Cornett v. Carr
| Citation | 302 P.3d 769 |
| Decision Date | 23 April 2013 |
| Docket Number | No. 107,506.,107,506. |
| Parties | Robert CORNETT, Appellant, v. Rhonda CARR, Glen Davis and Dena Davis, Appellees. |
| Court | Supreme Court of Oklahoma |
OPINION TEXT STARTS HERE
Held Invalid
¶ 0 Plaintiff sued his former spouse, seeking rescission and damages arising out of an allegedly fraudulent real estate sales agreement. The district court dismissed Plaintiff's lawsuit for failing to issue summons or file a waiver within ninety days of bringing the action as required by Rule 9(a), Rules for District Courts of Oklahoma, 12 O.S.2001 Ch. 2, App. The Court of Civil Appeals, Division I, affirmed. We granted certiorari to review an apparent discord between Rule 9(a) and 12 O.S.Supp.2002 § 2004(I), and find the two provisions are in direct conflict to the extent Rule 9(a) shortens plaintiff's allotted time for service of summons.
Jerry L. Colclazier, Colclazier & Associates, Seminole, OK, for the Plaintiff/Appellant Robert Cornett.
Jack Mattingly Sr., Jack Mattingly, Jr., The Mattingly Law Firm, P.C., Seminole, OK, for the Defendant/Appellee Rhonda Carr.
¶ 1 In January 2006, Robert Cornett brought a lawsuit in the Oklahoma County District Court, challenging the sale of real property ordered to be sold by his ex-spouse, Rhonda Carr, in connection with the parties' divorce proceeding. According to the petition, a divorce judgment entered by the Seminole County District Court directed Carr to sell the subject property at the highest possible price and evenly divide the net proceeds with Cornett. It further suggested Carr entered into a conspiracy with co-defendants, Glen and Dena Davis, to defraud Cornett by providing for an undisclosed payment to Carr of $8,000.00; a sum not included in the written real estate contract. Cornett additionally sought rescission of the allegedly clandestine agreement. On March 4, 2008, the trial court dismissed the original case without prejudice. 1
¶ 2 The matter was refiled on April 30, 2009, in Oklahoma County, Case No. CJ–2009–4065. Following the commencement of the second action, Cornett's attorney neglected to issue summonses. Upon review of the docket, the trial judge recognized this omission. Judge Dixon entered a sua sponte order ninety-six days after filing suit, on August 4, 2009, dismissing the second case without prejudice in accordance with Rule 9(a), Rules for the District Courts, 12 O.S.2001 Ch. 2, App.2
¶ 3 Cornett appealed the order dismissing his lawsuit, arguing Rule 9(a) directly conflicted with the statutory terms of 12 O.S.Supp.2002 § 2004(I). The case was assigned to the Court to the Court of Civil Appeals. On January 7, 2011, COCA affirmed the lower court's dismissal of the proceeding, finding no discord between Rule 9(a) and Section 2004(I). On June 13, 2011, we granted certiorari to review the seemingly incompatible provisions.
¶ 4 Whether a district court rule conflicts with a statute presents a purely legal question analyzed under the de novo standard of review. See Duncan v. Oklahoma Dept. of Corrections, 2004 OK 58, ¶ 3, 95 P.3d 1076, 1078. Thus, our examination of the case consists of a “non-deferential, plenary and independent review of” the lower court's rulings. Id. See also In re Estate of Bell–Levine, 2012 OK 112, ¶ 5, 293 P.3d 964, 966;Martin v. Aramark Services, Inc., 2004 OK 38, ¶ 4, 92 P.3d 96, 97.
¶ 5 Cornett argues that Rule 9(a) directly conflicts with Section 2004(I), to the extent it shortens the time limit for accomplishing service of process under the statute. According to Cornett, if service is accomplished before the expiration of 180 days from the filing of the action, service is always timely under § 2004(I). This, he suggests, is consistent with the fundamental policy which favors disposition of cases on their merits, rather than procedural technicalities. Carr counters these arguments by pointing out that the two provisions deal with “totally separate contingencies.” She maintains that Rule 9(a) controls when summons must be issued, while Section 2004(I) imposes a time restriction on when summons must be served.
