OK 70, ¶ 7, 918 P.2d 744, 747.

T59 Peters asked for costs of $8,969.37. Peters submitted an affidavit itemizing costs in categories of court costs, deposition expenses, copies and copying of papers for trial, and travel and lodging in connection with depositions of out-of-state witnesses.

160 After the close of the hearing on costs and attorney fees, the trial court took the matter under advisement. Subsequently the trial court awarded costs of $7,965.12 as "statutory costs." The components of that sum were not listed and the sources of the deductions from Peters' claim also were not listed. However, Peters' costs included $1,004.25 as travel and lodging expenses associated with deposing witnesses. This expense is not allowed as costs. Ashby, 1996 OK 70 at ¶ 9, 918 P.2d at 747. Deduction of that sum from the total claimed by Peters results in the amount awarded by the trial court. This Court concludes that the trial court deducted the claimed travel expenses and further finds that the deduction is proper.

€61 AIL's appeal asserts that the trial court erroneously included photocopy expense, travel expenses related to deposing out-of-state witnesses, and six depositions not used at trial, so that the correct costs to award amounts to $4,871.14. AIL does not state here how it calculated that sum. However, it clearly appears, as stated above, that the trial court did deduct the travel expenses.

T62 The cost of photocopies or papers "necessarily" used at trial is included as recoverable costs. 12 0.8.2001, § 942(4). The authorized charge is either the amount authorized by law or ten cents per page. Here, AIL has failed to show where, if at all, the trial court erroneously added amounts or calculated costs for photocopies.

163 Peters' claim includes materials from the State Insurance Commissioner, including invoices charging sums authorized by law for copies of documents on file in that office. Peters' invoices also show payments for copies of exhibits. AIL has not demonstrated that the trial court committed error by including the costs claimed for necessary papers.

T 64 The cost of depositions is included in Section 942, unless the trial court finds that the deposition was neither reasonable nor necessary. 12 0.8.2001, § 942(6). The per page cost of transcribing the depositions is not in controversy here.

T65 The trial court made no finding that any of the six challenged depositions were unnecessary. However, this Court notes that AIL's objection to fees and costs raised that issue. The appellate court does not make first instance determination of disputed factual issues. Bivins v. State ex rel. Okla. Mem. Hosp., 1996 OK 5, 119, 917 P.2d 456, 464. Therefore, the case must be remanded for a determination of whether taking of these six depositions was necessary and reasonable.

Prejudgment Interest

1 66 AIL concedes that prejudgment interest is proper as to the policy proceeds amount of $44,060.00. That sum is the amount remaining as a consequence of this Court's decision and, therefore, the remaining prejudgment issues are moot.

Attorney Fees

167 As prevailing party, Peters is entitled to recover a reasonable attorney fee. 36 0.9.2001, § 3629(B). The issue here is whether the fee awarded was reasonable.

168 Because this Court has made disposition of issues different from that of the trial court, a redetermination of reasonable attorney fees must be made by the trial court on remand. The criteria for calculation of fees are set out in Burk. In order to calculate a just, equitable, and fair fee, including the allowable expenses, the trial court must first compute, on the record, the lodestar fee.

T69 Then, pursuant to Burk, the trial court may consider additional factors, as applicable, to arrive at the final fee and allowed expenses, that the trial court deems just, equitable, and reasonable. This process decides whether the lodestar fee will be increased or enhanced. Enhancement is tied, by definition, to the court's award of attorney's fees as an upward adjustment of the calculated lodestar figure. Oklahoma Bar Assoc. v. Weeks, 1998 OK 83, ¶ 21, 969 P.2d 347, 358. The final calculation of the compensatory fee must bear some relationship to the amount in controversy. Arkoma Gas Co. v. Otis Eng'g. Corp., 1993 OK 27, 849 P.2d 892; Southwestern Bell Tel. Co. v. Parker Pest Control, Inc., 1987 OK 16, 737 P.2d 1186.

170 Where a lawsuit consists of related issues or claims, a plaintiff who has won substantial relief should not have his attorney's fee reduced simply because the court did not adopt each contention raised. But where the plaintiff achieved only limited success, the district court should award only that amount of fees that is reasonable in relation to the results obtained. See Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983).

$71 This Court recognizes that a lodestar fee may be unreasonably high or unreasonably low. Southwestern Bell, 1987 OK 16 at ¶¶ 10-12, 737 P.2d at 1188; Burk, 1979 OK 115 at ¶ 7, 598 P.2d at 660-61. The time and labor spent by the attorney in performing services for which compensation is sought is an important factor to be considered in setting a reasonable fee. However, the time element must be considered in connection with other factors. Fees cannot fairly be awarded on the basis of time alone. Southwestern Bell, 1987 OK 16 at ¶ 14, 737 P.2d at 1188-89; Burk, 1979 OK 115 at ¶ 7, 598 P.2d at 660-61; RJB Gas Co. v. Colorado Interstate Gas Co., 1989 OK CIV APP 100, 813 P.2d 1, 13-14, where the Court reasoned as follows:

Much of counsel's time will be devoted generally to the litigation as a whole, making it difficult dividing the hours expended on a claim-by-claim basis. Such a lawsuit cannot be viewed as a series of discreet claims. Instead the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation. Where a plaintiff has obtained excellent results, his attorney should recover a fully-compensatory fee. Normally, this will encompass all hours reasonably expended on the litigation, and indeed in some cases of exceptional success, an enhanced award may be justified.

T 72 On remand the trial court shall determine the proper amount of the attorney fee award in light of these standards. The final calculation, and the supporting findings, shall also be set forth in the judgment.

SUMMARY

T 73 The burden of proof on the question of payment of the original premiums shifted to AIL because it issued policies of insurance which indicated such payment. The jury's verdict on that point is conclusive. Judgment N.O.V. is not available to AIL because there is evidence supporting the verdict due to the issuance of the policies. The trial court's jury instructions on the contract issues do not contain reversible error.

T 74 The trial court judgment based upon the bad faith claim must be reversed, also eliminating punitive damages, because there is no evidence on which the trial court could conclude that AIL's conduct could reasonably be perceived to be tortious. AIL's internal negligence resulting in issuance of the insurance policies is distinguishable from the sort of conduct condemned as a breach of the covenants of good faith and fair dealing in handling of claims.

T75 There is a single cause of action. Here, the bad faith component has been eliminated leaving only the damages following from breach of the insurance contracts. These damages amount to the face amount of the two policies under the evidence. Therefore, the judgment in favor of plaintiff is modified to the sum of $44,060.00.

