Humphries v. Lewis

• Decision Date: 11 February 2003
• Docket Number: No. 96,250.,96,250.
• Citation: 2003 OK 12,67 P.3d 333
• Parties: Jim K. HUMPHRIES, Plaintiff/Appellant, v. Dean LEWIS d/b/a Dean Lewis Realtors, Defendant/Appellee.
• Court: Oklahoma Supreme Court

67 P.3d 333

2003 OK 12

Jim K. HUMPHRIES, Plaintiff/Appellant, v. Dean LEWIS d/b/a Dean Lewis Realtors, Defendant/Appellee.

No. 96,250.

Supreme Court of Oklahoma.

February 11, 2003.

As Corrected February 12, 2003.

Rehearing Denied April 14, 2003.

Douglas L. Boyd, Tulsa, for Appellant.

John W. Anderson, Jr., Tulsa, for Appellee.

BOUDREAU, Justice.

¶ 1 Jim K. Humphries (plaintiff) sued Dean Lewis d/b/a Dean Lewis Realtors (defendant) to recover a real estate commission. After the jury found in favor of defendant, the trial court entered judgment on the jury verdict. The judgment was filed October 11, 2000. In the next 30 days, which is the deadline set out in § 696.4(B),¹ defendant neither applied for fees and costs nor sought an extension of time within which to do so. On the forty-second day after judgment, twelve days late, defendant filed an application for fees and costs. Plaintiff opposed the application as untimely under § 696.4(B). Defendant then filed a motion under § 2006(B)(2)², requesting an extension of time within which to apply for fees and costs. The trial court accepted the § 2006(B)(2) motion, conducted a hearing to determine whether defendant's failure to timely apply for fees and costs was the result of excusable neglect, concluded it was, and awarded fees and costs to defendant in the total sum of $34,129.98.³ Plaintiff appealed, arguing the trial court erred in its legal conclusion that the deadline in § 696.4(B) is subject to being extended under § 2002(B)(2) and erred in its factual finding that the defendant established excusable neglect. The Court of Civil Appeals affirmed. We previously granted plaintiff's petition for writ of certiorari.

I. Issues

¶ 2 There are three issues for resolution. The first involves the interplay between §§ 696.4(B) and 2006(B)(2). Section 696.4(B) sets a 30-day deadline for seeking an extension of time within which to apply for fees and costs. We must decide whether this deadline is absolute or is, instead, subject to being extended under § 2006(B)(2). Second, we must interpret the phrase "excusable neglect" in § 2006(B)(2). Finally, we must decide whether the trial court abused its discretion when it found that defendant's failure to timely act was the result of excusable neglect.

II. Standard of Review

¶ 3 The first two issues involve statutory construction. Statutory construction presents a question of law which we review de novo. Arrow Tool & Gauge v. Mead, 2000 OK 86 ¶ 6, 16 P.3d 1120, 1123. We claim plenary, independent and non-deferential authority to examine a trial court's legal rulings. Manley v. Brown, 1999 OK 79, ¶ 22 n. 30, 989 P.2d 448, 456 n. 30. The third issue is a question of fact which we review for abuse of discretion. We affirm a trial court's factual findings unless it makes a clearly erroneous conclusion and judgment, against reason and evidence. CNA Ins. Co. v. Krueger, Inc., 1997 OK 142, 949 P.2d 676.

III. Interplay between § 696.(B)(4) and § 2006(B)(2)

¶ 4 To resolve the first issue, we consider the interplay between §§ 696.4(B) and 2006(B)(2). Section 696.4 addresses applications for attorney fees, costs and interest after the entry of a judgment, decree or appealable order. Section 2006 addresses computation of time and motions for extension of time under Title 12 of the Oklahoma Statutes.

¶ 5 Section 696.4(B) sets one deadline—30 days after the filing of a judgment—for two distinct acts: the act of applying for fees and costs, and the act of moving for an extension of time within which to apply for fees and costs. In other words, it requires that within 30 days after the filing of a judgment, a party must either apply for fees and costs or move for an extension of time to apply for fees and costs. Section 696.4(B) is silent about the consequences of failing to meet the 30-day deadline.

¶ 6 Section 2006(B) governs motions for extensions of time generally. It allows the trial court to grant an extension of time under two scenarios. Subsection (B)(1), which is not at issue in this case, applies when the motion for extension of time is filed before the expiration of the original deadline. Subsection (B)(2) applies when, as in this case, the motion for extension of time is filed after the expiration of the original deadline. Under subsection (B)(2), the party seeking the extension must establish excusable neglect for failing to meet the deadline for which the extension is sought.

