Watford v. West

• Decision Date: 14 October 2003
• Docket Number: No. 99,126.,99,126.
• Citation: 78 P.3d 946,2003 OK 84
• Parties: John Jerod WATFORD, Plaintiff/Appellant, v. Roger WEST and David West, Defendants/Appellees, and Paul Tinkham and Barbara Tinkham, Individually, and as Parents and Next Friends of Aaron Tinkham, a minor, Defendants.
• Court: Oklahoma Supreme Court

78 P.3d 946

2003 OK 84

John Jerod WATFORD, Plaintiff/Appellant, v. Roger WEST and David West, Defendants/Appellees, and Paul Tinkham and Barbara Tinkham, Individually, and as Parents and Next Friends of Aaron Tinkham, a minor, Defendants.

No. 99,126.

Supreme Court of Oklahoma.

October 14, 2003.

Lynn B. Mares, Brent L. Neighbors, Abel, Musser, Sokolosky, Mares & Kouri, Oklahoma City, OK, for Appellant.

Diane M. Black, Loyal J. Roach, Steven V. Buckman, Buckman & Roach, Tulsa, OK, for Appellees.

SUMMERS, J.

¶ 1 The issue is whether a petition in the District Court may be amended to show the changed status of a plaintiff who was a minor when the suit was begun, but who became of age during its pendency, where the plaintiffs and their attorneys did not correct their petition to show the change until after the statute of limitations had expired. We conclude that under the circumstances here such an amendment should have been allowed, and the case should not have been dismissed.

¶ 2 The parents of John Jerod Watford, a minor child, alleged that he was negligently injured. They filed an action in the District Court styled "John Watford and Jackie Watford Individually and as Parents and Next Friends of John Jerod Watford, a Minor". On December 15, 2000, while the action was pending, the child attained the age of eighteen years. No filing was made in the District Court to inform the District Court of the child's age or to modify the style of the action.

¶ 3 Plaintiffs dismissed their action without prejudice in June 2001, and then filed it again in June 2002 within the one year allowed by 12 O.S. § 100. When the action was filed the second time the style of the petition was the same as before. Then on August 2 and 12, 2002 Plaintiffs' attorneys, apparently having realized that John Jerod was now a legal adult, filed amended Petitions naming as plaintiffs "John Jerod Watford, John Watford, and Jackie Watford."

¶ 4 Summons issued and defendant, Roger West, was served with a copy of the Second Amended Petition filed August 12th. West then filed a motion to dismiss, and argued that John Jerod Watford's action was untimely-that it had to have been filed by December 15, 2001 to satisfy the applicable statute of limitations. West argued that December 15, 2001 was the date John Jerod turned nineteen years of age, and that 12 O.S.2001 § 96 barred the action as re-filed in June 2002. The District Court granted the motion to dismiss.

¶ 5 Summons issued and a copy of the Second Amended Petition was also served on the defendant, David West. He filed a similar motion to dismiss, and it too was granted by the District Court. John Jerod Watford filed in the District Court a dismissal of his claim against the Tinkham defendants, but appealed the dismissal of his claim against the Wests.

¶ 6 The trial court dismissed the parents' claims, and that dismissal is not challenged in this proceeding. No claim remains pending in the District Court. This Court retained John Jerod Watford's appeal and ordered the parties to file supplemental briefs.

¶ 7 John Jerod was under the age of eighteen years when the alleged injury occurred. By statute, a minor, unless otherwise statutorily specified, is a person under the age of eighteen years. 15 O.S.2001 § 13.¹ Generally, a person under legal disability at the time an action accrues may bring an action within one year after the disability is removed. 12 O.S.2001 § 96.² The parties do not dispute the applicability of this statute. They agree that John Jerod was under the age of eighteen years when the action accrued. They differ as to the legal effect of the petition and amended petitions filed in June and August of 2002.

¶ 8 Every action shall be prosecuted in the name of the real party in interest. 12 O.S.2001 § 2017. No party disputes that John Jerod was a party to the first action.

¶ 9 In Weeks v. Cessna Aircraft Co., 1994 OK CIV APP 171, 895 P.2d 731, (approved for publication by order of the Supreme Court), a parent filed an action on behalf of the estate of her deceased daughter. However, another of her daughters was appointed special administratrix of that estate. The defendants made their defense based upon there being an improper party plaintiff, failure to state a claim upon which relief may be granted, and a statute of limitations. The trial court denied the plaintiff's motion to substitute the special administratrix as the plaintiff and gave the defendants summary judgment. Id.895 P.2d at 732.

¶ 10 In reversing the trial court's decision on substitution of the plaintiff the appellate court then explained that substitution of parties had been liberally recognized in Oklahoma.