T76 As prevailing party, Peters is entitled to costs and attorney fees. The costs claimed were properly reduced by the trial court to eliminate travel expenses related to taking of depositions. However, the trial court did not address AIL's claim that several depositions, not used at trial, were unnee-essary and unreasonable. The trial court must make the initial determination on this point, and, with that exception, the trial court's assessment of costs is affirmed. In light of the disposition of the issues set out herein, the trial court's award of attorney fees must be remanded for redetermination.

T 77 Therefore, the trial court judgment is modified and affirmed in part, reversed in part, and remanded for further proceedings consistent with this Opinion.

T78 MODIFIED AND AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

GOODMAN, J., concurs, and COLBERT, P.J., concurs in part and dissents in part.

      . He testified at trial but did not participate as trial counsel.

      . The time lapse between the application date, August 12, 1996, and the purported effective date, November 14, 1996, is a period in excess of 90 days.

      . New York Life Ins. Co. specifically limited its holding to the question of burden shifting and did not address whether delivery of the policy coupled with acknowledgment of premiums payment conclusively established the insurance contract. New York Life Ins. Co., 1937 OK 311 at ¶ 6, 68 P.2d at 530.

      . It is unnecessary to discuss AIL's objection to the testimony from Peters' original attorney and from the insurance executive presented as experts. Both testified that coverage was in place. The content of policy documents, the fact of delivery of the policy documents to Deason, and the occurrence of a qualifying event, death and the undisputed fact of policy nonpayment were all before the jury.

      . The evidence established that this witness had taught insurance agents on how to take, handle, and process insurance applications and had written procedures concerning these matters.

      . This Court observes that evidence in this case was given showing that special training was given to AIL's personnel. Moreover, in some instances insurance company representatives and agents must be tested and licensed.

      . Peters argues here that AIL concocted its "mistake" theory in an effort to cover its failure to pay and to create a legitimate basis for its failure to pay. No evidence exists to support a claim of "cover up.'" Peters' position infers, from the documentation, payment of the original premiums, but neither Peters nor any other witness or document could independently establish payment of the original premiums and also AIL could not establish they were not paid.

      . Peters originally processed the insurance through the funeral home responsible for her mother's funeral. The funeral home was told by AIL that the policies were not in force. On December 13, 1996, demand was made by Peters' original counsel by express mail. On December 14, 1996, AIL responded by letter explaining its position regarding nonpayment of the original premiums, the issuance of a substitute policy, and its payment under the substitute policy.

      . This conclusion renders unnecessary consideration of errors relating to jury instructions on bad faith and the claim for punitive damages, a claim dependent upon bad faith for its basis.

      . EKE Builders, Inc. v. Quail Bluff Associates, 1985 OK CIV APP 46, ¶ 21, 714 P.2d 604, 608-09, suggests that two causes of action are presented but such suggestion is clearly contrary to the later pronouncements of the Supreme Court.

      . AIL objected to the deposition of Penny Reese. Peters' summary of costs listed that deposition, along with two others not included in AIL's objection for a total of $2,321.80. A back-up invoice shows that the Reese deposition cost $564.90. AIL objected to the depositions of Larry Genesser, Katheryn Brown, Randall Mull, Cynthia Saucedo, and Gary Chartier. Peters' summary of costs included these depositions, along with one for a Linda Alleman and not the subject of AIL's objection, for a total of $2,421.00. The Alleman deposition was invoiced at $859.00. Elimination of the AIL amounts, results in court costs of $426.08, papers for trial of $625.60, and depositions of $3,775.15, for a total of $4,496.13.

      . AIL argued before the trial court that the papers from the Insurance Commissioner consisting of the financial records of AIL were not used at trial. District Court record p. 1593 at 1602-03. However, the parties reached a stipulation during trial, before the punitive damages issue was submitted to the jury, which eliminated the necessity of the documents.

      . District Court record, p. 1593 at 1602-03.

      . AIL Brief at 29.

      . The Arkoma Gas case demonstrated that the criterion serves as a check against an unfair result from a simple mathematical calculation. Southwestern Bell used the criterion to review whether a case was "overworked."


source: Caselaw Access Project

author: BAY MITCHELL, Presiding Judge.

license: Public Domain

text:
    2003 OK CIV APP 78
    WASHINGTON MUTUAL BANK FA, successor by merger to Bank United, Plaintiff/Appellee, v. FARHAT ENTERPRISES, INC., an Oklahoma corporation and Mumtaz H. Abbasi, individually, and Amna Paryani, Defendants/Appellants.
    No. 97,364.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Aug. 22, 2003.

      Mitchell D. Blackburn, Conner & Winters, P.C., Oklahoma City, OK, for Plaintiff/Appel-lee.
    Jon Epstein, Susanna G. Voegeli, Hall, Es-till, Hardwick, Gable, Golden & Nelson, P.C., Oklahoma City, OK, for Defendants/Appellants.
   Opinion by

BAY MITCHELL, Presiding Judge.

{1 Plaintiff/Appellee Washington Mutual Bank FA ("WMB"), successor by merger to Bank United, loaned $1,265,000 to Defendant/Appellant Farhat Enterprises, Inc. ("Farhat") in April 2000, for the purchase of two convenience stores. As part of the transaction, the parties executed a note, mortgage, and security agreement with power of sale. Defendants/Appellants Mumtaz H. Abbasi and Amna Paryani personally guaranteed payment of the debt. After Appellants defaulted on the note and guarantees, WMB purchased the property for $540,000 pursuant to the terms of the power of sale.

T2 On June 7, 2001, WMB filed a petition seeking a deficiency judgment against Far-hat alleging it defaulted on its promissory note, and against Abbasi and Paryani alleging they defaulted on their guarantees to pay the debt. On June 11, 2001, the petition and summonses arrived by certified mail, return receipt requested, at Paryani's accounting firm in Irving, Texas. WMB did not restrict delivery to the addressees as required by law. Paryani and Abbasi do not reside at Paryani's accounting firm, and it is neither Farhat's registered office nor its principal place of business. At the time of the June delivery, Paryani was not at her office but in Pakistan, where she remained throughout the summer. The receptionist/secretary at Paryant's office, who is not a Farhat employee, signed each of the three return receipts. Counsel for WMB mailed courtesy copies of the petition and summonses to Appellants' attorney in Dallas, Texas.

