Maximum Availability Limited v. Computer Business Solutions, Inc.

Filing 56

OPINION AND ORDER by Chief Judge Claire V Eagan ; setting/resetting deadline(s)/hearing(s): If plaintiff elects to take issue with garnishees amended answer, the matter is referred to the Honorable T. Lane Wilson for evidentiary hearing on July 12, 2011 and for report and recommendation ( Miscellaneous Deadline set for 6/8/2011); denying 45 Motion for Summary Judgment; granting 46 Motion to Amend; denying 48 Motion for Summary Judgment (djh, Dpty Clk)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
MAXIMUM AVAILABILITY LIMITED,
a New Zealand corporation,
Plaintiff,
v.
COMPUTER BUSINESS SOLUTIONS, INC.,
an Oklahoma corporation,
Defendant,
and
RANDY LEE DOWNING,
Garnishee.

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Case No. 09-CV-416-CVE-PJC

OPINION AND ORDER
Now before the Court are Plaintiff’s Motion for Summary Judgment Against the Garnishee
and Brief in Support (Dkt. # 45), garnishee Randy Lee Downing’s Opposed Motion for Leave to
Amend Garnishee’s Answer and Brief in Support (Dkt. # 46), and Garnishee’s Motion for Summary
Judgment Against Judgment Creditor and Brief in Support (Dkt. # 48).
I.
Randy Lee Downing (Downing) was the chairman, president, and owner of defendant
Computer Business Solutions, Inc. (CBSI), a Subchapter S Corporation.1 Dkt. # 45-1, at 2-3, 14.

1

Under Subchapter S of the Internal Revenue Code, certain closely-held corporations may
elect to be accorded special tax treatment under which income, deductions, and losses are
passed through to shareholders. 47B C.J.S. Internal Revenue § 374 (2011). The income of
a Subchapter S corporation is treated as income of the shareholder(s). In re Kitson, 341 F.
App’x 234, 237 (7th Cir. 2009). “Unlike limited partnerships, all S Corporation shareholders
enjoy limited liability regardless of their level of participation in the business.” Thompson
v. United States, 87 Fed. Cl. 728, 731 n.4 (Fed. Cl. 2009).

Beginning in March 1999, Downing decided to restructure the owner’s distributions he received
from CBSI as loans. Id. at 3, 14-15. To memorialize the loans, Downing attempted to create a
promissory note from an Office Depot template.2 Id. at 4. He received a total of $249,692.85
allegedly as loans, which he never repaid to CBSI. Id. at 6, 27. In 2007, plaintiff Maximum
Availability Limited (Maximum) and CBSI entered into a written agreement that allowed CBSI to
re-sell Maximum’s *noMAX software to end users in the United States. However, in March 2008,
a dispute arose relating to the agreement between Maximum and CBSI. On July 1, 2008, certain
assets of CBSI were purchased by Genisys Group Solutions, LLC, a Tennessee limited liability
company (Genisys). Dkt. # 48-3, at 1. On or about July 8, 2008, CBSI was given notice of
submission of the dispute between it and Maximum to arbitration in New Zealand. Dkt. # 2, at 2.
On October 21, 2008, CBSI received notice of the appointment of an arbitrator, Dkt. # 2, at
2, and was provided a reasonable opportunity to present its case to the arbitrator. On or about April
15, 2009, the arbitrator determined all issues submitted to him and awarded Maximum a total award
of $962,859.46. The arbitrator provided a signed copy of the award to CBSI on April 21, 2009.
Maximum filed its complaint (Dkt. # 2) in this Court on June 29, 2009. CBSI was served on July
7, 2009 by personal delivery of a copy of the summons and complaint. Dkt. # 9. CBSI failed to
answer or otherwise defend in this action, and Maximum subsequently filed a motion for entry of

