Mott v. Carlson, 69442
| Decision Date | 06 February 1990 |
| Docket Number | No. 69442,69442 |
| Citation | 1990 OK 10,786 P.2d 1247 |
| Parties | Robert M. MOTT, Appellant, v. James W. CARLSON, M.D., and James W. Carlson, M.D., Inc., a professional corporation, Appellees. |
| Court | Oklahoma Supreme Court |
Certiorari to the Court of Appeals, Tulsa, Div. IV; District Court of Carter County; Thomas S. Walker.
Suit for medical malpractice against physician and professional corporation. Trial court dismissed for plaintiff's failure to show good cause in failing to serve summons on the defendants within 120 days after petition filed.
CERTIORARI PREVIOUSLY GRANTED. COURT OF APPEALS OPINION VACATED. ORDER OF TRIAL COURT AFFIRMED.
Thomas A. Wallace, Oklahoma City, for appellant.
Calvin W. Hendrickson, Russell L. Hendrickson, Oklahoma City, for appellees.
In this suit for malpractice against a physician and his professional corporation two issues require our resolution. One involves interpretation of 12 O.S.Supp.1986, § 2004(I), Oklahoma's statute fixing the time within which a summons may be served on a defendant. The second involves 12 O.S.Supp.1986, Ch. 2, App., Rules For District Courts, Rule 4(h), allowing a trial court to decide motions without a hearing. The trial court's order dismissed the case as to the two defendants because of improper service. The Court of Appeals reversed and reinstated the case. Having granted certiorari, we affirm the trial court.
The suit was originally filed in 1985, and then after 180 days it was statutorily dismissed for failure to serve summons under 12 O.S.Supp.1985, § 2004(I). Title 12 O.S.1981 § 100 allows a suit so dismissed to be refiled within one year, and plaintiff refiled within that time, on December 19, 1986. There is no challenge to plaintiff's refiling of the case.
On June 17, 1987, the 180th day after the refiling, the papers were served on the doctor's wife at their residence. The defendants moved to dismiss for failure to obtain service within 120 days. The trial court sustained the motion and plaintiff appealed. Plaintiff, however, conceded on appeal that service as to the corporation was faulty, and sought reversal only as to the ruling on the doctor as an individual. 1
Defendant doctor relies on a line of federal cases 2 affirming dismissals where service was made after the lapse of 120 days from filing suit. The Federal Rule which was the model for our Section 2004(I) is as follows:
Federal Rules of Civil Procedure, Rule 4(j).
The Oklahoma Legislature used the exact same language of Rule 4(j), with the exception of the citation in the last sentence, in enacting 12 O.S.Supp.1984, § 2004(I). However, the Legislature added new material to the language of the Federal Rule. The 1984 version of our statute said:
12 O.S.Supp.1984, § 2004(I). (Emphasis added).
Then the statute was amended as follows:
12 O.S.Supp.1985, § 2004(I). (Emphasis added).
This is the operative section for today's case. Section 2004 was amended in 1986 but subsection (I) remained unchanged in the 1986 version. 12 O.S.Supp.1986, § 2004(I). 3
Generally, the word "may" is used to indicate discretionary authority. Pirrong v. Pirrong, 552 P.2d 383, 387 (Okla.1976). For example: language in 12 O.S.1971, § 667, which said that "The court may, for good cause shown, continue an action ..." has been construed as committing such decision unto the sound discretion of the trial court, and is reversed only when an abuse of discretion is shown. Matter of Estate of Katschor, 543 P.2d 560 (Okla.1975). See also, Faulkenberry v. Kansas City Southern Ry. Co., 661 P.2d 510, 513 (Okla.1983), cert. denied, 464 U.S. 850, 104 S.Ct. 159, 78 L.Ed.2d 146 (1983), where the court explained that when a trial court "may" order a separate trial its decision will be disturbed only when there is an abuse of discretion. Additionally, the Committee Comment to § 2004(I) indicates that a subsection (I) dismissal is within the discretion of the trial court when service of process occurs on or after the 121st day and before the 181st day following the filing of the petition. 12 O.S.Supp.Ann.1990, Committee Comment to § 2004. We also note that the Legislature changed the language from "the action shall be dismissed" to "the action may be dismissed" in the 1985 version of the statute and continued to use this language in the 1986 amendment. 4 (Emphasis added). Thus, in the present case, the trial court's dismissal is reversible by this court only upon a showing of an abuse of the trial court's discretion.
In Berry v. State ex rel. Oklahoma Public Employees Retirement System, 768 P.2d 898 (Okla.1989), we quoted the following with approval:
" 'Where the language of a statute is plain and unambiguous and its meaning clear and no occasion exists for the application of rules of construction, the statute will be accorded the meaning as expressed by the language therein employed.' " Id. 768 P.2d at 899-900.
We believe the language of § 2004(I) to be plain and unambiguous. An examination of the first and second sentences resolves the issue.
The first sentence states: "If service of process is not made upon a defendant within one hundred twenty (120) 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 may be dismissed as to that defendant without prejudice upon the court's own initiative with notice to the plaintiff or upon motion." 12 O.S.Supp.1986, § 2004(I). (Emphasis added). This sentence contemplates the following:
1. Service upon a defendant may be made within 120 days of the filing of the petition, with no restrictions imposed on the time limit.
2. Service upon the defendant may be made after 120 days from the filing of the petition, if the plaintiff has good cause for such delayed service.
3. If the plaintiff serves the defendant after the 120 day period filing the petition and if the plaintiff does not have good cause for such delayed service, then the trial court may dismiss the action as to the defendant so served.
4. The court may so dismiss the action as to the improperly served defendant in two ways: 1. on the court's own initiative with prior notice to the plaintiff; or 2. upon a motion by the defendant.
The second sentence then states: "If service of process is not made upon a defendant within one hundred eighty (180) days after the filing of the petition, the action shall be deemed to have been dismissed without prejudice as to that defendant." 12 O.S.Supp.1986, § 2004(I). This statement is clear: If the plaintiff does not serve the defendant within 180 days of filing the petition then the action is considered dismissed as to that defendant as a matter of law. 5
The above analysis shows that three time periods were contemplated by § 2004(I): 1. Timely service of process thru the 120th day following the filing of the petition; 2. Service of process occurring during the 121st day thru the 180th day following the filing of the petition, which may or may not be timely, and 3. Untimely service of process occurring on or after the 181st day following the filing of the petition. The present case involves the second of these three periods, since the doctor was served on the 180th day following the filing of the petition.
The defendant moved to dismiss, with a supporting brief which argued that the plaintiff must show good cause for failing to serve the defendant within 120 days of filing the petition. The plaintiff responded, advancing his legal arguments that the legislature had afforded 180 days for service. The trial court found no good cause established by Plaintiff's response, and dismissed the action. The plaintiff had the burden of showing good cause for delay in the service, and was unable to do so. We can not find any abuse of discretion on the part of the trial court in its dismissal.
In reversing the trial court the Court of Appeals relied, in part, on the Due Process Clause and the fact that the plaintiff did not receive a formal hearing prior to the order of dismissal. The Rules of the District Court provided, then and now, that motions may be decided by the court without a hearing.
"Motions may be...
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