T3 After the July 2, 2001, answer deadline passed without Appellants having filed a response, the trial court entered default judgment against Appellants on July 13, 2001, in the amount of $821,262.32 plus interest. Appellants were not aware of the action against them until sometime after the trial court entered the default judgment.

T4 On August 6, 2001, Appellants' first Oklahoma counsel entered an appearance and simultaneously filed a "Motion to Set Aside Judgment and Request for Time to Plead or Answer." In this one-sentence motion, filed without supporting brief, Appellants requested the trial court set aside the default judgment pursuant to 12 Okla. Stat. 2001 § 1081.1 and grant them twenty days to plead or answer. In their motion to set aside, Appellants did not allege defective service of process or lack of personal jurisdiction, nor did they assert any defenses to the action, not even a general denial, nor advance any counter-claims against WMB.

15 At a September 14, 2001 hearing on the motion, at which the parties appeared through their respective attorneys, Appellants' counsel stated that although he personally had neither spoken to nor had any contact with either Paryani or Abbasi, Appellants' Dallas counsel had informed him they were out of the country on an emergency basis due to family problems, unable to assist counsel, and that this was the reason they had failed to respond to the petition. Appellants' counsel maintained that his lack of personal knowledge as to Paryani's and Abbasi's whereabouts prevented him from including such information in the motion to set aside judgment. He further argued while vacating the default judgment and allowing Appellants their day in court would not result in serious injustice to WMB, leaving the $821,262.82 award in place would mean certain financial ruin for Appellants. The trial court declined to vacate the default judgment nonetheless, concluding Appellants had failed to show sufficient cause to disturb it.

T6 On October 3, 2001, Appellants filed a motion for new trial under 12 O.S. § 651(1), (8), and (9), in which they directly alleged for the first time the default judgment was void due to improper service and lack of personal jurisdiction. Appellants further stated Par-yani had returned from Pakistan and all Appellants were ready to defend the lawsuit and assert valid defenses thereto. In response, WMB argued that through the entry of appearance by Appellants' counsel, their motion to set aside judgment, and Appellants' appearance (via their attorney) at the September 14th hearing on that motion, Appellants had made a general appearance and thus waived any purported defects in service. On January 17, 2002, after a hearing and a supplemental briefing cycle, the trial court denied Appellants' motion for new trial, This appeal of the trial court's denial of Appellants' motions to set aside judgment and for new trial ensued.

17 We review for abuse of discretion a trial court's refusal to grant both a motion to vacate default judgment and a motion for new trial. Ferguson Enterprises, Inc. v. H. Webb Enterprises, Inc., 2000 OK 78, ¶ 5, 13 P.3d 480, 482; Mooney v. Mooney, 2003 OK 51, ¶ 50, 70 P.3d 872, 881. "What constitutes abuse of discretion on the part of the trial court in refusing to set aside a default judgment is dependent upon the facts and cireumstances surrounding each individual case." Wade v. Padberg, 1955 OK 116, ¶ 7, 283 P.2d 201, 203, citing Shuler v. Viger, 1924 OK 647, 229 P. 280. Because it is the policy of the law to afford every party to an action a fair opportunity to present his side of a cause, a much stronger showing of abuse of discretion must be made where a judgment has been set aside than where it has been refused, as is the case at bar. Midkiff v. Luckey, 1966 OK 49, ¶¶ 7-9, 412 P.2d 175, 177 (affirming trial court's order vacating default judgment where defendant misplaced or lost the summons and was unaware of judgment until contacted by plaintiff's attorney one month later). The trial court should always exercise its discretion so as to promote the ends of justice.. Id., ¶ 6, 412 P.2d at 176, citing State Life Ins. Co. v. Liddell, 1936 OK 662, 61 P.2d 1075; see also Ferguson, ¶ 5, 13 P.3d at 482. In addition, the trial court must consider "whether substantial hardship would result from granting or refusing to grant the motion to vacate." Ferguson, ¶ 5, 13 P.3d at 482.

¶ 8 In Bailey v. Campbell, 1991 OK 67, 862 P.2d 461, the Supreme Court held:

Notice is a jurisdictional requirement and a fundamental element of due process. Due process requires adequate notice, a realistic opportunity to appear and the right to participate in a meaningful manner. The right to be heard is of little value unless a party is apprised of rights which may be affected by judicial process. Due process is violated by the mere act of exercising judicial power upon process not reasonably calculated to apprise interested parties of the pendency of an action. Lack of notice constitutes a judicial infirmity.

Id., ¶ 16, 862 P.2d at 469; see also Nelson v. Nelson, 1998 OK 10, ¶ 21, 954 P.2d 1219, 1227. "Because litigants are entitled to a fair day in court, policy encourages actions being tried on the merits. Default judgments are not favored." Nelson, ¶ 23, 954 P.2d at 1228; see also Girkin v. Cook, 1973 OK 118, ¶ 17, 518 P.2d 45, 49; Singleton v. LePak, 1967 OK 37, ¶ 10, 425 P.2d 974, 977; Cox v. Williams, 1954 OK 269, ¶ 6, 275 P.2d 248, 249.

19 We must first consider whether WMB's attempted service on the three Appellants was defective. "Service by mail shall be accomplished by mailing a copy of the summons and petition by certified mail, return receipt requested and delivery restricted to the addressee." 12 Okla. Stat.2001 § 2004(C)(2)(b) (emphasis added). "[Thhe Oklahoma Pleading Code requires substantial compliance in order for the trial court to have jurisdiction over the person of the defendant." See Graff ¶ 20, 814 P.2d at 495. Accordingly, service by mail shall not be the basis for the entry of a default judgment unless the record contains a return receipt showing acceptance or refusal by the defendant 12 Okla Stat.2001 § 2004(C)(@2)(c) (emphasis added).

10 In the case of a domestic corporation such as Farhat, acceptance "by any officer or by any employee of the registered office or principal place of business who is authorized to or who regularly receives certified mail" constitutes acceptance by the party addressed. 12 Okla. Stat.2001 § 2004(C)(2)(c). Although "[a] return receipt signed at such registered office or principal place of business shall be presumed to have been signed by an employee authorized to receive certified mail," if a defendant demonstrates to the trial court that the person signed the return receipt was actually unauthorized, the trial court shall set aside any default judgment against it. Id.