2

The alleged promissory note relied on by Maximum is a promise by Borrower Randy
Downing and Borrower Randy Downing to pay to the order of Randy Downing the sum of
Dollars ($ Corporate Minutes), together with interest thereon at the rate of CM % per annum
on the unpaid balance. The note was signed in the presence of Witness Computer Business
Solutions and Witness Kathy Downing. See Dkt. # 45-1, at 15. Presumably, counsel for
Maximum is aware of this anomaly and is instead relying on the debt evidenced by the
corporate minutes of March 1, 1999 (Dkt. # 45-1, at 14) and the Randy Downing Loan
Register (Dkt. # 45-1, at 17-27). Ironically, when Downing moved for summary judgment,
he did not raise the validity of the promissory note itself.
2

default by the Court Clerk. Dkt. # 11. The Court Clerk entered default against CBSI on August 25,
2009. Dkt. # 12. The Court entered default judgment in favor of Maximum against CBSI on
September 29, 2009. Dkt. # 20. Maximum was awarded $962,859.46, plus post-judgment interest.
On July 13, 2010, CBSI, Genisys, Downing, Kathy Downing, Jennifer Downing, and Luke
Miller entered into a “Settlement Agreement and Mutual Release [Settlement Agreement],”
apparently in connection with a dispute that arose in connection with Genisys’s prior purchase of
certain CBSI assets and the subsequent relationship between the parties. Dkt. ## 48, at 3; 48-2, at
1; 51, at 2. Downing claims that the Settlement Agreement discharged all liabilities arising between
the parties. Dkt. # 48, at 3. He also claims that although CBSI is still recognized as a corporation
by the State of Oklahoma, it has had “no activity at all” since July 2008. Dkt. # 45-1, at 2.
On January 6, 2011, Maximum filed a garnishment affidavit, stating that it believed Downing
“is indebted to or has property within his possession or under his control . . . belonging to the
Defendant/Judgment Debtor.” Dkt. # 39, at 1. The Court Clerk issued a garnishment summons to
Downing (Dkt. # 40), and Downing filed an answer stating that he believed that at the time of the
service of the garnishment summons, or upon the date it became effective, he was not indebted to
CBSI for any amount of money, nor did he “have possession or control of any property, money,
goods, chattels, credits, negotiable instruments or effects” belonging to CBSI or in which CBSI had
an interest. Dkt. # 42, at 1. Maximum timely filed its Notice of Election to Take Issue with
Garnishee’s Answer.3 Dkt. # 43.

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Pursuant to OKLA. STAT. tit. 12, § 1177, “[t]he answer of the garnishee shall in all cases be
conclusive of the truth of the facts therein stated, with reference to the garnishee’s liability
to the defendant unless the judgment creditor shall . . . serve upon the garnishee or the
garnishee’s attorney . . . a notice in writing that the judgment creditor elects to take issue
with the garnishee’s answer.”
3

Maximum then moved for summary judgment as to Downing’s liability to CBSI for
$249,692.85, plus accrued interest. Dkt. # 45, at 1. Maximum alleges that Downing admitted in an
asset hearing that CBSI loaned him that amount, which was never repaid. Id. at 3-4. Therefore, it
claims there is no genuine issue of material fact as to his debt, and that it is entitled to summary
judgment as a matter of law. Id. at 7. Following Maximum’s motion for summary judgment,
Downing filed a motion to amend his answer. Dkt. # 46. He claims that defenses exist that were
not included in the original answer, and that amendment is necessary to comply with OKLA. STAT.
tit. 12, § 1173.3, which governs a garnishee’s answer and requires the garnishee to claim any “setoff,
defense, other indebtedness, liability, lien, or claim to the property.” Downing also filed a motion
for summary judgment (Dkt. # 48), claiming that Maximum’s claim against him is barred by OKLA.
STAT. tit. 12, § 1186 and that he had no obligation to CBSI based on the transfer of assets from CBSI
to Genisys. In the alternative, he argues that to the extent any liability exists on his part, he is
entitled to set off that liability in the amount owed to him by CBSI.
II.
Downing moves for leave to amend his answer. Dkt. # 46. OKLA. STAT. tit. 12, § 1173.3
requires that
Within ten (10) days after service of the garnishment, the garnishee shall file its
answer with the court clerk and pay or deliver to the judgment creditor’s attorney or
to the judgment creditor if there is no attorney the indebtedness or property
belonging to or owed to the defendant, together with a copy of the answer which
shall state:
1.

Whether the garnishee was indebted or under any liability to or had in
garnishee’s possession or control, any property belonging to the defendant.
When the garnishee shall be in doubt respecting any such liability or
indebtedness, the garnishee may set forth all of the facts and circumstances
concerning the same, and submit the question to the court;

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2.

