Prough v. Edinger, Inc., 79368

Decision Date12 October 1993
Docket NumberNo. 79368,79368
Citation1993 OK 130,862 P.2d 71
PartiesQuay D. PROUGH and Denise L. Prough, Plaintiffs-Respondents, v. EDINGER, INC., Defendant-Petitioner.
CourtOklahoma Supreme Court

Certiorari to Review Certified Interlocutory Order from District Court of Cleveland County; Patricia D. Herron, District Judge.

The plaintiffs filed suit against the defendant seeking damages from the operation of the defendant's salt-water disposal well. The petition did not allege the dates of the damage. After the defendant filed its answer, and during discovery, the defendant determined the statute of limitations barred most of the damages and requested it be allowed to amend its answer. The trial court denied the defendant's motion and certified an interlocutory order to answer whether the defendant should be allowed to amend its answer to include the affirmative defense of the statute of limitations.

CERTIFIED QUESTION ANSWERED.

Gary R. Morris, Stephen P. Dixon, Morris & Associates, Midwest City, for plaintiffs/respondents.

Micheal L. Darrah, Paul B. Middleton, Huckaby, Fleming, Frailey, Chaffin & Darrah, Oklahoma City, for defendant/petitioner.

ALMA WILSON, Justice:

The District Court of Cleveland County has certified a question to this Court for Interlocutory Appeal, pursuant to 12 O.S.1991, § 952(b)3. This court previously granted certiorari to answer the interlocutory question of whether the defendant should be allowed to amend its answer to include the affirmative defense of the statute of limitations. 1 We hold that where the petition does not allege dates on which damage occurred, and no prejudice to the opposing party, nor undue delay is shown, a trial court abuses its discretion in refusing to allow a party to amend its answer to include the statute of limitations defense.

The plaintiffs, landowners, filed a petition on May 22, 1990, seeking damages resulting from the operation of the defendant's salt-water disposal well. The petition did not allege any dates on which the damage occurred. The defendant, operator of the salt-water disposal well, filed its answer on October 17, 1990, denying the plaintiffs' allegations and raising three affirmative defenses, not including the statute of limitations. 2 During discovery, the defendant determined the statute of limitations barred most of the damages the plaintiff sought. 3 The defendant then requested to amend its answer to add the statute of limitations defense on November 12, 1991. The trial court denied the defendant's request and certified the question before us for interlocutory appeal. This court stayed the proceeding of the action in the trial court pending appeal.

Historically, Oklahoma has required a defendant to raise the statute of limitations in the responsive pleading or the defense is waived. See, e.g., Reaves v. Turner, 20 Okl. 492, 94 P. 543, 545 (1908); Greene v. Circle Ins. Co., 557 P.2d 422, 424 (Okla.1976); Gragg v. James, 452 P.2d 579, 585 (Okla.1969); Labor Inv. Corp. v. Russell, 405 P.2d 1008, 1014 (Okla.1965). However, in 1984, Oklahoma adopted the Oklahoma Pleading Code which now governs the amendment of pleadings. Title 12 O.S.1991, § 2015(A) provides, "leave [to amend] shall be freely given when justice so requires." The defendant urges this Court to comply with § 2015's mandate.

The plaintiffs contend that 12 O.S.1991, § 2008(C) 4 and 2008(D) 5 prohibit the raising of the limitations defense. Section 2008(C) requires an affirmative defense to be "set forth affirmatively" in a pleading. Section 2008(D) provides that averments to a pleading "are admitted when not denied in the responsive pleading." Therefore, the plaintiffs argue that the defendant's failure to plead the limitations defense constitutes an admission. However, the pleading code must be looked at in its entirety. Section 2008 is governed by § 2015, which provides for the liberal granting of amendments. See Spies v. Gibson, 8 Ohio App.3d 213, 456 N.E.2d 1284, 1286-87 (1982). 6

Furthermore, no other section of the pleading code prevents a defendant from amending a pleading to include an affirmative defense. Section 2012(F) does provide for the waiver of certain defenses if the defense is not raised in the responsive pleading or by appropriate motion. 7 However, § 2012 governs only those defenses that can be raised by motion as well as through pleading. 8 The statute of limitations is not such a defense; it is an affirmative defense which is listed in § 2008(C). Therefore, § 2012 does not bar the limitation defense's introduction through amendment. See Spies, 456 N.E.2d at 1287.

