Cole v. Josey, 116,600

• Decision Date: 29 May 2019
• Docket Number: No. 116,600,116,600
• Citation: 457 P.3d 1007
• Parties: Amanda COLE, Plaintiff/Appellant, v. Samantha JOSEY, Defendant/Appellee.
• Court: Oklahoma Supreme Court

457 P.3d 1007

Amanda COLE, Plaintiff/Appellant,

v.Samantha JOSEY, Defendant/Appellee.

No. 116,600

Supreme Court of Oklahoma.

FILED May 29, 2019

REHEARING DENIED September 9, 2019

Barry K. Roberts, Norman, Oklahoma, for Plaintiff/Appellant.

Reign Karpe and Tayler Lane, Angela D. Ailles & Associates, Oklahoma City, OK, for Defendant/Appellee.

COMBS, J.:

I. FACTS AND PROCEDURAL HISTORY

¶ 1 This negligence cause of action pertains to injuries and damages caused by the Appellee, Samantha Josey, against the Appellant, Amanda Cole, in an automobile accident. The accident occurred on May 15, 2013, and Cole filed her petition on April 29, 2015, in Cleveland County, Oklahoma, Case No. CJ-2015-508. On October 26, 2015, 180 days had passed since the petition was filed and no summons was recorded as issued and no service was accomplished. On November 16, 2015, Josey appeared specially and filed a motion to dismiss for lack of service within 180 days of filing the petition as required by " 12 O.S. § 2004 (I)."¹ The trial court granted the motion and dismissed the first cause of action without prejudice on January 4, 2016. On January 3, 2017, Cole refiled her petition in McClain County, Oklahoma, Case No. CJ-2017-1. Josey filed another special appearance and again moved to dismiss the petition on July 14, 2017. She asserted the first petition was deemed dismissed on the 181st day, October 27, 2015, and Cole did not refile her petition within one year of that date pursuant to the "savings statute," 12 O.S. 2011, § 100. The district court agreed with Josey and granted her motion to dismiss by an order filed November 9, 2017. It determined, Cole's petition in the Cleveland County case was deemed dismissed on October 27, 2015, and was not refiled within one year of its dismissal in accordance with " 12 O.S. § 100." Therefore, the McClain County petition, filed January 3, 2017, was untimely.

¶ 2 On December 8, 2017, Cole filed a petition in error with this Court. The case was assigned to the Oklahoma Court of Civil Appeals, Div. II. The appellate court affirmed the district court ruling on September 7, 2018. Cole filed a petition for rehearing which was denied. She then filed a petition for certiorari with this Court which was granted on April 1, 2019 and assigned to this office on the same day.

II. STANDARD OF REVIEW

¶ 3 The first impression question before us is one of law. A legal question involving statutory interpretation is reviewed de novo, i.e., by a non-deferential, plenary and independent examination of the trial court's legal ruling. Samman v. Multiple Injury Trust Fund , 2001 OK 71, ¶ 8, n.5, 33 P.3d 302. In the interpretation of statutes, courts do not limit their consideration to a single word or phrase in isolation to attempt to determine their meaning, but construe together the various provisions of relevant legislative enactments to ascertain and give effect to the legislature's intention and will, and attempt to avoid unnatural and absurd consequences. McNeill v. City of Tulsa , 1998 OK 2, ¶ 11, 953 P.2d 329. In construing statutes, harmony, not confusion, is to be sought and when parts of an act are reasonably susceptible of a construction which will give effect to both and to the words of each, without violence to either, such construction should be adopted in preference to one which, though reasonable, leads to the conclusion that there is a conflict. Rogers v. Oklahoma Tax Commission , 1952 OK 388, ¶ 17, 263 P.2d 409.

III. ANALYSIS

¶ 4 The sole issue on appeal is whether the refiling of a petition after the first petition is dismissed on the grounds that service was not made within 180 days must take place within one year of the finality of the order dismissing the case or within one year from the 181st day of filing the petition. We hold, the day after the filing of an appealable order dismissing the case is the date from which the 12 O.S. 2011, § 100 "savings statute" one year refiling period begins, if the order is not appealed. Where the dismissal order is appealed the one year period commences on the day after the appeal is final. This issue has not been specifically addressed by this Court under these facts and under the version of the statute applicable to this action.

¶ 5 Two statutes are applicable to this case. Title 12 O.S. Supp. 2014, § 2004 (I) and 12 O.S. 2011, § 100. Title 12 O.S. Supp. 2014, § 2004 (I) provides:

I. 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 shall be deemed dismissed as to that defendant without prejudice. The action shall not be dismissed if 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.