If the garnishee shall claim any setoff, defense, other indebtedness, liability,
lien, or claim to the property, the facts and circumstances . . . .

In his original answer pursuant to § 1173.3, Downing stated that “at the time of the service of the
Garnishment Summons, or upon the date it became effective, the Garnishee was not indebted to the
Judgment Debtor for any amount of money nor did the Garnishee have possession or control of any
property, money, goods, chattels, credits, negotiable instruments or effects belonging to the
Judgment Debtor or in which the judgment debtor had an interest.” Dkt. # 42, at 1. Downing did
not claim entitlement to any additional defenses. However, he now seeks leave to amend to include
defenses to Maximum’s claim not originally included in his answer. Dkt. # 46, at 2. Specifically,
he seeks to add the following defenses: that the garnishment action is barred by OKLA. STAT. tit. 12,
§ 1186; that any obligation he had to CBSI was released prior to the time of service of the
garnishment summons; and that he is entitled to set off any amount of liability by funds owed to him
by CBSI. Id. at 2-3.
Rule 15(a) provides that “after a responsive pleading has been served, a party may amend
its pleading “only by leave of court or by written consent of the adverse party,” and that “leave shall
be freely given when justice so requires.” Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th
Cir. 2006); Bradley v. Val-Mejias, 379 F.3d 892, 900 (10th Cir. 2004). “In the absence of any
apparent or declared reason – such as undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice
to the opposing party by virtue of allowance . . . the leave sought should, as the rules require, be
‘freely given.’” Foman v. Davis, 371 U.S. 178, 182 (1962).

The purpose of Rule 15(a) is to

“provide litigants ‘the maximum opportunity for each claim to be decided on its merits rather than
on procedural niceties.’” Minter, 451 F.3d at 1204 (quoting Hardin v. Manitowoc-Forsythe Corp.,
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691 F.2d 449, 456 (10th Cir. 1982)). Leave to amend is a matter committed to the court’s discretion,
but the district court must give a reason for a refusal. Fed. Ins. Co. v. Gates Learjet Corp., 823 F.2d
383, 387 (10th Cir. 1987).
Maximum opposes Downing’s motion to amend on the ground that such an amendment
would violate § 1173.3, and that amendment would cause it prejudice because its motion for
summary judgment was based on Downing’s original answer. A court may deny leave to amend if
the amendment would be futile. Anderson v. Suiters, 499 F.3d 1228, 1238 (10th Cir. 2007). A
proposed amendment is futile if the new claims or defenses would be subject to dismissal for any
reason, including that the amendment would not survive a motion for summary judgment. McNulty
v. Sandoval Cnty., 222 F. App’x 770, 775 (10th Cir. 2007)(unpublished);4 Lind v. Aetna Health,
Inc., 466 F.3d 1195, 1199 (10th Cir. 2006); Bradley, 379 F.3d at 901. A court may also deny leave
to amend “when the party filing the motion has no adequate explanation for the delay.” Minter, 451
F.3d at 1206 (quoting Frank v. U.S. West, Inc., 3 F.3d 1357, 1365-66 (10th Cir. 1993)). “Undue
prejudice” to an opposing party may also justify denial of a motion to amend. Foman, 371 U.S. at
182.
First, Maximum argues that Downing should not be permitted to amend its answer because,
under § 1173.3, he was required to set forth all defenses to the garnishment action within ten days
of service, and that his failure to do so waived any other defenses. Oklahoma courts have not
spoken as to whether compliance with § 1173.3 is subject to amendment. However, typically, “[a]
defendant is required to affirmatively plead ‘any . . . matter constituting an avoidance or affirmative