T11 E is undisputed that Paryani's accounting firm was not Farhat's principal place of business. The secretary/receptionist was not a Farhat employee, and thus not authorized to receive certified mail on behalf of Farhat. Given that neither Paryani nor Abbasi used Paryani's accounting firm as their "dwelling house or usual place of abode," WMB's foeus on the fact that the receptionist/secretary was "an adult" is misplaced. 12 Okla. Stat.2001 § 2004(C)(2)(c); see Groff, ¶ 12, 814 P.2d at 498 (holding "(al defendant's regular place of business is not the same as his dwelling house or usual place of residence" and that service of process by personal delivery to the receptionist of defendant's place of business was wholly insufficient to confer jurisdiction over the defendant). Moreover, WMB failed to restrict delivery to the addressees as expressly required by § 2004(C)(2)(b), and neither Parya-ni nor Abbasi were present at the office to sign for the delivery personally. Service of process was thus defective as to each of the three Appellants. As a result, the trial court did not have personal jurisdiction over any of the three Appellants when it entered the default judgment against them.

112 The question thus becomes whether the entry of appearance by Appellants' counsel, Appellants' motion to set aside, and their attorney's attendance at the September 14, 2001 hearing on that motion, operated to waive lack of personal jurisdiction as a defense and validate the default judgment against them. It is well settled that assertion of nonjurisdictional as well as jurisdictional grounds in a motion to vacate judgment constitutes a general appearance and a waiver of defects in the judgment relating to jurisdiction over the person of defendant. La Bellman v. Gleason & Sanders, 1966 OK 183, ¶ 9, 418 P.2d 949, 953; Gaghagen v. Lehmer, 1935 OK 66, ¶ 4, 40 P.2d 1046, 1047. "Notwithstanding this fact, it is the duty of the court to investigate and ascertain whether or not the proceedings resulting in the judgment and the judgment itself are so irregular that they would be held to be fatal upon appeal direct from the judgment, and that in case injustice has been done, and it is clear the judgment is inequita-bie, it should be vacated, to the end that the controversy may be heard upon the merits in the interest of justice" Griffin v. Jones, 1914 OK 615, 147 P. 1024, 1028.

$13 Appellants' counsel entered an appearance on the day he filed the motion to set aside the entry of default judgment against Appellants, who had recently retained him. Appellants' counsel's appearance put the trial court on notice that the Appellants had not had legal representation in the case prior to its entry of default judgment against them. Rule 49 of the Rules of the Seventh Judicial District provides a party shall file "an entry of appearance by counsel no later than the first filing of any pleading or other paper in the case by that counsel or party.... Filing an entry of appearance as required by this Rule, does not waive any defenses enumerated in Title 12 0.8. Section 2012(B)," which defenses include lack of personal jurisdiction and insufficiency of service of process.

14 At the hearing on Appellants' motion to set aside judgment, which occurred three days after the terrorist attacks of September 11, 2001, Appellants' counsel set forth the grounds for the motion to set aside by informing the trial court he had not had personal contact with any of the Appellants and that his understanding from their Dallas attorney was that Paryani and Abbasi were in Pakistan due to a family emergency. Maintaining his lack of personal knowledge as to Paryant's and Abbasi's whereabouts prevented him from including such information in the motion to set aside judgment, Appellants' counsel asserted their absence from the country was the reason for their failure to respond to WMB's petition. He argued further that vacating the default judgment would not result in serious injustice to WMB, but leaving the $821,262.82 default judgment in place would mean certain financial ruin for Appellants. Counsel for Appellants did not assert any nonjurisdictional defenses to the action at the hearing, nor did he advance any counter-claims against WMB.

115 We find the remarks of Appellants' counsel at the hearing, however inartful, were sufficient to put the trial court and WMB on notice that Appellants did not have timely notice of the suit, there were possible problems with service of process, and the trial court's in personam jurisdiction was in question. In any event, examination of the judgment roll reveals that the signature is illegible on each of the three certified return receipts. In addition, while it is noted in the trial court's docket that attempted service was made by certified mail, return receipt requested, there is nothing in the record to indicate delivery was restricted to the addressees as required by law, and it is undisputed WMB did not comply fully with § 2004(C)(2)(b) in that respect.

116 "If the record does not reflect that personal service has been made on the defendant, the court lacks in personam jurisdiction over the defendant and any default judgment rendered thereon is void and subject to vacation." Ferguson, ¶ 11, 13 P.3d at 488. "A void judgment, decree or order may be vacated at any time, on motion of a party, or any person affected thereby." 12 Okla. Stat.2001 § 1088. This provision applies when the invalidity appears on the face of the judgment roll, ie, when the record affirmatively shows that the trial court lacked personal jurisdiction. Town of Watonga v. Crane Co., 1941 OK 39, ¶ 4, 114 P.2d 941, 942. The judgment roll or record includes the petition, process, and return, as well as pleadings, reports, verdicts, orders, and judgments. Elliott v. City of Guthrie, 1986 OK 59, ¶ 7 n. 8, 725 P.2d 861, 863 n. 8. Where the return of process reveals the appellant was not properly served, the trial court lacks in personam jurisdiction and the judgment is void on its face. Groff v. Kelly, 1991 OK 71, ¶ 21, 814 P.2d 489, 495-96. "When the judgment [roll] fails to disclose that a party was brought into court by process that is constitutionally due, the judgment rendered in the case is void on the face of the record proper. The judgment stands subject to attack, direct or collateral, at any time." Bailey, ¶ 16, 862 P.2d at 470.

{17 As the Supreme Court reasoned in Griffin, § 5, 147 P. 1027-28:

It has been said that a judgment which is void for want of service is no judgment at all; and to hold that after a judgment in form only has been entered against a party, which in fact and in law is no judgment, by his appearance in an effort to relieve himself from such judgment which is apparently valid, but which in fact is void, is carrying the rule of estoppel and waiver to the extreme. Not only have defendants never had their day in court, but they have had no opportunity to have it, and without any fault on their part. If they have done nothing to forfeit their constitutional rights of a hearing, the right to appear and defend, other than to waive the jurisdiction of the court over their person in an effort to secure their legal rights in an orderly manmer, and if irregularities appear upon the face of the record affecting their substantial rights, what valid reason can be assigned why they should not now be allowed their day in court? We are told that, although this judgment was void prior to the defendants' appearance, yet by appearing and on account of their indiseretion in challenging the judgment as inequitable, as well as on the grounds of jurisdiction of the court, they have waived all irregularities and errors, and are now es-topped from raising any questions, other than jurisdictional; that it matters not how unjust and inequitable the judgment may be notwithstanding the trial court may have grossly misconceived its authority and duty, and by reason whereof prejudicial error is obvious, yet the court is not warranted in granting relief. We are unwilling to subscribe to this doctrine.