Title 12 O.S. 2011, § 100 ("savings statute") provides:

If any action is commenced within due time, and a judgment thereon for the plaintiff is reversed, or if the plaintiff fail in such action otherwise than upon the merits, the plaintiff, or, if he should die, and the cause of action survive, his representatives may commence a new action within one (1) year after the reversal or failure although the time limit for commencing the action shall have expired before the new action is filed.

¶ 6 The trial court and Josey relied heavily on non-precedential opinions of the Oklahoma Court of Civil Appeals interpreting these two statutes. The trial court's order cited exclusively to Thibault v. Garcia, 2017 OK CIV APP 36, 398 P.3d 331. In Thibault , the sole issue was whether a petition not served within 180 days was deemed dismissed on the 181st day after filing or on the date the court ordered the petition dismissed. Thibault, 2017 OK CIV APP 36 at ¶ 9, 398 P.3d 331. Thibault held the current version of 12 O.S. § 2004 (I) "requires that a petition not served in compliance with that statute be deemed dismissed 181 days after it was filed." Id. The Court of Civil Appeals modified the trial court's journal entry of judgment to reflect that the date of dismissal occurred on the 181st day after the petition was filed. Id., ¶ 17.

¶ 7 In her July 14, 2017, motion to dismiss, Josey relied upon two other Court of Civil Appeals opinions, Hough Oilfield Service, Inc. v. Newton, 2017 OK CIV APP 31, 396 P.3d 230, and Moore v. Sneed , 1992 OK CIV APP 107, 839 P.2d 682. Both of these opinions followed the non-precedential orders of this Court in a related appeal in Moore.² The Moore orders are based on this Court's opinion in Mott v. Carlson, 1990 OK 10, 786 P.2d 1247.

¶ 8 In Hough , the plaintiff filed suit on March 21, 2012, to recover embezzled funds but did not obtain service within 180 days. Hough Oilfield Service, Inc., 2017 OK CIV APP 31 at ¶¶ 2-3, 396 P.3d 230. The defendants moved to dismiss. Id., ¶ 3. The trial court granted the defendants' motion to dismiss on July 3, 2014, but found in its order that the case was deemed dismissed on September 18, 2012, which was the 181st day after the filing of the petition. Id. The plaintiff then refiled its petition on July 14, 2014, and the defendants again moved to dismiss. Id., ¶ 4. The trial court granted the dismissal and held the plaintiff failed to refile its petition by September 18, 2013, which it was required to do pursuant to 12 O.S. 2011, § 100. The plaintiff appealed the order. In affirming the trial court's order, the Court of Civil Appeals held 12 O.S. 2011, § 2004 (I) does not address the date the action is deemed dismissed, but the Supreme Court had provided clear guidance in Moore v. Sneed , 1992 OK CIV APP 107, 839 P.2d 682 ; "[t]he Supreme Court's order in Moore clearly states an action without service is deemed dismissed, as a matter of law, from the 181st day." Id. , ¶¶ 11-15.

¶ 9 Moore has a similar fact pattern to Hough . The plaintiff filed suit but did not serve the defendant within 180 days. Moore, 1992 OK CIV APP 107 at ¶ 1, 839 P.2d 682. The trial court granted the defendant's motion to dismiss for failure to serve process pursuant to 12 O.S. Supp. 1986, § 2004 (I). Id. The plaintiff refiled his petition on the same day. Id. The defendant, however, petitioned the trial court to certify its order. Id., ¶ 2. He asserted the date of dismissal should not have been the date of the order but instead should have been the date it was deemed dismissed on the 181st day after filing the original petition. Id. The trial court certified its order and this Court granted certiorari. In an unpublished order dated April 22, 1991, we held:

The issues presented in this case are controlled by the decision in Mott v. Carlson, 786 P.2d 1247, 1250 (Okl. 1990). In that decision we held that if the plaintiff does not serve the defendant with process within 180 days of the filing of the petition, then the action is considered dismissed as to that defendant as a matter of law, according to 12 OS. [sic] Supp. 1986 § 2004(I). The opinion clearly indicates that the effective date of dismissal in such situations is none other than the 181st day following the filing of the petition.

The order also notes § 2004 (I) was amended in 1989 to allow a plaintiff who has not served a defendant with process within 180 days of filing of a petition to have an opportunity to show good cause for non-service. We held this amendment should be given retroactive application because it is procedural in nature unless plaint...