Grisham v. City of Okla. City, Corp.

• Citation: 404 P.3d 843
• Decision Date: 18 September 2017
• Docket Number: Case Number: 112786.
• Parties: Brent and Deborrah GRISHAM, Individually and as husband and wife; and Dan and Lee Rutledge, Individually and as husband and wife, Plaintiffs/Appellants, v. The CITY OF OKLAHOMA CITY, a Municipal Corporation, Defendant/Appellee.
• Court: Supreme Court of Oklahoma

404 P.3d 843

Brent and Deborrah GRISHAM, Individually and as husband and wife; and Dan and Lee Rutledge, Individually and as husband and wife, Plaintiffs/Appellants,

v.The CITY OF OKLAHOMA CITY, a Municipal Corporation, Defendant/Appellee.

Case Number: 112786.

Supreme Court of Oklahoma.

Decided: September 18, 2017

Andrew J. Waldron, Walker and Walker, Oklahoma City, Oklahoma, for Plaintiffs/Appellants.¹

Matthew Collins, Assistant Municipal Counselor, Oklahoma City, Oklahoma for Defendant/Appellee.

EDMONDSON, J.

¶ 1 This dispute is whether the term "claim" used in the Governmental Tort Claims Act ( 51 O.S. 151 - 172 ) when giving notice to a defendant should be construed as the same as a "claim" for the purpose of pleading in an Oklahoma District Court? The short answer to this question is, yes, they are construed the same except when the Governmental Tort Claims Act (GTCA or Act) requires or allowsa difference. We explain the judgment of the District Court is reversed and on remand the court must grant a new trial.

¶ 2 The plaintiffs are two couples who suffered damages as a result of a sewer backup. They filed notice of claims with the City of Oklahoma City. The City's claim form asks claimants to distinguish between claims for injury to (1) personal property other than a vehicle, (2) personal injury, and (3) injury to a vehicle. The City denied the claims. Plaintiffs brought an action in the District Court for Oklahoma County and alleged property damage as well as nuisance damages, discomfort, inconvenience, and annoyance. The case was tried before a jury. The jury awarded each couple an amount in excess of the statutory cap for property damages.

¶ 3 The trial court determined the Plaintiffs "filed their Petition seeking damages to their property and for personal injuriesdue to a sewer backup into their homes."² The pretrial conference order notes plaintiffs' claims for both property damage and damages for annoyance, inconvenience and discomfort on a nuisance claim. The City brought three demurrers to the evidence at trial. On the first it argued "Plaintiffs have failed to make a prima facie case of negligence or nuisance" The trial judge responded: "Okay. Well, it would be overruled. They've made a prima facie case on those."³ The second argued the notice of claims with the City did not identify personal injury claims. The trial court sustained the demurrer on the evidence as to plaintiffs' nuisance personal injury claims based upon a conclusion that the GTCA notices were insufficient as a matter of law. The trial court then sustained a demurrer to the evidence arguing Deborrah Grisham did not file a tort claim. The proposed jury instructions on nuisance and personal injury were not given to the jury.

¶ 4 The trial judge determined only property damage had been asserted by plaintiffs in their pre-action governmental tort claim notice with the City of Oklahoma City. The trial court reduced the verdict to a judgment for each couple in amount of $25,000.00 for damage to property. The trial court's decision to reduce the award was based upon an issue of law, does the GTCA require a notice of claim to specify types of damage, damage to property and other damages, in order for the notice to be effective pursuant to the GTCA? The trial court denied plaintiffs' motion for new trial based upon its previous statutory interpretation of the GTCA. Generally, an abuse of discretion standard is used for appellate review of an order denying a motion for new trial.⁴ An abuse of discretion occurs when a court bases its decision on an erroneous conclusion of law or where there is no rational basis in evidence for the ruling.⁵ An alleged error of law is reviewed on appeal using a de novostandard.⁶ The alleged error in this proceeding is the trial court's construction or meaning of the statutory GTCA notice. This alleged error is reviewed de novo.

¶ 5 Plaintiffs appealed and asserted they were entitled to an additional amount per couple as awarded by the jury. The Court of Civil Appeals affirmed. Plaintiffs' petition for certiorari was granted. Plaintiffs argue on certiorari the notice of claim given to a government entity need not specify with particularity different types of damages. The City argues a notice of claim must specify with particularity property damages and other damages.