{18 In Haskell v. Cutler, 1940 OK 485, 108 P.2d 146, the Supreme Court held:

It is the policy of the law to afford every party to an action a fair opportunity to present his side of a ecause. Therefore, the approach to a consideration of the vacating of a default judgment must necessarily differ from the vacation of a judgment where the parties have had at least one opportunity to present the case on its merits.

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

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

Id., 228 P. at 981.

While it is true that diligence of litigants in attending to their matters pending in the courts is of importance and while it is a significant function of the courts that the litigation before them be determined and disposed of as rapidly as possible, it is also important that all litigants be given a reasonable opportunity to have their day in court. And this is particularly true when the litigant has acted with dispatch after the granting of a default.

Singleton, 110, 425 P.2d at 977-978. It is undisputed Appellants acted with dispatch to timely file their motion to set aside judgment. Through no fault of their own, given WMB's defective service, Appellants did not have an opportunity to present their case on the merits.

119 WMB argues that Appellants' motion to vacate nonetheless operated to waive the defenses of lack of in personam jurisdiction and failure of process through its request for an additional twenty days in which to plead and answer. Title 12 Okla. Stat.2001 § 2012(A) provides that by seeking to extend the time to respond by twenty days, a defendant waives multiple defenses, including lack of jurisdiction over the person and insufficiency of service of process. In making this argument, WMB ignores the fact that § 2012 is a rule of pre-trial procedure. Because the trial court had already entered default judgment against them, Appellants request for additional time to plead and answer was procedurally incorrect. At that point in the litigation, only post-trial motions were available to them.

120 We are mindful of the disfavor in which default judgments are held and the fact that a trial court always should exercise its discretion so as to promote the ends of justice. Moreover, the abuse of discretion threshold is significantly lower when, as here, a trial court has refused to set aside a default judgment. Appellants had no notice of the suit against them at the time the trial court entered default judgment and were denied their day in court. It is evident under the facts presented that the grant of Appellants' motion to set aside judgment would not cause substantial delay or harm to Appellees, but its denial would work a serious injustice to Appellants, particularly given the size of the judgment. We hold the trial court abused its discretion in denying Appellants' motion to set aside judgment. Because we make our decision based on Appellants' initial post-trial motion, we need not consider whether the trial court also erred in denying Appellants' motion for new trial. The cause is reversed and remanded and the trial court directed to set aside default judgment against Appellants and allow them sufficient time in which to plead and answer.

121 REVERSED AND REMANDED.

HANSEN, J., and JONES, J., concur.

      . The trial court's docket notes that the signature is illegible on each of the three certified return receipts and does not indicate WMB restricted delivery to the addressees.

      . Appellants' Dallas counsel, Dean A. Mason, represented Appellants in negotiating the underlying transaction with WMB.

      . After later filing a motion for new trial, Stephen A. Zrenda, Jr. moved to withdraw as Appellants' counsel of record on November 1, 2001, which motion the trial court granted on November 5, 2001. Current counsel for Appellants entered an appearance shortly thereafter, and filed Appellants' reply brief in support of their motion for new trial.

      . The full text of the motion is as follows:
      Comes now Stephen A. Zrenda, Jr. and requests this Court set aside the Judgment entered in this case on July 13, 2001, consistent with 12 O.S. § 1031.1B, and requests twenty (20) days to plead or answer the Petition filed by the Plaintiff herein for the reason that Stephen A Zrenda, Jr. has recently been retained to represent the Defendants Farhat Enterprises, Inc., Mumtaz H. Abbasi and Amna Paryani.

      . To their motion for new trial, Appellants attached a copy of the Second Amended Petition that they, along with over fifty other plaintiffs, filed against WMB and other defendants on September 25, 2001, in Dallas County, Texas. The petition alleges defendants engaged in a series of fraudulent schemes involving gas station and convenience store real estate transactions under the Small Business Administration Guaranteed Loan Program. The petition charges defendants with fraudulent misrepresentation and concealment, statutory fraud, negligent misrepresentation, negligence, unjust enrichment, self-dealing, breach of fiduciary duty, civil conspiracy, and gross negligence.


author: VOIGT, Justice.

text:
    2003 WY 129
    In the Matter of the ESTATE OF Edward Dale GEORGE, deceased. Nellie Lue George; Virginia May Horton-Ferguson; Beverly Ann Straight; and Tammie Jo George, Appellants (Respondents), v. Karen Allen, Personal Representative of the Estate of Edward Dale George, deceased, Appellee (Petitioner).
    No. 03-16.
    Supreme Court of Wyoming.
    Oct. 15, 2003.

      Representing Appellants: James P. Cast-berg, Sheridan, Wyoming.
    Representing Appellee: William D. Omo-hundro, Buffalo, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   VOIGT, Justice.

[T1] In 2001, the appellee, Karen Allen (Allen), replaced Beverly Ann Straight (Straight) as personal representative of the Estate of Edward Dale George (the decedent). Shortly thereafter, Allen petitioned the district court to sell the decedent's undivided 1/10th interest in real property located in Sheridan County. The appellants objected to Allen's petition. Following a hearing, the district court authorized Allen to sell the decedent's interest in the subject property. The appellants appeal from that decision. They argue that the district court should have reached the opposite conclusion based on their factual assertions and that the district court lacked jurisdiction. We affirm.

ISSUES

[12] The appellants present the following issues for our review:

1. Did the district court commit an error in granting appellee's petition to sell real property over the objection of appellants, and prior to appellees collecting all of the assets of the estate and prior to a determination of the unpaid debts and fees due the personal representative and attorney for the estate?

2. Did the district court lack jurisdiction in this matter in that the decedent was a resident of Sheridan County, Wyoming, at the time of his death, died in Sheridan County, Wyoming, and all of the real estate, or interest therein, owned by the decedent at the time of his death, was located in Sheridan County, Wyoming?

FACTS

[13] Edward Dale George died intestate April 17, 2000. On May 9, 2000, Straight, the decedent's sister, filed a verified Petition to Administer Estate in the District Court for Johnson County of the Fourth Judicial District. In that petition, Straight identified the decedent's potential heirs as his six sisters (including the appellants), two brothers, and three nieces, and alleged that the decedent died in Johnson County and was a resident of Johnson County at the time of his death. Based on the information contained in the petition, the district court (sitting in probate) found as follows: (a) the decedent died in Johnson County and owned real and personal property in Johnson County and Sheridan County at the time of his death; (b) the district court had jurisdiction in the matter; and (c) the decedent's "resident status" was such that venue was proper in Johnson County. The district court appointed Straight to act as personal representative of the decedent's estate, issued her letters of administration, and ordered that she post a $25,000.00 bond.

