Willis v. Sequoyah House, Inc.

• Court: Oklahoma Supreme Court
• Writing for the Court: Opala
• Citation: Willis v. Sequoyah House, Inc., 194 P.3d 1285, 2008 OK 87 (Okla. 2008)
• Decision Date: 23 September 2008
• Docket Number: No. 104,210.,104,210.
• Parties: Doris WILLIS and Jennie Richardson, next of kin of Gatha Elizabeth Cheek, deceased, Plaintiffs/Appellants v. SEQUOYAH HOUSE, INC., d/b/a Sequoyah Manor, Defendant/Appellee.

194 P.3d 1285

2008 OK 87

Doris WILLIS and Jennie Richardson, next of kin of Gatha Elizabeth Cheek, deceased, Plaintiffs/Appellants v. SEQUOYAH HOUSE, INC., d/b/a Sequoyah Manor, Defendant/Appellee.

No. 104,210.

Supreme Court of Oklahoma.

September 23, 2008.

On Certiorari to the Court of Civil Appeals, Div. 2.

¶ 0 In an action by plaintiffs against a nursing home in which it was alleged that the death of a former resident was caused by the nursing home's negligent care, the trial court dismissed the claim without prejudice to its refiling. Plaintiffs recommenced the action by invoking the provisions of 12 O.S.2001 § 100. On the nursing home's motion, the District Court, Sequoyah County, John C. Garrett, trial judge, dismissed the recommenced action. The Court of Civil Appeals affirmed the trial court's order. On certiorari granted upon the plaintiffs' petition.

THE COURT OF CIVIL APPEALS' OPINION IS VACATED AND THE TRIAL COURT'S DISMISSAL ORDER IS AFFIRMED.

Glen Mullins, Durbin, Larimore & Bialick, Oklahoma City, OK, for Appellants.

Millicent L. Hughes, Thayla Painter Bohn, John R. Woodard III, Feldman, Franden, Woodard & Farris, Tulsa, OK, for Appellee.¹

OPALA, J.

¶ 1 The dispositive issue on certiorari is whether the Court of Civil Appeals (COCA) erred in affirming the trial court's order dismissing plaintiffs' recommenced action. We answer in the negative. Although the result we reach is the same as that of COCA, we vacate the latter court's opinion to substitute in its place our own pronouncement.

I THE ANATOMY OF LITIGATION

¶ 2 Doris Willis and Jennie Richardson (plaintiffs), daughters of Gatha Elizabeth Cheek, a former resident of the Sequoyah Manor nursing home, brought a negligence suit against Sequoyah House, Inc. (Sequoyah House or nursing home) on behalf of their deceased mother. At the 26 July 2004 hearing on Sequoyah House's motion for summary judgment, the trial judge orally announced the dismissal of the claim without prejudice to refiling.² The pronouncement's memorial was entered on 12 August 2004. Invoking the provisions of 12 O.S.2001 § 100,³ plaintiffs recommenced their action on 12 August 2005. Summons issued the same day. The process server received the summons with petition from the plaintiffs on 8 February 2006. According to the return of service, Sequoyah House was served on 13 February 2006 by service effected on an office clerk as well as on the administrator of the nursing home. Sequoyah House's motion to quash service of summons and to dismiss the action rests on four grounds: (1) the summons and petition were not personally served upon Sequoyah House's registered service agent but rather were left on one of the desks in its office; the attempted service upon the receptionist was improper because she was not authorized to accept it; (2) the second petition was untimely brought because it should have been filed within one year of the date the initial claim's dismissal was orally pronounced rather than from the date of the order's filing; (3) the service of process on Sequoyah House was untimely because the summons and petition were served 185 days after the petition's filing, instead of within the 180 days prescribed by 12 O.S.Supp.2002 § 2004(I);⁴ (4) plaintiffs failed to attach to the recommenced petition an affidavit of merit that stands mandated by the terms of 63 O.S.Supp.2003 § 1-1708.1E.⁵

¶ 3 According to plaintiffs' brief in opposition to the dismissal quest, (l) the petition was timely refiled in conformity to the provisions of 12 O.S.2001 § 100⁶ because it was brought within one year of the written memorial's entry; (2) the summons and petition were properly served on Sequoyah House's service agent and on its nursing home administrator; (3) the plaintiffs' petition was not a medical malpractice action that would have required a § 1-1708.1E affidavit because the decedent's injury was alleged to have been caused by neglect of lay persons rather than by the performance or omission of a physician's medical procedure; and (4) the plaintiffs had "good cause" for the delay in serving the process.