Since the pleading code does not specifically prevent a defendant from amending a pleading to include an affirmative defense, the issue before us becomes whether the trial court abused its discretion in denying the defendant's amendment request. To determine the trial court's authority, the purpose of the code must be examined. The Oklahoma Pleading Code incorporates the notice form of pleading. See Gay v. Ludwick, 766 P.2d 985, 992-93 (Okla.1988). The Oklahoma Pleading Code is based on the Federal Rules of Civil Procedure, and we may look to federal authority for guidance in applying its provisions. Shores v. First City Bank Corp., 689 P.2d 299, 301 (Okla.1984).

The Supreme Court of the United States outlined the policy behind notice pleading in Conley v. Gibson, 355 U.S. 41, 47-48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957):

[S]implified "notice pleading" is made possible by the liberal opportunity for discovery and the other pretrial procedures established by the Rules to disclose more narrowly the disputed facts and issues.... The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.

The provisions of 12 O.S.1991, § 2011, analogous to Fed.R.Civ.P. Rule 11, further strengthen the need for the liberal granting of amendments. Section 2011 provides for sanctions to be imposed on any attorney or client who asserts a claim or defense not well grounded in fact and warranted by existing law. 9 Section 2008 specifically states that § 2011 applies to all forms of pleadings, including answers. 10 Because of § 2011, an attorney will be reluctant to claim the statute of limitations defense unless it appears that sufficient facts exist to support the defense when the answer is filed. Often, the applicability of the statute of limitations is not known until discovery is conducted. If amendments were not given freely, the defendant would be faced with the choice of either pleading a defense not known to be warranted, or failing to assert a defense not apparent from the outset of the claim because of the fear of incurring sanctions. A court can best reach a proper decision on the merits, while at the same time not encouraging baseless claims and defenses, by granting amendment requests at that time when the claim or defense is shown to be warranted by substantiating facts.

Accordingly, both the federal courts and an overwhelming majority 11 of state courts have granted liberal amendment opportunities to defendants requesting to amend an answer to include the statute of limitations defense. 12 Of course, the trial court has always possessed discretion over whether to allow an amendment to a pleading. Cook v. Clinkenbeard, 524 P.2d 27, 29 (Okla.1974). Its decision will not be overturned absent an abuse of that discretion. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330-32, 91 S.Ct. 795, 802-03, 28 L.Ed.2d 77 (1971); Triplett v. Leflore County, 712 F.2d 444, 446-47 (10th Cir.1983). However, the trial court's discretion is limited by the provisions of 12 O.S.1991, § 2015(A), requiring that leave to amend be given freely if justice requires. Marshall v. Allstate Ins. Co., 805 P.2d 689, 691 (Okla.Ct.App.1990).

The Supreme Court of the United States, in Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), balanced the mandate of freely granting amendments with the trial court's authority to deny such requests. The court found "outright refusal to grant leave without any justifying reason appearing for the denial" is an abuse of discretion, but there is no abuse if the court relies on a reason such as "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party ... [or] futility of amendment." Foman at 182, 83 S.Ct. at 230.

Applying the Foman standard to the facts before us, the trial court acted within its discretion only if a justifying reason existed for the denial of the defendant's request. An undue delay is a sufficient reason to deny an amendment request. First City Bank v. Air Capitol Aircraft Sales, 820 F.2d 1127, 1132-33 (10th Cir.1987). 13 However, the delay should be more than a mere time delay. The delay must be considered "undue" before the trial court has the authority to deny an amendment request. See First City Bank, 820 F.2d at 1133. Some of the factors to consider in evaluating whether a time delay is undue are: 1) the number of previous amendment requests; 2) the timing of the request (before or after discovery is closed and a trial date set); and 3) the length of time the movant was aware of the applicability of the amendment.

Nothing in the record indicates that the fifteen month time delay should be considered an "undue" delay. As the defense argues, the amendment request was made while discovery was continuing and no trial date had been set. No previous amendment requests had been made by the defendant. Additionally, the plaintiffs do not allege that the defendant had a dilatory motive in requesting the amendment.

A South Carolina case closely resembles the facts before us. South Carolina's pleading code, like Oklahoma's, is based on the Federal Rules of...

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