[14] Subsequent filings and pleadings contain conflicting information regarding where the decedent resided at the time of his death. A death certificate filed July 26, 2000, states that the decedent died in Sheridan County, and was a resident of Sheridan County at the time of his death. In October 2000, Straight, as personal representative (at that time, counsel for the appellee represented Straight), petitioned the district court to sell some of the decedent's real and personal property not at issue in the instant appeal. Straight averred in that petition that the decedent was a resident of Sheridan County at the time of his death. In February 2001, Straight filed a verified report detailing the sale of this property, wherein she stated that the decedent was a resident of Johnson County at the time of his death. In the resulting order approving these transactions, the district court again found that the decedent was a resident of Johnson County at the time of his death.

[15] In September 2001, Karen Allen, a potential creditor of the decedent's estate, petitioned the district court to remove Straight as the estate's personal representative. The petition stated that the decedent died in Sheridan County and was a resident of Sheridan County at the time of his death. It further alleged that Straight failed to act in the estate's "best interests" with respect to the estate's assets. Straight did not appear at a hearing set to consider the petition's merits. The district court subsequently removed Straight as the estate's personal representative, and appointed Allen to assume that position, accompanied by letters of administration. On November 5, 2002, Allen petitioned the district court to order Straight to show cause for the alleged misappropriation of estate assets and to order the company that posted Straight's bond to reimburse the estate in an amount required to make the estate "whole." The district court issued Straight an order to appear and show cause.

[16] Allen had previously listed the decedent's undivided 1/10th interest in certain real property located in Sheridan County in an Amendment to Estate Inventory. On November 5, 2002, Allen separately also petitioned the district court to allow her to sell the decedent's undivided 1/10th interest in the subject real property because the "estate currently has insufficient funds to pay costs of administration and the creditors claims that have been accepted" and that it was "in the best interest of this estate and for the benefit of the estate's creditors" that the property be sold. She attached an appraisal to the petition indicating that the value of the decedent's interest in the property was $2,448.00, and that Allien had entered an agreement to sell the decedent's interest for $16,000.00. In an unverified responsive pleading objecting to Allen's petition, the appellants claimed the following:

1. The subject real property is "the family home," and is "sacred and hallowed" property because the decedent's brother's ashes were scattered on the property in 2001;

2. Allen's accounting included assets that Allen stated she could not locate, but the appellants "believe[d]" that the assets could be located with "due diligence";

8. It "may not be necessary" for the estate to sell the decedent's interest in the subject property due to Allen's request that the company that posted Straight's personal representative bond reimburse the estate; and

4. The district court lacked "jurisdiction in this matter" because the decedent was a resident of Sheridan County when he died, his death occurred in Sheridan County, and the subject property is located in Sheridan County.

[17] The district court held a hearing December 17, 2002, on Allen's petition to sell the decedent's interest in the subject property, during which hearing the district court heard testimony from Allen and three other witnesses. Based on that testimony and accompanying evidentiary exhibits, the district court made the following findings in its Order Authorizing Sale of Real Property filed December 24, 2002;

1. At that time, the decedent's estate had at least $21,786.00 "of obligations payable" by the estate, and had $3,508.49 in the estate bank account;

2. Expenses and interest continued to accrue pursuant to these obligations;

3. The decedent's estate needed funds to pay the obligations and selling the decedent's interest in the subject property was in the "best interest of the Estate and its creditors;" and

4. The district court had "jurisdiction in this matter."

Accordingly, the district court authorized Allen to sell the decedent's interest in the property for $16,000.00 pursuant to the referenced agreement. The appellants filed a Notice of Appeal regarding the Order Authorizing Sale of Real Property on December 830, 2002,

DISCUSSION

OrpErR AutuEN to SELL THE Interest in REAL PROPERTY

[T8] The appellants contend that the district court erred in authorizing Allen to sell the decedent's interest in the subject property. They assert that the property has "intrinsic value" to them in that it is the family home and a sibling's ashes were dispersed on the property in accordance with the sibling's final wish. The appellants further argue that the district court's order "fails to take into consideration" that assets which Allen was unable to locate, "if" collected, "may well produce adequate funds" to satisfy the estate's obligations, and "fails to take into consideration" that on January 17, 2008, the district court ordered the company that posted Straight's personal representative bond to pay $25,000.00 to the estate due to Straight's actions as the estate's personal representative.

Wyo. Stat. Ann. § 2-7-612(a) (Lexis Nexis 2008) provides as follows:

Any real or personal property belonging to the decedent except exempt personal property and the homestead may be sold ... by the personal representative for any of the following purposes:
() The payment of debts and charges against the estate;
(i) Any other purpose in the best interests of the estate.

See also Wyo. Stat. Ann. § 2-7-614 (Lexis-Nexis 2008) (whenever "it is for the best interests of the estate, real and personal property of the estate may be sold...."). "At the hearing and upon satisfactory proof the court may order the sale ... of the property described or any part thereof at such price and upon such terms and conditions as the court may authorize." Wyo. Stat. Ann. § 2-7-615 (LexisNexis 2008).

[T10] The use of the verb "may" generally indicates that the authority found in the statute is "to be exercised at the discretion of the court." Hodgins v. State, 1 P.3d 1259, 1261 (Wyo.2000). See generally Nimmo v. State, 607 P.2d 344, 348 (Wyo.1980). We have said that

" 'Tjludicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the cireumstances and without doing so arbitrarily or capriciously! ... We must ask ourselves whether the district court could reasonably conclude as it did and whether any facet of its ruling was arbitrary or capricious."

Young v. HAC, LLC, 2001 WY 50, ¶ 6, 24 P.3d 1142, 1144 (Wyo.2001) (quoting Carlton v. Carlton, 997 P.2d 1028, 1031 (Wyo.2000) and Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998)).

[111] We note at the outset that the appellants have provided neither a transcript of the hearing on the referenced petition pursuant to W.R.A.P. 3.02 nor a statement of the evidence pursuant to W.R.A.P. 3.03, and it does not appear that they requested special findings of fact and conclusions of law under W.R.C.P. 52(a).

