Ford v. Tulsa Pub. Sch., Case Number: 115575

• Decision Date: 27 July 2017
• Docket Number: Case Number: 115575
• Citation: 405 P.3d 142
• Parties: Cariol FORD, Plaintiff/Appellant, v. TULSA PUBLIC SCHOOLS, Defendant/Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

405 P.3d 142

Cariol FORD, Plaintiff/Appellant,

v.TULSA PUBLIC SCHOOLS, Defendant/Appellee.

Case Number: 115575

Court of Civil Appeals of Oklahoma, Division No. 4.

Decided: July 27, 2017

Mandate Issued: August 22, 2017

Pamla K. Cornett, FLYNN LAW FIRM PLLC, Tulsa, Oklahoma, for Plaintiff/Appellant.

Eric D. Wade, ROSENSTEIN, FIST & RINGOLD, Tulsa, Oklahoma, for Defendant/Appellee.

DEBORAH B. BARNES, PRESIDING JUDGE:

¶ 1 Cariol Ford filed this tort action against Tulsa Public Schools (TPS) alleging she was involved in an automobile accident with a bus owned by TPS. She alleges the bus was being driven negligently by an agent or employee of TPS and that the bus driver's negligent driving caused her to incur, inter alia, medical expenses and pain and suffering.

¶ 2 TPS filed a motion to dismiss, asserting Ford failed to comply with one or more provisions of the Governmental Tort Claims Act (GTCA), 51 O.S. 2011 & Supp. 2012 §§ 151 - 172, thereby extinguishing the court's subject matter jurisdiction over this action. Ford appeals from the trial court's order granting the motion to dismiss. She also appeals from the trial court's denial of her "Motion to Reconsider" that order.

¶ 3 Based on our review, we conclude an issue of fact exists as to whether Ford has satisfied the requirement under the GTCA that her claim be "filed with the office of the clerk of the governing body." 51 O.S. Supp. 2012 § 156(D). Although Ford admits her claim was not specifically addressed to the office of the appropriate clerk, she has presented facts and allegations, set forth in more detail below, that it was nevertheless transmitted to and filed with the office of that clerk. TPS has presented an affidavit in conflict with Ford's evidentiary materials and assertions. Thus, we remand this case to the trial court for purposes of holding an evidentiary hearing to resolve this issue of fact.

¶ 4 TPS also asserts the trial court lacks jurisdiction over this action because Ford failed to file her petition in the district court within 180 days of the claim being denied by TPS. As pointed out by Ford in her motion to reconsider, this basis for dismissal was set forth for the first time in TPS's reply to Ford's response to the motion to dismiss, and Ford was, thus, unable to respond to this basis for dismissal in her response to the motion to dismiss. Ford also asserts that the 180-day time limit may be extended under certain circumstances, circumstances which she asserts are present in this case. We conclude this issue should also be addressed by the trial court at the evidentiary hearing, where both parties can present argument and evidence in support of their positions.

STANDARD OF REVIEW AND PRELIMINARY ISSUES

¶ 5 Both parties have included evidentiary materials beyond the pleadings—TPS has attached an affidavit to its motion to dismiss, and Ford has attached various evidentiary materials to her response to the motion to dismiss. TPS notes that because it is moving for dismissal for lack of subject matter jurisdiction, "the court may view matters outside the pleadings without converting the motion to one for summary judgment." We agree.

¶ 6 In general, under 12 O.S. 2011 § 2012(B),

the procedure [for] converting a motion to dismiss into a motion for summary judgment when matters outside the pleadings are presented applies only to motions to dismiss for failure to state a claim upon which relief can be granted, but does not apply to motions to dismiss for lack of subject matter jurisdiction[.]

Grayhorse Energy, LLC v. Crawley Petroleum Corp., 2010 OK CIV APP 145, ¶ 6 n.10, 245 P.3d 1249 (citations omitted). "This Court has held that a trial court may review evidentiary material attached to a motion to dismiss, without converting the motion to one for summary judgment, if the motion challenges the court's jurisdiction." Kennedy v. City of Talihina, 2011 OK CIV APP 108, ¶ 4, 265 P.3d 757 (citation omitted).¹

¶ 7 In TPS's motion to dismiss, it challenges the court's jurisdiction. TPS asserts that Ford has failed to comply with one or more provisions of the GTCA and that this failure has extinguished the court's subject matter jurisdiction over the action. Indeed, the Oklahoma Supreme Court has explained that

the Legislature consented to judicial enforcement of tort claims in the manner narrowly structured by the procedural requirements of §§ 156 and 157. [This Court has previously] determined that: 1) compliance with the written notice of claim and denial of claim provisions in §§ 156 and 157 are prerequisites to the state's consent to be sued and to the exercise of judicial power to remedy the alleged tortious wrong by the government; 2) judicial power is invoked by the timely filing of the governmental tort claims action pursuant to § 157 ; and, 3) expiration of the 180-day time period in § 157(B) operates to bar judicial enforcement of the claim against the government to which the Legislature waived sovereign immunity.