4

Unpublished decisions are not precedential, but may be cited for their persuasive value. See
Fed. R. App. 32.1; 10th Cir. R. 32.1.
6

defense.’” Peters v. Terminix Int’l, No. 05-CV-0719-CVE-SAJ, 2007 WL 171910, at * 2 (N.D.
Okla. Jan. 18, 2007). But although “[w]here an affirmative defense is not pled, it is waived,” RST
Serv. Mfg., Inc. v. Musselwhite, 628 P.2d 366, 368 (Okla. 1981), waiver of defenses does not
happen immediately. Instead, “[w]hen a party omits an affirmative defense or discovers new
evidence giving rise to a defense . . . the party must move to amend his pleadings under Fed. R. Civ.
P. 15(a) to rely on that defense in a dispositive motion or at trial.” Peters, 2007 WL 171910, at *
2. The Tenth Circuit Court of Appeals has opined that “the best procedure is to plead an affirmative
defense in an answer or amended answer,” and that, in determining whether to permit an amended
answer, courts consider the usual factors of “undue delay, bad faith, dilatory motive, or repeated
failure to cure deficiencies by amendments previously allowed.” Ahmad v. Furlong, 435 F.3d 1196,
1202 (10th Cir. 2006)(internal quotations omitted). However, the Ahmad court determined that
although amendment to the answer is the best practice, constructive amendment could also occur
by raising a previously unraised defense in a motion for summary judgment. Id. And in construing
a different section of the garnishment statute, the Oklahoma Supreme Court has noted that “the
extension of time within which to file pleadings in a garnishment proceeding is a matter properly
within the sound judicial discretion of the trial court.” Underwriters v. Cannon, 538 P.2d 210, 212
(Okla. 1975).
Based on the general practice of leave freely given when justice requires, as well as the
Oklahoma Supreme Court’s recognition of trial court discretion in the garnishment statute deadlines,
the Court will permit amendment of Downing’s answer. Although the proposed defenses were not
in Downing’s initial answer, the failure to include them was not the result of undue delay, and it has
not resulted in undue prejudice to Maximum. Downing’s motion to amend came less than three

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months after its initial answer, and Maximum responded to all of his proposed defenses in both its
reply in support of its motion for summary judgment and its response in opposition to Downing’s
motion for summary judgment. Therefore, no undue delay or prejudice would justify denial of leave
to amend,5 and the Court will exercise its duty to freely grant leave to amend the answer.
III.
Both parties have moved for summary judgment in connection with Downing’s proposed
defenses.6 Summary judgment pursuant to Fed. R. Civ. P. 56 is appropriate where there is no
genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986); Kendall v. Watkins, 998 F.2d 848, 850 (10th Cir. 1993). The plain language of
Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of proof at trial.
Celotex, 477 U.S. at 317. “Summary judgment procedure is properly regarded not as a disfavored

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Nor is Maximum entitled to fees and costs incurred in filing its motion for summary
judgment. Dkt. # 50, at 3.

6

Downing filed a response in opposition to the Maximum’s motion for summary judgment
(Dkt. # 47), as well as his own motion for summary judgment (Dkt. # 48). His response in
opposition to plaintiff’s motion for summary judgment contained no argument; instead, it
stated only that the response incorporated all provisions of Downing’s motion for summary
judgment. Downing’s response fails to comply with LCvR 56.1(c), which sets out the
requirements for a response brief in opposition to a motion for summary judgment.
Although the Court will consider the summary judgment record as a whole in deciding the
cross-motions for summary judgment, Downing is reminded that, in the future, he must
comply with all local rules governing pleadings.
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procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are
designed ‘to secure the just, speedy and inexpensive determination of every action.’” Id. at 327.
“When the moving party has carried its burden under Rule 56(c), its opponent must do more
than simply show that there is some metaphysical doubt as to the material facts . . . . Where the
record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there
is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586-87 (1986) (citations omitted). “The mere existence of a scintilla of evidence in support of the
plaintiff’s position will be insufficient; there must be evidence on which the [trier of fact] could
reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. In essence, the inquiry for the Court
is “whether the evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law.” Id. at 250. In its review,
the Court draws “all justifiable inferences,” id. at 254, and construes the record in the light most
favorable, Garratt v. Walker, 164 F.3d 1249, 1251 (10th Cir. 1998), to the party opposing summary
judgment.
A.
Downing first argues that Maximum’s claim against him fails as a matter of law pursuant to
OKLA. STAT. tit. 12, § 1186, which states that “[n]o judgment shall be rendered upon a liability of
the garnishee arising . . . [b]y reason of his having drawn, accepted, made, endorsed or guaranteed
any negotiable bill, draft, note, or other security.” He argues that Maximum’s garnishment action
is based on a promissory note signed by Downing, and is therefore barred as a matter of law.
Maximum argues that Downing waived any defenses to liability not properly included in his answer.
Dkt. # 51, at 4. As stated, the Court does not find that Downing’s defenses have been waived.