¶ 6 At the time Cornett's lawsuit was dismissed by the trial judge, 12 O.S.Supp.2002 § 2004(I) was in effect:
SUMMONS: TIME LIMIT FOR SERVICE. If service of process is not made upon a defendant within one hundred eighty (180) days after the filing of the petition and the plaintiff cannot show good cause why such service was not made within that period, the action may be dismissed as to that defendant without prejudice upon the court's own initiative with notice to the plaintiff or upon motion. The action shall not be dismissed where a summons was served on the defendant within one hundred eighty (180) days after the filing of the petition and a court later holds that the summons or its service was invalid. After a court quashes a summons or its service, a new summons may be served on the defendant within a time specified by the judge. If the new summons is not served within the specified time, the action shall be deemed to have been dismissed without prejudice as to that defendant. This subsection shall not apply with respect to a defendant who has been outside of this state for one hundred eighty (180) days following the filing of the petition.
Subsection (I) does not place any time limitation on a plaintiff other than requiring service within 180 days after commencement of a lawsuit.3 In contrast, Rule 9(a) reads as follows:
In any case in which summons is not issued or waiver filed within ninety (90) days after the filing of the petition, or alias summons is not issued within thirty (30) days after return of the summons not served, the action may be dismissed by the court without notice to the plaintiff.
This court rule adds a restriction not imposed by § 2004.4 To the extent the two conflict, the statute must prevail. State ex rel. Okla. Bd. of Med. Licensure and Supervision v. Pinaroc, 2002 OK 20, ¶ 12, 46 P.3d 114, 119;see also Vannoy v. Earth Biofuels, Inc., 2009 OK CIV APP 22, ¶ 5, 278 P.3d 1052, 1053 ().
¶ 7 An historical examination of Oklahoma's statutory scheme governing service of process reveals that Rule 9 was promulgated in 1961, more than twenty years before adoption of the Pleading Code.5 Prior to the enactment of Rule 9, Oklahoma procedural law placed no specific time restrictions on issuance and service of a summons.6 Hence, the implementation of Rule 9 was designed to foster “judicial economy and [was] designed to ensure the efficient administration of justice and to encourage lawyers to diligently represent their clients” by placing a time limit on issuance of summons to prevent lawsuits from lingering indefinitely. Gugello v. Select Specialty Hosp.–Tulsa, 2006 OK CIV APP 102, ¶ 8, 143 P.3d 519, 522. However, with the Legislature's passage of the Oklahoma Pleading Code, the policy rationale behind Rule 9(a) was superseded by 12 O.S.Supp.1984 § 2004(I).
¶ 8 Nevertheless, the fact remains that Rule 9(a) and § 2004(I) have coexisted side-by-side for years. As such, COCA agreed with Carr that Rule 9 refers to an entirely distinct aspect of service of process than does § 2004(I). Accordingly, COCA held that the two provisions were not at odds. While we agree with COCA that service of summons presupposes the actual issuance of summons, our prior decisions have clearly held that service is always punctual if made within the time allotted by § 2004. Fischer v. Baptist Health Care of Okla., 2000 OK 91, ¶ 6, 14 P.3d 1292, 1293;See also Mott v. Carlson, 1990 OK 10, ¶ 8, 786 P.2d 1247, 1250.
¶ 9 According to the 1984 Committee Comments, 12 O.S.Supp.1984 § 2004(I) was modeled after FRCP Rule 4(j). This Court has routinely relied upon federal case law to assist with interpretation of the corresponding sections of the Oklahoma Pleading Code. See Fanning v. Brown, 2004 OK 7, ¶ 20, n. 9, 85 P.3d 841, 847 (); Graff v. Kelly, 1991 OK 71, ¶ 14, 814 P.2d 489, 493–494 ().
¶ 10 Prior to Congress' overhaul of the FRCP in 1983, Rule 4 contained no express sanction for failing to have a summons issued at the time a complaint was filed. 4A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Richard L. Marcus, Federal Practice and Procedure § 1086 (3d ed. 2012). Consequently, as part of the 1983 changes, Congress added subsection (j) to Rule 4, which provided in relevant part:
If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice ...”
FRCP Rule 4(j) (1983). The version adopted by the Oklahoma Legislature in 1984 was nearly identical to FRCP Rule 4.
¶ 11 In Henderson v. U.S., 517 U.S. 654, 116 S.Ct. 1638, 134 L.Ed.2d 880 (1996) the United States Supreme Court granted certiorari in a case with facts similar to those presented in this proceeding to construe the time limits imposed by FRCP Rule 4(j). The issue presented was whether FRCP Rule 4(j) conflicted with the service requirements under the Suits in Admiralty Act, 46 U.S.C.App. § 741 et. seq.Id. at 656, 116 S.Ct. 1638. After initiating a lawsuit, counsel for the plaintiff...
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