¶ 7 Fundamental to statutory construction is to ascertain and give effect to legislative intent. City of Durant v. Cicio, 2002 OK 52, ¶ 13, 50 P.3d 218, 221. Where the language of a statute is clear and unambiguous, the language will be given its plain meaning. Id. Whenever it is possible to construe two acts by giving effect to both without doing violence to either, such construction is preferred over one that may produce conflict between them. Grand River Dam Auth. v. State, 1982 OK 60, 645 P.2d 1011, 1019.

¶ 8 Again, the first issue is whether the 30-day deadline in § 696.4(B) is absolute or is, instead, subject to being extended under § 2006(B)(2). Keeping in mind the Court's duty to interpret the two statutes so as to give effect to both, if possible, we hold that the deadline is subject to being extended.⁴

¶ 9 Section 2006(B)(2) provides in pertinent part: "When ... an act is required ... to be done ... within a specified time, the court... may .... upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect." (emphasis added). Most statutes set one deadline for one act. When there is one deadline for one act, it is clear which act is the one that is required to be done within a specified time. Section 696.4(B), however, sets one deadline for two acts, both of which are required to be done within the same specified time. The only way to construe §§ 2006(B)(2) and 696.4(B) together, giving effect to both without doing violence to either, is to apply the "failure to act" language in § 2006(B)(2) to both of the "acts" identified in § 696.4(B). In other words, a party who fails to timely apply for fees and costs and fails to timely request an extension of time under § 696.4(B), and who then files a motion for extension of time under § 2006(B)(2), must show excusable neglect not only for failing to apply for fees and costs within 30 days but also for failing to seek an extension of time within that same period.

¶ 10 This interpretation does not create any conflict between the two statutes—it harmonizes them. Section 696.4(B) does not expressly prohibit a motion for extension of time filed more than 30 days after judgment—it is silent on the issue; and § 2006(B)(2) expressly authorizes motions for extension of time filed after the original deadline has expired. Further, § 2006(B)(2) applies to all deadlines set out in Title 12 of the Oklahoma Statutes except the ones enumerated in § 2006(B)(2).⁵ Since the 30-day deadline in § 696.4(B) is not one of the enumerated deadlines excluded from § 2006(B)(2), it is subject to being extended under § 2006(B)(2).

¶ 11 This interpretation also comports with the Committee Comment to § 696.4, which expressly states that the time for filing "the motion" [for extension of time] may be enlarged under § 2006(B).⁶ Although the Comment is not binding, it does serve to clarify legislative intent and aid the Court in interpreting the statute. Ross v. Kelsey Hayes, Inc., 1991 OK 83, 825 P.2d 1273, 1277-78.

¶ 12 Finally, this interpretation does not conflict with our holding in Dewey v. Firefighters Pension and Retirement System, 2001 OK 40, 28 P.3d 539. In Dewey, the party seeking pre-judgment interest filed its application after the expiration § 696.4(B)'s 30-day deadline, and the other side opposed the motion as untimely. In this regard, the Dewey facts are the same as the facts in this case. We said the 30 day deadline in § 696.4(B) is "an indispensable precondition." The difference between Dewey and this case is that in Dewey, there is no suggestion that the party subsequently filed a § 2006(B)(2) motion for extension of time. Thus, in Dewey, we simply did not address the question that is presented by the facts of this case.

III. Excusable neglect standard

¶ 13 We have never defined the phrase "excusable neglect" in § 2006(B)(2). However, since § 2006(B)(2) tracks Rule 6(b) of the Federal Rules of Civil Procedure, we may properly look to federal decisions as a guide.⁷

¶ 14 The seminal case defining excusable neglect is Pioneer Iv. Servs. Co. v. Brunswick Assocs. Ltd. Partnerships, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). In Pioneer, the United States Supreme Court resolved differences among several federal circuit courts.⁸ Some had taken a narrow view, holding that excusable neglect is limited to circumstances beyond the party's control; others had adopted a more liberal approach.⁹ The Court rejected the narrow view and concluded that "Congress plainly contemplated that courts would be permitted, where appropriate, to accept late filings caused by inadvertence, mistake, or carelessness, as well as by intervening circumstances beyond the party's control." Pioneer at 388, 113 S.Ct. 1489.

¶ 15 The Court held that the determination of whether neglect is excusable "is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission. These include ... the danger of prejudice to the [non-movant], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith." Id. at 395, 113 S.Ct. 1489. In making this determination, the proper focus is on both the movant and the movant's counsel. Id. at 397, 113 S.Ct. 1489.

¶ 16 We agree with the analysis of Pioneer. We adopt Pioneer's excusable neglect standard.

V. Application of...