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However, Maximum also argues that § 1186 does not bar its action because a subsequent clause in
that provision states that no judgment shall be rendered upon liability of the garnishee arising “[b]y
reason of any money or other thing owing from him to the defendant, unless before judgment against
the defendant it shall become due absolutely and without depending on any future emergency.”
Maximum argues that § 1186, read as a whole, authorizes its suit because the debt owed by Downing
to CBSI was due and owing at the time the garnishment summons was served. Dkt. # 51, at 8.
Neither party’s § 1186 argument is persuasive. Maximum’s argument that the fourth clause
of the section renders irrelevant the first clause is unfounded. And Downing’s argument assumes,
without explanation, that because Maximum relies on a promissory note as support for Downing’s
debt to CBSI, the garnishment action falls within the first clause of § 1186. However, there is no
promissory note in the summary judgment record payable to the order of CBSI.7 The note relied
upon by the parties states that “for value received, the undersigned [Randy Downing and Randy
Downing] hereby jointly and severally promise to pay to the order of Randy Downing” the sum of
money referenced in accompanying corporate minutes. See n.2, supra. At the asset hearing,
Downing stated that he had structured his owner’s distributions as a loan, and that he drew up the
promissory note to document the transaction. Dkt. # 45-1, at 3. Although the corporate minutes
accompanying the promissory note suggest that the note was in fact intended to create a loan from
CBSI to Randy Downing, id. at 14, that intention is not borne out by the face of the note. The note

7

Section 1186 applies only if the promissory note was a negotiable instrument. Such an
instrument is defined by Oklahoma law to mean “an unconditional promise or order to pay
a fixed amount of money, with or without interest or other charges described in the promise
or order” that: “(1) is payable to bearer or to order at the time it is issued or first comes into
possession of a holder; (2) is payable on demand or at a definite time; and (3) does not state
any other undertaking or instruction by the person promising or ordering payment to do any
act in addition to the payment of money.” OKLA. STAT. tit. 12A, § 3-104(a).
10

is not payable to CBSI, and, therefore, it does not evidence a liability to CBSI. Although the Court
does not exclude the possibility of liability arising by other means, summary judgment based on §
1186 is inappropriate.8
Downing also moves for summary judgment on the ground that he had no obligation to CBSI
because, at the time of service of the garnishment summons, any obligation on his part was not the
property of CBSI. Dkt. # 48, at 6. Downing claims that the promissory note9 was “sold, transferred,
assigned, conveyed, granted and delivered to [Genisys] . . . under the Bill of Sale and Assignment
and Assumption Agreement [Bill of Sale].” Id. He further argues that “[t]hereafter, it was
effectively released . . . in the [Settlement Agreement].” Id. In support, Downing attaches an

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Moreover, even if the note were properly made to order or bearer, there is a genuine issue
of material fact as to whether the note from Downing to CBSI was “payable on demand or
at a definite time.” The only information about the loan in the summary judgment record
comes from Downing’s testimony and the minutes from CBSI board meetings at which the
loan was approved. The minutes, which explain the structure of the loan to Downing, state
that “[t]he period of time will not be set at this time,” but that “[t]he percentage of interest
will be set at the current interest rate plus 1% if not paid in full by March 1, 2009.” Id. at
14. The relevant clauses of the promissory note concerning time for repayment are marked
“not applicable.” Id. at 15. Maximum’s counsel asked Downing, “[s]o reading this
language, the percentage of interest will be set at the current interest rate plus one percent
if not paid in full by March 1st, 2009, to me that implies that the maturity date or the date
that the loan matured would be March 1, 2009. Does that square with your recollection?”
Downing responded “yeah.” Dkt. # 45-1, at 6-7. However, any acknowledgment by
Downing that he owed money to CBSI, and that the term date was March 1, 2009, is
insufficient to overcome ambiguity raised by the underlying documents as to whether the
promissory note, if valid, was “payable on demand or at a definite time.” “On motion for
summary judgment, ambiguities are resolved against the moving party, . . . and an ambiguity
may raise a genuine issue of fact sufficient to make summary judgment inappropriate.”
Deepwater Investments, Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1111 n.9 (10th Cir.
1991).

