Perez v. Vandersee, Case No. 117,636

• Citation: 453 P.3d 514
• Decision Date: 14 October 2019
• Docket Number: Case No. 117,636
• Parties: Samantha PEREZ, Plaintiff/Appellant, v. Marrik VANDERSEE, Defendant/Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

453 P.3d 514

Samantha PEREZ, Plaintiff/Appellant,

v.Marrik VANDERSEE, Defendant/Appellee.

Case No. 117,636

Court of Civil Appeals of Oklahoma, Division No. 2.

FILED OCT. 14, 2019

Mandate Issued: November 14, 2019

Kevin Rehl, KEVIN REHL, PLLC (REHL LAW FIRM), Oklahoma City, Oklahoma, for Plaintiff/Appellant

Shanda McKenney, ANGELA D. AILLES & ASSOCIATES, Oklahoma City, Oklahoma, for Defendant/Appellee

OPINION BY P. THOMAS THORNBRUGH, JUDGE:

¶1 Plaintiff, Samantha Perez, appeals a decision of the district court finding that her automobile negligence suit against Defendant, Marrik Vandersee, was time barred. On review, we find that based upon the Oklahoma Supreme Court's recent clarification of the law applicable to the issue presented in matter in Cole v. Josey , 2019 OK 39, ––– P.3d –––– (petition for rehearing denied Sept. 9, 2019; mandate issued October 9, 2019), the trial court's decision must be reversed and the cause remanded for further proceedings.

BACKGROUND

¶2 Plaintiff Perez was injured in an automobile accident on November 17, 2014, and timely filed her petition on November 17, 2016, in Custer County, Oklahoma, Case No. CJ-2016-111. Although summons issued on the same date the petition was filed, service was not obtained.

¶3 On May 23, 2017, Defendant filed a special appearance and motion to dismiss based upon Plaintiff's failure to serve summons within 180 days as required by 12 O.S. Supp. 2014 § 2004(I). That motion was set for hearing on June 16, 2017.

¶4 On June 16, 2017, Plaintiff voluntarily dismissed her petition without prejudice to refiling for the stated reason that her counsel had emergency quintuple bypass heart surgery, and that as a result of his health and subsequent recovery she had been unable to effectuate service upon Defendant. As a result of the voluntary dismissal, no court order dismissing the case for failure to obtain service was entered.

¶5 On June 13, 2018, within one year of the voluntary dismissal, Plaintiff refiled her petition pursuant to the 12 O.S.2011 § 100 "savings statute," in Custer County Case No. CJ-2018-56.

¶6 Defendant filed a motion to dismiss Perez' suit for failure to re-file the lawsuit within one year of the "deemed dismissal" date, which was May 16, 2017. The trial court agreed with Defendant that the original petition was deemed dismissed on May 16, 2017, for failure to effect service within 180 days, and that Plaintiff had failed to refile her action within one year in accordance with 12 O.S. § 100. Plaintiff's timely motion for new trial was denied.

STANDARD OF REVIEW

¶7 At issue in this appeal is the district court's interpretation of 12 O.S. Supp. 2014 § 2004(I) and 12 O.S.2011, § 100. Legal questions involving statutory interpretation are subject to de novo review. Heffron v. District Court of Okla. County , 2003 OK 75, ¶ 15, 77 P.3d 1069. De novo review is non-deferential, plenary and independent. Neil Acquisition, L.L.C. v. Wingrod Inv. Corp ., 1996 OK 125, n.1, 932 P.2d 1100.

ANALYSIS

¶8 The sole issue on appeal is whether the re-filing of a petition after the first petition is voluntarily dismissed without effecting service of summons within 180 days must take place within one year of the date of the voluntary dismissal or within one year from the date the petition was "deemed dismissed" under § 2004(I) for failure to make service.

¶9 On May 29, 2019, the Supreme Court issued its opinion in Cole v. Josey , 2019 OK 39, ––– P.3d –––– (petition for rehearing denied Sept. 9, 2019; mandate issued October 9, 2019), where it stated at ¶ 16:

The one year period in 12 O.S. 2011, § 100 begins to run when there is finality in the judgment . A case dismissed pursuant to § 2004 (I) still needs a final appealable order to begin this process. The one year period begins the day after there is finality to the appeal or on the day after the order is filed if the judgment is not appealed. The best interpretation of the "deemed dismissed" language is that after the expiration of the 180 days under § 2004 (I), grounds for dismissal have ripened.⁴ However, the dismissal will not be final for purposes of 12 O.S. 2011, § 100 until, at the earliest, a final appealable order is filed.

(Emphasis in original; footnote omitted).

¶10 Here, there was no appealable order dismissing Plaintiff's original action because she exercised her right to voluntarily dismiss the action after the case was filed but before defendant was served. Thus, Plaintiff clearly was aware of the fact that the action had been dismissed. Despite this slightly different factual scenario, however, we find the reasoning of Cole v. Josey applies to the current case, and the savings period of 12 O.S.2011 § 100 did not start to run until June 16, 2017, when Plaintiff voluntarily dismissed the...