Thacker v. Randy Cowling, Bailey Dabney, Salesha Wilken, Newspaper Holdings, Inc.

• Citation: 473 P.3d 518
• Decision Date: 08 July 2019
• Docket Number: Case No. 117,479
• Parties: Kirt THACKER, Plaintiff/Appellant, v. Randy COWLING, Bailey Dabney, Salesha Wilken, Newspaper Holdings, Inc. (d/b/a) The Claremore Daily Progress, Community Newspaper Holdings, Inc. (d/b/a The Claremore Daily Progress ), Defendants/Appellees.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

473 P.3d 518

Kirt THACKER, Plaintiff/Appellant,
v.
Randy COWLING, Bailey Dabney, Salesha Wilken, Newspaper Holdings, Inc. (d/b/a) The Claremore Daily Progress, Community Newspaper Holdings, Inc. (d/b/a The Claremore Daily Progress ), Defendants/Appellees.

Case No. 117,479

Court of Civil Appeals of Oklahoma, Division No. 2.

FILED JULY 8, 2019
FILED JUNE 9, 2020
Mandate Issued: July 29, 2020
Released for Publication: July 29, 2020

Brendan M. McHugh, Dana Jim, Claremore, Oklahoma, for Plaintiff/Appellant

Douglas S. Dodd, Michael Minnis, DOERNER, SAUNDERS, DANIEL & ANDERSON, L.L.P., Tulsa, Oklahoma, for Defendant/Appellee

OPINION BY JOHN F. FISCHER, PRESIDING JUDGE:

¶1 This Supplemental Opinion is issued pursuant to the Supreme Court's March 9, 2020 Order "to address the issue of whether the trial court properly dismissed [Kirt Thacker's] November 30, 2015, petition with prejudice as barred by the applicable statute of limitations." The July 28, 2018 judgment at issue granted a motion to quash summons and a motion to dismiss for failure to state a claim based on the statute of limitations. Those motions were filed at the outset of the case by the Newspaper Defendants, Randy Cowling, Bailey Dabney, Salesha Wilken, Newspaper Holdings, Inc., and Community Newspaper Holdings, Inc.

¶2 The motion to quash argued that service of summons more than one hundred and eighty days after the case was filed was prohibited by section 2004(I) of Title 12. The district court agreed and dismissed Thacker's case without prejudice.

¶3 The Newspaper Defendants' motion to dismiss was filed at the same time, but as an alternative to the relief sought in Defendants' motion to quash summons. The motion to dismiss argued that Thacker's November 2015 petition had been filed after expiration of the applicable statute of limitations. The district court granted this motion as well but, in doing so, dismissed Thacker's case with prejudice.

¶4 The trial court did not have jurisdiction to resolve the statute of limitations issue. Any attempted dismissal of Thacker's November

473 P.3d 521

30, 2015 petition with prejudice based on the statute of limitations was not proper.

BACKGROUND

¶5 This case concerns a grand jury petition filed in the district Court on August 26, 2013. That petition sought to investigate Thacker for alleged improper bid-splitting and unauthorized use of county assets for private purposes. At that time, Thacker was a county commissioner. Thacker denies the wrongdoing alleged in the grand jury petition. According to Thacker, the grand jury proceeding was also the subject of several defamatory newspaper articles written and/or published by the Newspaper Defendants. Thacker alleged that Cowling was the editor of the newspaper, Dabney was the publisher and Wilken was a reporter for the newspaper and the author of the articles.

¶6 Thacker filed his verified petition in this case on November 30, 2015. In general, Thacker alleged that the Newspaper Defendants conspired with each other and others to file and circulate a false grand jury petition in order to destroy his reputation and ruin him politically. Thacker also alleged that the Newspaper Defendants defamed him and placed him in a false light by publishing false newspaper articles about him and the grand jury proceeding. Thacker's November 30, 2015 petition asserted six tort theories of liability: (1) libel, (2) slander, (3) filing a false grand jury petition in violation of 38 O.S.2011 § 108, (4) abuse of process, (5) false light invasion of privacy, and (6) civil conspiracy.

¶7 Thacker's petition also alleged that he did not discover the Newspaper Defendants' tortious conduct until November 30, 2014. Specifically, Thacker alleged that until that date he did not learn that Wilken had been involved in circulating the grand jury petition "on behalf of herself, and her co-conspirators, including her co-defendants sued herein." Finally, Thacker alleged that Wilken not only wrote defamatory articles, but also that she conspired with the other defendants to write the articles to further the circulation of the false grand jury petition.