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As noted, the promissory note relied upon by the parties creates liability on the part of
Downing to himself only. However, the Court will construe the parties’ reference to the
promissory note to refer more broadly to money owed by Downing to CBSI.
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affidavit, which states his belief that he was not indebted to CBSI, as well as the Settlement
Agreement and Bill of Sale. Dkt. ## 48-1, 48-2, 48-3. He claims that, based on these documents,
there is no question that he owed no money to CBSI at the time the garnishment summons was
issued. However, these documents raise genuine issues of material fact. As Maximum argues,
“[t]he Bill of Sale states that Genisys was ‘entitled to purchase certain assets and obligated to
assume certain liabilities’ of CBSI,” but the “assets to be purchased and the liabilities to be assumed
are defined in the Asset Purchase Agreement, not the Bill of Sale.” Dkt. # 51, at 6 (emphasis in
original). The Settlement Agreement also references the Asset Purchase Agreement and other
undefined terms in defining the scope of its release, and Maximum disputes that the promissory note
was included in the Settlement Agreement. Id. at 6-7. In support, Maximum cites two provisions
of the Asset Purchase Agreement as proof that the promissory note was not part of that agreement,
and, therefore, was not included in the Bill of Sale and subsequent Settlement Agreement. Id. at 7.
However, neither party submitted the Asset Purchase Agreement, so it is impossible to resolve on
the summary judgment record the parties’ disagreement as to whether any liability of Downing was
transferred by CBSI to Genisys, or whether such liability was included in the later release of claims
in the Settlement Agreement. Summary judgment is therefore inappropriate.
Finally, Downing includes in his motion for summary judgment an alternative claim that, if
he is found to owe money to CBSI, he is entitled to a set off of $125,000 based on his non-stock
infusion of operating capital to CBSI. Dkt. ## 48, at 7; 48-1, at 3. As noted, Downing is permitted
to amend his answer to add this new defense. However, he is not entitled to summary judgment
regarding the set off. Maximum contests his right to set off, and Downing’s blanket assertion that
he was owed a sum from CBSI does not meet his burden of showing no genuine issue of material

12

fact surrounding this defense. Downing has proffered no documentation of his claim to money owed
to him by CBSI, nor details about how the alleged infusion was structured. Dkt. # 51, at 5. There
is a genuine issue of material fact as to any money owed to Downing by CBSI, as well as to
Downing’s entitlement to a set off defense.
B.
Maximum’s motion for summary judgment is also denied. Maximum argues that there is
no genuine issue of material fact as to Downing’s debt to CBSI because Downing admitted the
existence of the unpaid promissory note at the asset hearing, and that his answer stating that he is
not indebted to CBSI is therefore inaccurate. Dkt. # 45, at 5-6. However, as noted above, there is
a genuine issue of material fact as to Downing’s indebtedness to CBSI. Maximum also argued that
Downing’s defenses not originally pled in the answer were waived, Dkt. # 49, at 2, but the Court has
rejected that argument. Therefore, genuine issues of material fact remain as to the indebtedness of
Downing to CBSI and the availability of certain defenses, and summary judgment is inappropriate.

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IT IS THEREFORE ORDERED that Plaintiff’s Motion for Summary Judgment Against
the Garnishee and Brief in Support (Dkt. # 45) is denied; garnishee’s Opposed Motion for Leave
to Amend Garnishee’s Answer and Brief in Support (Dkt. # 46) is granted; and Garnishee’s Motion
for Summary Judgment Against Judgment Creditor and Brief in Support (Dkt. # 48) is denied.
IT IS FURTHER ORDERED that garnishee shall file his amended answer no later than
seven (7) days from the date of entry of this Opinion and Order.
IT IS FURTHER ORDERED that upon receipt of garnishee’s amended answer, plaintiff
shall have twenty (20) days to serve a notice in writing that it elects to take issue with the
garnishee’s amended answer, pursuant to the procedure outlined in OKLA. STAT. tit. 12, § 1177. If
plaintiff elects to take issue with garnishee’s amended answer, the matter is referred to the
Honorable T. Lane Wilson for evidentiary hearing on July 12, 2011 and for report and
recommendation.
DATED this 1st day of June, 2011.

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