¶ 6 The judge's decision in reducing the verdict is based upon two concepts: (1) a plaintiff must specify whether damages have occurred to (a) property or (b) "any other loss" as part of the pre-suit notice to the governmental entity, and (2) the absence of such specificity in the notice invalidates the notice as to either type of loss not specifically named with particularity in the notice. We agree with this approach due to the type of notices given by plaintiffs to the City, but reverse due to our prospective holding.

¶ 7 Notice and its elements are not mandatory and jurisdictional merely because notice is required in a given circumstance. Notice may be jurisdictional because the notice is used to alter a legally protected interest,⁷ or merely because procedure requiring the notice expressly makes it mandatory or jurisdictional, such as when the Legislature uses the term "shall" to indicate a legislative intent to create a mandatory requirement.⁸ We have observed that the notice specified by the GTCA is a "mandatory prerequisite jurisdictional requirement to filing a tort claim for damages."⁹

¶ 8 The GTCA uses the term "shall" and thereby appears to make certain attributes of the notice to be mandatory.

Any person having a claim against the state or a political subdivision ... shallpresent a claim to the state or political subdivision for any appropriate relief including the award of money damages ...

... A claim against ... a political subdivision shallbe forever barred unless notice thereof is presented within one (1) year after the loss occurs.

... A claim against a political subdivision shallbe in writing and filed with the office of the clerk of the governing body.

51 O.S. 2011 156 (A), (B), & (D) (material omitted).

In Minie v. Hudson,¹⁰ the Court noted a statutory amendment and language in 156 requiring that notice of a claim "shall be in writing."¹¹ We concluded this language is "normally considered as a legislative mandate equivalent to the term 'must', requiring interpretation as a command;" and we held the amendment superseded our previous opinion explaining a substantial compliance test applied to claimant's verbal notice to a governmental entity.¹² No language in 156 uses the term "shall" in connection with specifying with particularity property injuries and other types of injuries. We conclude plaintiffs' notices complied with the requirements for notice in 156 which use the term "shall" for elements of the notice because of our prospective holding relating to a claimant's choice in giving a specific notice of a particular type of damage.

¶ 9 Section 156 refers to notice of a "claim" but does not define a claim for the purpose of notice. Section 152 of the Act defines a claim as follows.

4. "Claim" means any written demand presented by a claimant or the claimant's authorized representative in accordance with this act to recover money from the state or political subdivision as compensation for an act or omission of a political subdivision or the state or an employee;

51 O.S.2011 152 (4).

Identifying a claim by the nature of the loss, property or "any other loss," occurs in 154 of the Act and is for the stated purpose of limiting liability. The definition of a claim does not require one to specify the type of damages with particularity.

A. The total liability of the state and its political subdivisions on claims within the scope of The Governmental Tort Claims Act, arising out of an accident or occurrence happening after the effective date of this act, Section 151 et seq. of this title, shall not exceed:

1. Twenty-five Thousand Dollars ($25,000.00) for any claim or to any claimant who has more than one claim for loss of property arising out of a single act, accident, or occurrence;

2. Except as otherwise provided in this paragraph, One Hundred Twenty-five Thousand Dollars ($125,000.00) to any claimant for a claim for any other loss arising out of a single act, accident, or occurrence.The limit of liability for the state or any city or county with a population of three hundred thousand (300,000) or more according to the latest federal Decennial Census....

51 O.S.2011 154 (A) (1) & (2) (material omitted).

For the purpose of limiting "total liability" the Act distinguishes a claim based upon an injury to property from "any other loss" where the former is limited to $25,000.00 maximum liability and the latter a $125,000.00 liability. Section 154 splits "any claim ... for loss of property" in one paragraph from "a claim for any other loss" in the next paragraph. This identification of "claims" for liability purposes also expressly references them to "arising out of a single act, accident, or occurrence." The limitation of liability statute, 154, provides for splitting "claims" for the purpose of limits on liabilityand then ties these "claims" to language designating one cause of action or one claim, i.e., a single transaction or occurrence. The statutory limits tied to types of damage does not state that a notice of claim must state with particularity the type of damage in a notice of a claim.

¶ 10 The phrase arising out of a single act, accident, or occurrencein the GTCA is a reference to how a cause of action or a "claim" is defined in a District Court action. The Oklahoma Pleading Code made effective in 1984 uses the term "claim" as a functional equivalent to "cause of action" in several contexts.¹³ In a District Court proceeding, a cause of action or claim is notsplit into different claims or causes of action based upon whether injury occurred to the plaintiff's property versus his or her person. A cause of action in a District Court cannot be...