¶8 Although Thacker filed this action on November 30, 2015, within one year after the alleged discovery of the Newspaper Defendants' involvement, he did not immediately serve Defendants as required by 12 O.S. § 2004(I) : "service of process [shall be] made upon a defendant within one hundred and eighty (180) days after the filing of the petition ...." When Thacker did serve the Newspaper Defendants more than two years later, the Newspaper Defendants moved to quash the summons. The Newspaper Defendants argued that because Thacker had failed to comply with section 2004(I), his petition was deemed dismissed.¹

¶9 The district court held that the 2017 version of section 2004(I) required Thacker to serve the Newspaper Defendants within one hundred and eighty days after he filed his petition on November 30, 2015, or show good cause within that same period why he was not able to do so. The district court found that Thacker had done neither and, therefore, Thacker's petition was "deemed dismissed" as of May 30, 2016, one hundred and eighty days after Thacker filed his petition. The district court granted the Newspaper Defendants' motion to quash and dismissed Thacker's petition without prejudice in its July 27, 2018 judgment.

¶10 Our original Opinion held that the 2013 version of section 2004(I) was the applicable statute and, pursuant to that statute, Thacker was not required to make his showing of good cause within the one hundred and eighty days following the filing of his petition. Nonetheless, we affirmed the district court's dismissal without prejudice. We held that Thacker failed to provide any evidence on which the district court could find that good cause existed for Thacker's failure to

473 P.3d 522

serve the Newspaper Defendants within the initial one hundred and eighty days. We found that issue dispositive. Consequently, we did not address additional issues concerning the statute of limitations or Thacker's ability to refile his action that were addressed by the district court.

¶11 For example, in addition to their motion to quash, the Newspaper Defendants also filed a motion to dismiss pursuant to 12 O.S.2011 § 2012(B)(6). The Newspaper Defendants argued that the statute of limitations for defamation (one year - 12 O.S. Supp. 2017 § 95(4) ), and false light invasion of privacy (two years - 12 O.S. Supp. 2017 § 95(3) ), had expired at the latest two years after the August 2013 grand jury petition was filed, more than a year before Thacker filed his November 2015 petition. The Newspaper Defendants' motion to dismiss did not address the issue of whether Thacker's statutory claim for violation of 38 O.S.2011 § 108 was subject to the three-year limitation of section 95(2) ("action upon a liability created by statute"). Thacker's petition was filed within three years after the August 2013 grand jury petition was filed.

¶12 The Newspaper Defendants also generally argued in support of both motions that Thacker's time to refile his petition pursuant to 12 O.S.2011 § 100 expired on May 30, 2016, one year after his petition was deemed dismissed as a matter of law for failure to make timely service, and that no second petition had been filed within that time. In paragraph 2 of the district court's July 27, 2018 judgment, the court stated: "Thacker's November 30, 2015 Petition was deemed dismissed without prejudice on May 30, 2016 by operation of law; that Thacker failed to commence a new action within one (1) year from May 30, 2016 dismissal without prejudice."

¶13 The district court granted the Newspaper Defendants' motion to dismiss, but this time, dismissed Thacker's petition with prejudice.² In paragraph 3 of the court's judgment, the district found that the one and two year statutes of limitations for libel and false light invasion of privacy actions began to run from the August 26, 2013 filing of the grand jury petition. The court concluded that Thacker's November 30, 2015 petition was filed outside the applicable statute of limitations.

ANALYSIS

¶14 In any action, a defendant may voluntarily appear, 12 O.S.2011 2004(C)(5), or waive any defects in the service of summons. 12 O.S.2011 § 2012(F)(1)(b). The Newspaper Defendants did not waive their right to proper service. They filed a special appearance and raised the service issue in their initial pleading. The district court's judgment granting that motion and dismissing Thacker's petition without prejudice terminated the action. The additional rulings were unnecessary and unauthorized. See Firestone Tire & Rubber Co. v. Barnett , 1970 OK 93, 475 P.2d 167 (after the dismissal of an action, the district court is without further jurisdiction).

¶15 Firestone involved a voluntary dismissal without prejudice filed by the plaintiff pursuant to 12 O.S. § 684 (superceded eff. Nov. 1, 2004). The Supreme Court found that the dismissal complied with the statute and was effective to "terminate" the jurisdiction of the district court. Firestone , 1970 OK 93, ¶ 22, 475 P.2d 167. With regard to the district court's jurisdiction, we find no material difference between a voluntary dismissal without prejudice filed by a plaintiff and a...