B & M Intern. Trading Co. v. Woodie Ayers Chevrolet, Inc.

• Decision Date: 22 November 1988
• Docket Number: No. 67218,67218
• Citation: 1988 OK 133,765 P.2d 782
• Parties: B & M INTERNATIONAL TRADING CO., Appellant, v. WOODIE AYERS CHEVROLET, INC., (Successor to Craig Ayers-Ford Chevrolet, Inc.); A and F Export, Ltd., a corporation; General Motors Corporation, a corporation; and General Motors Acceptance Corporation, a corporation, Appellees.
• Court: Oklahoma Supreme Court

Page 782

765 P.2d 782

1988 OK 133

B & M INTERNATIONAL TRADING CO., Appellant, v. WOODIE AYERS CHEVROLET, INC., (Successor to Craig Ayers-Ford

Chevrolet, Inc.); A and F Export, Ltd., a corporation;

General Motors Corporation, a corporation; and General

Motors Acceptance Corporation, a corporation, Appellees.

No. 67218.

Supreme Court of Oklahoma.

Nov. 22, 1988.

John B. Hayes, Suzanne E. Broadbent, Oklahoma City, for appellant.

E. Paul Ferguson, Thomas E. Prince, Ferguson & Prince, Page Dobson, Terry A. Hall, Gary C. Bachman, Holloway, Dobson, Hudson & Bachman, Oklahoma City, for appellees.

SUMMERS, Justice.

This lawsuit was filed in 1976. The issue here is whether the trial court, some nine years later, correctly dismissed it with prejudice to refiling on the basis of laches. The Court of Appeals affirmed the lower court, and we have previously granted certiorari. We affirm the dismissal, but reverse that part of the order which would prevent plaintiff from refiling within one year under 12 O.S. 1981 § 100.

In 1976 B & M Industrial Trading Co. filed an action alleging inter alia tortious interference by the defendants with its contract to facilitate the export of some one thousand heavy duty General Motors trucks to Iran. Plaintiff also sought accountings of various funds which were to have been collected and disbursed among the parties pursuant to the specific contractual provisions.

Between December, 1976 and May, 1977, all defendants entered appearances, filed demurrers and motions to make more definite and certain. In May and June, 1977, the various defendants served extensive interrogatories on plaintiff.

The lengthy delays which ultimately resulted in the trial court's dismissing the suit began following service of the defendants' interrogatories. Between May, 1977 and October, 1979 (the date upon which the plaintiff filed answers to the second set of interrogatories), the trial court entered twenty-nine orders extending by agreement of parties the time during which plaintiff was to answer the interrogatories. Each agreement is memorialized by a written order executed by counsel for the parties.

Upon receiving answers to their respective interrogatories, the defendants filed motions to compel more complete answers. While these motions were pending, B & M's president traveled to Iran in 1981, and to Turkey in 1983 in an attempt to get documents with which to supplement his answers. He brought back certain documents already in possession of the defendants, and contends that the trips were less successful than he had anticipated because of the political turbulence in Iran.

With the filing of the General Motors defendants' Motion to Compel the case stood in limbo. The original demurrers and motions had been held in abeyance pending completion of discovery; no answers had been filed. Further, after the 1980 Motion to Compel, the plaintiff appeared annually at the court's disposition docket. The defendants acknowledge that they took no action to dissuade the court from continuing to carry the case without dismissal.

In July, 1985 the plaintiff served its requests for production on the defendants who responded with motions to dismiss. After briefs and arguments, the trial court dismissed the action with prejudice based upon the doctrine of laches.

The Court of Appeals, in a summary opinion, affirmed the trial court. We have granted certiorari and now reverse in part. We hold that under either the old standards of pleading or the Oklahoma Pleading Code, laches constitutes an affirmative defense, and that it is available only in equity actions. Since this action sounds primarily in law, and since the defendants acquiesced in the delay, the defense of laches will not lie, and the court was without authority to dismiss the action with prejudice. We vacate the Court of Appeals opinion, and affirm that portion of the trial court's order which dismisses the action, but reverse the remainder holding that the dismissal must be without prejudice. See Points v. Oklahoma Publishing Co., 672 P.2d 1146 (Okla.1983).

The doctrine of laches is peculiar to courts of equity. Skinner v. Scott, 118 P. 394 (Okla.1911). The present suit alleges tortious interference with a contract, and requests money damages, punitive damages and certain accountings. The authority to order accountings falls within the court's equity jurisdiction, and "an accounting may be decreed in a suit which is founded upon other grounds, for the purpose of affording full and complete relief." Fernow v. Gubser, 196 Okl. 58, 162 P.2d 529 (1945).

The gravamen of the suit, however, sounds in law, not equity. Jury trial had been requested by Plaintiff, and no pleadings were filed by defendants suggesting the case was of equitable cognizance. This suit was filed in 1976 before the advent of the Oklahoma Pleading Code. Nonetheless, under either system of pleading, laches constitutes an affirmative defense which the defendant must specially raise. We consistently held under the old rules that "new matter that the plaintiff is not bound to prove in the first instance must be specifically pleaded as an affirmative defense." Flick v. Crouch, 434 P.2d 256, 261 (Okla.1967); Venmex Oil Co. v. Thomas, 189 Okl. 407, 117 P.2d 540 (1941).

No new result attaches under the pleading code which became effective during the pendency of this action. Title twelve, of the Oklahoma Statutes, section 2008(C)(12) requires that the defense of laches shall be set forth affirmatively, which the defendants did not expressly do in their Motion to Dismiss (Defendants to date have never yet answered the petition.)

However, even assuming arguendo that the defendants raised laches properly, they may not avail themselves of the defense because (1) this case arises primarily at law, and (2) the...