Medlin v. Texaco Inc., 86827

• Decision Date: 06 August 1996
• Docket Number: No. 86827,No. 4,86827,4
• Citation: Medlin v. Texaco Inc., 926 P.2d 804 (Okla. Civ. App. 1996)
• Parties: 1996 OK CIV APP 96 Gary MEDLIN, an individual, and Dawn Medlin, an individual, Appellants, v. TEXACO INC., Appellee, v. SHERWOOD CONSTRUCTION COMPANY, INC. (now Sherwood South, Inc.), Midwest Environmental Services, Inc., Hemphill Corporation, Sinclair Oil Corporation, and Wildcat Construction Company, Inc., Defendants. Court of Appeals of Oklahoma, Division
• Court: United States State Court of Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 804

926 P.2d 804

1996 OK CIV APP 96

Gary MEDLIN, an individual, and Dawn Medlin, an individual, Appellants, v.TEXACO INC., Appellee, v.SHERWOOD CONSTRUCTION COMPANY, INC. (now Sherwood South,

Inc.), Midwest Environmental Services, Inc., Hemphill

Corporation, Sinclair Oil Corporation, and Wildcat

Construction Company, Inc., Defendants.

No. 86827.

Released for Publication by Order of the Court of Appeals of Oklahoma, Division No. 4.

Court of Appeals of Oklahoma Division No. 4.

Aug. 6, 1996.

Certiorari Denied Oct. 23, 1996.

Appeal from the District Court of Tulsa County; James A. Hogue, Sr., Trial Judge.

Gary L. Richardson, Charles L. Richardson, Brad Smith, Richardson & Stoope, Tulsa, for Appellants.

Gary Davis, Stephen L. Degiusti, Crowe & Dunlevy, Oklahoma City, for Appellee.

RAPP, Chief Judge.

Trial courtplaintiffs, Gary and Dawn Medlin, appeal the trial court's order dismissing as time-barred their claims against defendant, Texaco.The issue presented is whether plaintiffs' amendment of an existing petition to add Texaco as a defendant after plaintiffs had voluntarily dismissed Texaco without prejudice, constituted a "new action" within the one-year savings provisions of 12 O.S.1991, § 100.

Plaintiffs brought this personal injury action against five defendants, including Texaco, on May 20, 1993.Plaintiffs alleged that Gary Medlin was injured on October 1, 1991, while helping to remove toxic waste in old buried drums on Tulsa Riverparks park land.Texaco previously owned the land where the drums were found and also owned the adjoining refinery property, and probably, plaintiffs contend, buried the toxic waste during its ownership.

On April 12, 1994, Texaco filed a motion for summary judgment.Before the hearing on the motion, Sinclair Oil Corporation, a defendant in plaintiff's lawsuit, removed the action to the United States District Court on July 18.Unaware of the removal, plaintiffs dismissed their claims against Texaco in state court without prejudice on July 20, 1994.On August 15, 1994, Plaintiffs filed a dismissal without prejudice of their claims against Texaco in federal court.The other defendants remained in the lawsuit.

Then, on October 8, 1994, plaintiffs filed a motion for leave to file an amended complaint in federal court to add Texaco back as a defendant on the grounds that "[o]ngoing research and discovery ... have recently provided Plaintiffs with new information that implicates Texaco, Inc., as one of the parties who created the hazard that injured PlaintiffGary Medlin."In a special appearance, Texaco objected to the motion to amend.Texaco argues that an amended petition is not a "new action" and therefore does not come within the one-year savings provision of 12 O.S.1991, § 100, after a dismissal that is not on the merits.Texaco conceded that since plaintiffs"voluntarily dismissed their action against Texaco without prejudice on August 15, 1994, they may again sue Texaco so long as the new action is commenced by August 15, 1995."

The federal court did not rule on the motion to amend because it remanded the action to state court on November 29, 1994.Plaintiffs therefore filed, on January 4, 1995, a motion for leave to file an amended petition in state court to add Texaco back as a defendant.Two days later, plaintiffs obtained an ex parte order granting the motion to amend from a judge who was not assigned to the case, who signed for another judge who was not assigned to the case.The amended petition was filed on January 11, 1995.

Texaco filed a motion to vacate the order granting the motion to amend, which was overruled.Then, Texaco entered a special appearance and moved to dismiss plaintiffs' amended petition on the grounds that it did not satisfy the requisites of 12 O.S.1991, § 100, and was therefore time-barred.The court granted the motion and dismissed plaintiffs' claims against Texaco.In its order, the court stated that plaintiffs"failed to properly bring themselves within the ambit of 12 O.S.1991, § 100," and that the claims against Texaco were therefore time-barred.Plaintiffs appeal the dismissal of their claims against Texaco.¹

In determining whether plaintiffs' claims against Texaco are time-barred, it is necessary to consider the language of the savings statute which 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.

12 O.S.1991, § 100.

It is clear that the injury occurred on October 1, 1991, and that the original lawsuit was filed on May 20, 1993, which was within the two-year statute of limitations for negligence.Plaintiffs dismissed their claims on August 15, 1994.Since the dismissal was not on the merits, the savings statute gave plaintiffs one more year to file a "new action" from the date of dismissal.Thus, plaintiffs had until August 15, 1995, to commence a new action against Texaco.The amended petition was filed on January 11, 1995.The issue is therefore whether the filing of the amended petition in the original, still open case was sufficient to constitute the commencement of a new action under the savings statute.

Plaintiffs assert that since there was a petition still pending against the other defendants arising out of the same occurrence, the amendment of the pending petition to add Texaco to the lawsuit was sufficient to satisfy the requirements of the savings statute.Otherwise, plaintiffs would have been required to open...