It is the appellant[s'] burden to bring a complete record to this Court. Erhart v. Evans, 2001 WY 79, 118, 30 P.3d 542, 547 (Wyo.2001); Wood v. Wood, 865 P.2d 616, 617 (Wyo.1998). Where a proper record is not provided, an appeal may be dismissed or review may be limited to those issues not requiring inspection of the record. Stadifeld v. Stadifeld, 920 P.2d 662, 664 (Wyo.1996) (quoting Matter of Manning's Estate, 646 P.2d 175, 176 (Wyo.1982)); Wood, 865 P.2d at 618.

Smith v. Smith, 2003 WY 87, ¶ 11, 72 P.3d 1158, 1161 (Wyo.2008).

Without a sufficient record, we must

"accept the 'trial court's findings as being the only basis for deciding the issues which pertain to the evidence." Willowbrook Ranch, Inc. v. Nugget Exploration, Inc., 896 P.2d 769, 771 (Wyo.1995). 'In the absence of anything to refute them, we will sustain the trial court's findings, and we assume that the evidence presented was sufficient to support those findings 896 P.2d at 771-71."

Williams v. Dietz, 999 P.2d 642, 645 (Wyo.2000) (quoting Weiss v. Pedersen, 933 P.2d 495, 498 (Wyo.1997), abrogated on other grounds by White v. Allen, 2008 WY 39, 65 P.3d 395 (Wyo.2003)).

[T12] The appellants have not directed us to any evidence or pertinent legal authority that supports their argument regarding the subject property's claimed "intrinsic" value. They did not cite to the record in advancing this argument and did not provide us a record of the hearing on Allen's petition to sell the decedent's interest in the subject property. The bald assertions contained in the appellants' responsive pleading to Allen's petition and appellate brief are not sufficient. "This Court cannot rely on the allegations and averments contained within pleadings and briefs as being accurate statements of facts." Small v. Convenience Plus Partners, Ltd., 6 P.3d 1254, 1255 (Wyo.2000).

[$18] The appellants' contention that the district court failed to consider that Allen was unable to locate some of the decedent's personal property is similarly deficient. We cannot evaluate whether the district court erred in failing to consider this issue without a proper record, and the appellants do not cite to the record or pertinent legal authority in advancing this argument. The appellants do cite some relevant information from the pleadings in another portion of their appellate brief. Allen stated in a pleading that she "has never been able to locate or account for" certain personal property that Straight had previously listed in an estate inventory. The appellants claimed in their responsive pleading to Allen's petition that with "due diligence" some of these assets could be located; they stated in their appellate brief merely that "if" some or all of these assets can be located, the assets "may well" produce sufficient funds to satisfy the estate's obligations. We reiterate that we cannot rely on allegations and averments contained in the pleadings or briefs as accurate statements of fact. Even so, this argument is literally speculative, and also speculative based on the state of the record before us.

[¥14] Without citing to any pertinent legal authority, the appellants assert that the district court failed to consider the $25,000.00 it ordered a bonding company to pay the estate due to Straight's conduct while acting as the estate's personal representative. In that order, filed January 17, 2003, the district court found that Straight had "depleted the assets of this estate by disregarding her duties as personal representative" and caused the estate to ineur $26,580.86 in expenditures, interest, missing personal property, attorneys fees and costs, and personal representative fees and costs. We cannot evaluate the merits of this argument, or what, if any, consideration the district court gave it, without a proper record. We further note that the district court's order as to the bonding company was filed well after the December 17, 2002, hearing on Allen's petition, the district court's order pursuant to that hearing filed December 24, 2002, and the appellants' notice of appeal from that order filed December 30, 2002. Indeed, in the appellants' response to Allen's petition, they merely state that "[dlepending upon how much" is recovered from the bonding company, it "may not be necessary" to sell the decedent's interest in the subject property. It does not appear that the appellants ever requested that the district court reconsider its decigion.

[115] The appellants' contentions on this issue all pertain to the evidence. In the absence of a sufficient record, we accept the district court's findings as being the only basis for deciding the issues pertaining to the evidence. The district court's findings in the instant case included that the estate had at least $21,786.00 in obligations payable by the estate in addition to aceruing expenses and interest, and had $3,503.49 in the estate bank account. The district court concluded that at that time, the estate needed funds to satisfy the referenced obligations and selling the decedent's interest in the subject property was in the "best interest" of the estate and its creditors. The appellants have not directed us to any facts appropriate for our consideration that refute the district court's findings. Accordingly, we sustain those findings and assume that the evidence presented was sufficient to support the findings. We conclude that the district court therefore did not abuse its discretion in authorizing Allen to sell the decedent's interest in the subject property based on the existing cireum-stances. The appellants have not cited any pertinent legal authority that would compel a contrary conclusion.

JURISDICTION

[416] The appellants argue that the district court's Order Authorizing Sale of Real Property was "void ab initio" because the district court (sitting in probate) for Johnson County lacked "jurisdiction." In their responsive pleading to Allen's petition to sell the decedent's interest in the subject property, the appellants advanced the following argument for the first time in the district court:

It appears from the death certificate of Edward Dale George that he was a resident of Sheridan County, Wyoming, at the time of his death; that his death occurred in Sheridan County, Wyoming:; and that the real estate the Petitioner seeks to sell is located in Sheridan County, Wyoming, therefore this Court lacks jurisdiction in this matter.

(Emphasis in original.) 'On appeal, the appellants assert, apparently for the first time, that the district court for Johnson County "was not the proper venue and therefore lacked jurisdiction in this matter." (Emphasis added.) They contend that we should reverse the district court's order and remand with instructions to transfer the venue of this matter to the district court (sitting in probate) for Sheridan County.

[117] The district court conelud-ed after the December 17, 2002, hearing that it had "jurisdiction in this matter." Subject matter jurisdiction is " 'the power to hear and determine cases of the general class to which the proceedings in question belong.' " Lacey v. Lacey, 925 P.2d 237, 238 (Wyo.1996) (quoting Fuller v. State, 568 P.2d 900, 903 (Wyo.1977)). Wyo. Stat. Ann. § 22-101 (LexisNexis 2003) provides, in pertinent part:

The district courts of the state have exclusive original jurisdiction of all matters relating to the probate and contest of wills and testaments, the granting of letters testamentary and of administration, and the settlement and distribution of decedents' estates. The court granting the letters has exclusive jurisdiction of all matters touching the settlement and distribution of the estates for which letters have been granted. The jurisdiction over subject matter of the district court sitting in probate, sometimes referred to in this Title 2 as the "probate court", is coextensive with the jurisdiction over subject matter of the district court in any civil action.

Allen's petition to sell the decedent's interest in the subject property clearly touched upon the settlement of an estate for which the district court had previously granted letters of administration.