Shanbour v. Hollingsworth, 1996 OK 67, ¶ 7, 918 P.2d 73.²

¶ 8 Because TPS challenges the court's jurisdiction, the trial court properly refrained from converting the motion to dismiss into one for summary judgment. Thus, we will treat TPS's motion as a motion to dismiss and we will also review the evidentiary material attached by the parties. "This Court subjects a trial court's judgment dismissing a petition to de novo review." Wilson v. State ex rel. State Election Bd., 2012 OK 2, ¶ 4, 270 P.3d 155 (citation omitted). "Motions to dismiss are generally disfavored and granted only when there are no facts consistent with the allegations under any cognizable legal theory or there are insufficient facts under a cognizable legal theory." Id. (citation omitted).

¶ 9 This case is made somewhat more procedurally complex (1) by the fact that TPS was granted permission to file a reply brief and, according to Ford, raised a new basis for dismissal in that reply, and (2) by the fact that Ford filed a "Motion to Reconsider" the trial court's order granting the motion to dismiss, which the trial court denied. As to Ford's motion to reconsider, the Oklahoma Supreme Court has stated numerous times that "[a] ‘motion to reconsider’ does not technically exist within the statutory nomenclature of Oklahoma practice and procedure." Smith v. City of Stillwater, 2014 OK 42, ¶ 10, 328 P.3d 1192 (citations omitted).

However, if timely filed, a "motion to reconsider" may be treated as a motion for new trial under 12 O.S. § 651 (if filed within ten (10) days of the filing of the judgment, decree, or appealable order), or it may be treated as a motion to modify or to vacate a final order or judgment under the terms of 12 O.S. §§ 1031 and 1031.1 (if filed after ten (10) days but within thirty (30) days of the filing of the judgment, decree, or appealable order).

Smith, ¶ 10 (citations omitted). Ford's motion to reconsider was filed within ten days of the order, yet she expressly filed it "pursuant to 12 O.S. §§ 1031 and 1031.1 [.]" Because Ford's motion was filed within ten days, we will treat her motion to reconsider as a motion for new trial for purposes of tolling the time to appeal the underlying order. See Schepp v. Hess, 1989 OK 28, ¶ 1 n.2, 770 P.2d 34 ("Although a ‘motion to reconsider’ filed within ten days of a judgment may also be considered as a timely new-trial motion that tolls the time to appeal, when such motion is filed after the ten-day period but within thirty days following the decision, it will not operate to extend the time to appeal from that decision.") (citations omitted) (emphasis in original).

¶ 10 "Absent some pure error of law, the trial court's ruling on a motion to reconsider will not be disturbed unless affected by an abuse of discretion." Waldrop v. Hennessey Utilities Auth., 2014 OK CIV APP 106, ¶ 7, 348 P.3d 213 (citation omitted). However, in this case, the propriety of the trial court's denial of the motion to reconsider rests on the underlying correctness of its decision to dismiss. The abuse of discretion question is therefore settled by our de novo review of the dismissal's correctness. Pellebon v. State ex rel. Bd. of Regents of Univ. of Okla., 2015 OK CIV APP 70, ¶ 13, 358 P.3d 288. "The same standard of review applies with respect to the construction of statutes necessary to determine the legal sufficiency of the petition." Kennedy, 2011 OK CIV APP 108, ¶ 4, 265 P.3d 757 (citation omitted).³

ANALYSIS

¶ 11 In TPS's motion to dismiss, it asserts Ford has failed to comply with one of the notice provisions of the GTCA. In particular, TPS points out that before a lawsuit may be initiated against a political subdivision such as a school district, written notice must be filed with the office of the clerk of that governing body. 51 O.S. Supp. 2012 § 156(D) ("A claim against a political subdivision shall be in writing and filed with the office of the clerk of the governing body.").

¶ 12 In response, Ford states she "acknowledges her claim is governed by the provisions of the [GTCA]," and she "further acknowledges that failure to comply with the Notice Provision of [ § 156 ] shall bar a claim." She also admits that the notice she sent "was not addressed to the clerk of the governing body," and was instead "sent to the Tulsa Public Schools[.]" However, Ford asserts that because her notice letter was "clearly marked as a Notice of Claim and properly informed the school district of the relevant aspects of [Ford's] claim," that TPS was not prejudiced and was not prevented from investigating the claim. Ford asserts "any deficiency of the Notice itself is a technicality at best" because Ford's counsel "was in regular contact with Bob Collier, Senior Claims adjustor for the third party administrator who handled the claims for [TPS]." Evidentiary materials attached to Ford's response support her assertions and further indicate the claim was "reported to [the third party administrator] for handling," received a claim number, and was being...