Substitution of plaintiffs has been liberally granted in Oklahoma where mistake or inadvertent error has caused the improper party to file an action. Saint Paul Fire and Marine Insurance Co. v. Spann, 355 P.2d 567 (Okla.1960). In Saint Paul Fire, the court explained that "`courts should be inclined to disregard subtleties and answer technical objections to the sufficiency of a pleading in an honest effort to determine the real issues on their merits, and to try and do substantial justice to the litigants before them.'" Id. at 570 (quoting Mostenbocker v. Shawnee Gas & Elec. Co., 49 Okla. 304, 152 P. 82, 85 (1915)). Furthermore, "`where there is no change in the cause of action and the party substituted bears some relation of interest to the original party and to the action, the substitution may be allowed, as where the substitution is of one having the legal right to sue instead of one improperly named as plaintiff.'" Id. at 571 (quoting Dierks v. Walsh, 196 Okla. 372, 165 P.2d 354 (1946)).

Weeks v. Cessna Aircraft Co., 895 P.2d at 733.

The court then explained the application of 12 O.S. § 2017:

Oklahoma's interpretation of section 2017 is fully consistent with the construction commonly placed on Federal Rule of Civil Procedure 17, from which section 2017 derives. The advisory committee notes to the 1966 amendment to Rule 17 describe the rationale for permitting liberal substitution of the plaintiff for the real party in interest in actions brought under the Federal Rules.

The provision that no action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed, after the objection has been raised, for ratification, substitution, etc., is added simply in the interests of justice. (Emphasis added).

F.R.C.P. 17, Advisory Committee Notes, 1966 Amendment. The committee notes stress that the provision "is intended to prevent forfeiture when determination of the proper party to sue is difficult or when an understandable mistake has been made." Id. The committee explains that "the modern function of the rule in its negative aspect is simply to protect the defendant against a subsequent action by the party actually entitled to recover." Id. Where the defendant's interests are protected, substitution should be allowed.

Weeks, 895 P.2d at 733

¶ 11 As stated in Weeks, the Oklahoma Legislature used Federal Rule 17 when creating 12 O.S. § 2017. The Committee Comment to § 2017 notes that "Subsection A of Section 2017 is identical to Federal Rule of Civil Procedure 17(a) except that the reference to actions brought in the name of the United States in the third sentence of Federal Rule 17(a) is deleted as unnecessary." 12 O.S.A. § 2017 (West 1993).³ Due to the identical nature of Rule 17(a) and § 2017(a) a federal court construction of that Rule prior to its Oklahoma adoption is informative for our analysis here:⁴

The purpose of (Rule 17(a)) is to prevent forfeiture when determination of the proper party to sue is difficult or when an understandable mistake has been made. Thus its main thrust is to allow a correction in parties after the statute of limitations has run, despite the valid objection that the original action was not brought by the real party in interest.

3A Moore's Federal Practice P, 17.15-1, at 17-182 (2d ed.1979) (footnotes omitted). See also Audio-Visual Mkt. Corp. v. Omni Corp., 545 F.2d 715, 719 (10th Cir.1976); Unilever (Raw Materials) Ltd. v. M/T Stolt Boel, 77 F.R.D. 384, 389 (S.D.N.Y.1977); American Dredging Co. v. Federal Ins. Co., 309 F.Supp. 425, 429 (S.D.N.Y.1970); Advisory Committee Notes on the 1966 Amendments, 39 F.R.D. 69, 84-85 (1966). The defendants would not be prejudiced in their defense of this action by changing the named plaintiff. They knew the persons and the issues involved before the statute of limitations ran. See Metropolitan Paving Co. v. International Union of Operating Eng'rs, 439 F.2d 300, 306 (10th Cir.), cert. denied, 404 U.S. 829, 92 S.Ct. 68, 30 L.Ed.2d 58 (1971). Moreover, the failure to use Dominga's name in the first place is an understandable and excusable mistake. See Crowder v. Gordons Transps., Inc., 387 F.2d 413, 418-19 (8th Cir.1967). Cf. Hobbs v. Police Jury, 49 F.R.D. 176, 180 (W.D.La.1970).

Garcia v. Hall, 624 F.2d 150, n. 3, 151 (10th Cir.1980), (emphasis added).

The Tenth Circuit is not alone in explaining that Rule 17 allows substitution of a party although a statute of limitations has run. A well known authority states as follows:

The final sentence in Rule 17(a) is designed to avoid forfeiture and injustice when an understandable mistake has been made in selecting the party in whose name the action should be brought. Thus, a correction in parties is permitted even after the statute of limitations governing the action has run. This provision reflects the general policy of the draftsmen of the federal rules that the choice of a party at the pleading stage ought not have to be made at the risk of a final dismissal of the action should it later appear that there had been an error. In this respect the rule is consistent with the liberal relation back provision in Rule 15(c). Indeed, Rule 15(c) has been used in conjunction with Rule 17(a) to enable an amendment

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