[118] On appeal, the appellants argue that the district court lacked jurisdiction solely because "venue" was improper in the district court (sitting in probate) for Johnson County. This argument seems to confuse the concepts of jurisdiction and venue. Wyo. Stat. Ann. § 2-2-102 (LexisNexis 2008) provides, in pertinent part, as follows:

Venue generally.
(a) Wills shall be proved and letters testamentary or of administration granted:
(i) In the county of which the decedent was a resident at the time of his death, regardless of where he may have died.]

The following excerpt, although not specific to probate jurisdiction, generally illustrates the distinction between the two concepts:

The district courts in this state are courts of general jurisdiction. Murrell v. Stock Growers' National Bank of Cheyenne, 74 F.2d 827, 881 (10th Cir.1934). See Urbach v. Urbach, 52 Wyo. 207, 78 P.2d 953 (1987). As such, they have inherent subject matter jurisdiction over any and all cases in which jurisdiction is not specifically vested in some court of limited jurisdiction. Wyoming Constitution, Art. 5, § 10; Murrell, 74 F.2d at 881.... Once jurisdiction is acquired, the district court has the power to hear and determine the matter and to render a binding judgment. McGuire v. McGuire, 608 P.2d 1278 (Wyo.1980); State v. District Court of Eighth Judicial District in and for Natrona County, 33 Wyo. 281, 288 P. 545 (1925). We adopt the analysis found in Sil-Flo Corporation v. Bowen, 98 Ariz. 77, 402 P.2d 22 (1965), and recognize that the power to enter a binding judgment is equally present among all district courts in the state. In this context, venue is never a consideration. See Myuskovich [v. State ex rel. Osborn, 59 Wyo. 406], 14[1] P.2d [540] at 548 [ (1948) ]. It follows that the authority to enter summary judgment or any other order in favor of or against Hall properly is vested in any, or all, of the district courts in the state. That authority does not reside only in the court in which proper venue is found. In view of this widely vested authority, Hall's contention that the District Court of the Sixth Judicial District in and for Campbell County was without jurisdiction is without merit.
Since jurisdiction, with its inherent power to render judgment, is present despite any impropriety with respect to venue, it is unnecessary for us to consider whether the District Court of the Eighth Judicial District in and for Converse County properly followed § 27-12-6011. Subject matter jurisdiction would be present whether it did or did not. It is proper, however to remind our district courts and counsel that the remedy with respect to questions of venue is a request to change venue to the proper court. Unless specifically mandated by statute, the absence of proper venue does not result in a dismissal, a reversal, or a new trial. See Sil-Flo, 402 P.2d at 27. Furthermore, we expect the aggrieved party to make a timely objection, or to request a change. Otherwise, venue will be deemed proper. Such a result is justified because venue normally is founded upon convenience to the parties to the litigation. It does not reach the judicial power.

Matter of Larsen, 770 P.2d 1089, 1092 (Wyo.1989). See also Hronek v. St. Joseph's Children's Home, 866 P.2d 1305, 1309-10 (Wyo.1994).

[119] The filings and pleadings in this case contain conflicting information as to where the decedent resided at the time of his death and Straight was the source of some of this conflicting information. Interestingly, despite the conflicting information, the only formal findings the district court made in its prior orders appear to have been that the decedent was a resident of Johnson County at the time of his death. Because the appellants have not provided us a proper record, we do not know what, if any, evidence was presented at the December 17, 2002, hearing in order to evaluate this issue to the extent the appellants now claim it relates specifically to "venue."

[120] We do know that, based on the state of the record on appeal, the appellants did not raise this issue in the district court precisely as one based on improper "venue." We generally will not review issues raised for the first time on appeal exeept for jurisdictional issues and those so fundamental in nature that they must be considered. In re Pohl, 980 P.2d 816, 819 (Wyo.1999). Venue "does not reach the judicial power." Matter of Larsen, 770 P.2d at 1092. Without a record of the hearing, the above-quoted argument from the appellants' responsive pleading to Allen's petition is the only item indicating the manner in which the appellants raised the issue in the district court. That argument challenges the district court's "jurisdiction," not "venue," and the appellants did not request that the district court transfer "venue" to another court. The resulting finding by the district court was that it had "jurisdiction." Notably, on appeal (although the appellants appear to confuse the relationship between the two concepts) the appellants specifically discuss "venue" accompanied by citations to Wyo. Stat. Ann. § 2-2-102 (probate court venue) and specifically discuss "jurisdiction" accompanied by citations to Wyo. Stat. Ann. § 2-2-101 (probate court jurisdiction). In the district court, the appellants only discussed the district court's "jurisdiction" without citing either statute.

[T21] Nevertheless, and notwithstanding other potential issues as to whether the appellants waived consideration of, or should be estopped from raising, this issue in terms of "venue," the appellants' remedy on appeal in the instant case is not a reversal of the district court's order authorizing Allen to sell the decedent's interest in the subject property. Matter of Larsen, 770 P.2d at 1092. It is worth noting that the district judge who decided the merits of Allen's petition is the sitting district judge in the District Court for Sheridan County of the Fourth Judicial District, which venue the appellants claim to be the proper venue for the instant case.

[122] Allen asks that we sanction the appellants for lack of cogent argument or citation to pertinent authority. The appellants, although minimally, did generally cite to the record and to some pertinent legal authority, and we conclude that this is not one of those rare circumstances where sance-tions pursuant to W.R.A.P. 10.05 are appropriate.

[123] Affirmed.

      . Allen later alleged that Straight used estate assets for inappropriate or unidentified expenditures, misappropriated estate assets, and failed to account for estate assets.

      . The appellants also stated that Allen had failed to account for three horses in Allen's possession "which she may or may not have sold." Allen later supplemented her accounting with information regarding the three horses, as well as other horses. Allen's supplementation seems to have resolved this issue.

      . The exhibits received at the hearing indicate that these three witnesses testified regarding horses they purchased during Straight's tenure as the estate's personal representative. This testimony does not appear to be at issue in the instant appeal.

      . See, for example, In re Potter's Estate, 396 P.2d 438, 445 (Wyo.1964).

      . Wyo. Stat. Ann. § 2-7-103 (LexisNexis 2003) states that the personal representative "shall take possession of all of the estate of the decedent, real and personal," and Wyo. Stat. Ann. § 2-7-402 (LexisNexis 2003) provides that all of the decedent's "property is subject to the possession of the personal representative and to the control of the court for the purposes of administration...."