¶ 4 After a hearing on Sequoyah House's motion, the trial court dismissed the recommenced action without ascribing any basis for its decision.⁷

¶ 5 The Court of Civil Appeals affirmed the trial court's dismissal order on consideration of a single issue deemed dispositive—whether the plaintiffs had good cause for failing to serve the petition and summons within the statutory 180-day time period. COCA's opinion notes that at nisi prius plaintiffs advanced but one argument in support of their theory that good cause was shown for the five-day delay in serving process—a clerical error in the law firm's internal docketing of the case for service of process. Plaintiffs' brief explains that the case was docketed to be re-served in six months, which did not coincide with the statutory 180 days. According to COCA, no explanation was ever offered as to why the summons and petition were not delivered to the process server until the 180th day or why, once delivered there, service was not made until five days later. COCA held that under these circumstances the trial court did not abuse its discretion when ruling that the clerical error relied upon was insufficient to prevent the action's dismissal.

¶ 6 We granted certiorari on plaintiffs' quest for corrective relief and now vacate COCA's opinion although we affirm the trial court's dismissal order tendered for our review by the plaintiffs.

II THE ARGUMENTS ON CERTIORARI

¶ 7 Plaintiffs urge COCA erred in holding the trial court's dismissal, based on a five-day delay in service, was not an abuse of its discretion. According to plaintiffs (a) there is no indication the trial court's ruling was based on late service, (b) the dismissal was most likely based on lack of a statute-required medical affidavit, which was declared unconstitutional shortly after the recommenced action was dismissed;⁸ (c) even assuming there might be a discretionary basis for the dismissal, COCA should have remanded the case to the trial court for the latter's exercise of its discretion in resolving this issue; (d) if the trial court dismissed the claim for want of timely service of process, that decision would have been an abuse of discretion because no prejudice was shown to the defendant by the five-day delay; and (e) a clerical error made by the law firm's staff reveals a valid explanation of a good cause for the delay.

¶ 8 Sequoyah House claims the totality of the circumstances and arguments advanced lead to but a single conclusion. The trial court based its decision on all the arguments raised by the defendant, not merely on plaintiffs' failure to attach an expert's affidavit to their petition. According to Sequoyah House, (a) the only issue before this court is whether the trial court's and COCA's decisions lack a rational basis in the record to support the action's dismissal; (b) a lawyer's failure correctly to docket a deadline because of inadvertent error does not satisfy the § 2004(I) good-cause requirement for delay in service of process; (c) based upon the history of the case, which reflects a pattern of both delay and mistakes on the part of the plaintiffs, the trial court's dismissal cannot be viewed as an abuse of discretion; (d) and Sequoyah House need not show any prejudice from the five-day delay in service because plaintiffs failed to establish that their delay was justified by good cause.

¶ 9 We agree with COCA that the trial court's dismissal order for untimely service of process is error-free. Because we hold this issue is dispositive on our review of the case, we need not deal here with the other challenges to the trial court's decision.⁹

III STANDARD OF REVIEW

¶ 10 By the terms of 12 O.S.Supp. 2002 § 2004(I) a claim may be dismissed for serving a defendant later than 180 days after the petition is filed and the plaintiff fails to show good cause for its late service on the defendant. A dismissal for untimely service is deemed discretionary¹⁰ and will be reviewed upon an abuse-of-discretion standard.¹¹

IV

THE RECORD SUBMITTED FOR APPELLATE REVIEW IS UTTERLY DEVOID OF ANY PROOF OF GOOD CAUSE THAT WOULD OVERCOME THE PRESUMPTION OF CORRECTNESS WHICH ATTACHES TO THE TRIAL COURT'S DISMISSAL

A.

Plaintiffs' Good-Cause Burden Under § 2004(I)

¶ 11 The terms of 12 O.S.Supp.2002 § 2004(I)¹² cast a burden upon the plaintiff who resists dismissal to demonstrate good cause why service on the defendant was not made within the prescribed 180-day period.¹³ Whether good cause has been demonstrated is left largely to the discretion of the trial court.

B. Plaintiffs' Reference to Proof That Was Tendered By Their Nisi Prius Brief Is Not Presented Here In Probative Form

¶ 12 Plaintiffs rely for evidence of good cause upon the recitation of counsel in a nisi prius brief that the failure to effect timely service was caused by a clerical error in the lawyer's office. These references to proof contained in the paperwork of the case do not constitute evidence of good cause. This is so because none comes in a form that can be tendered for admission in a forensic proceeding.¹⁴ The insertion of facts or statements in a court-filed paper is not cast in probative form¹⁵ unless it refers to something that is already in evidence or is reflected by the record to have been presented below in a form that is acceptable for admission as probative material. The record for this appeal is devoid of any supportive proof tendered in the form of testimony, affidavit, or through some acceptable evidentiary substitute.

C. Counsel's Statements Have No Probative Force

¶ 13 But even if the relied-upon recitation in the brief had been offered as proof in some acceptable form, it would have no probative value. This is so because it lacks that explanatory quality which will suffice as proof of good cause. The introduction of a lawyer's unsworn conclusory statements contained in a...