DEBORAH B. BARNES, PRESIDING JUDGE:
¶1 Doyle Springs (Plaintiff) appeals from the district court's order granting the motion to dismiss of Braum's Inc. and WHB Company, Inc. (Defendants). The primary question presented on appeal is whether Plaintiff's electronically filed petition submitted after 5:00 p.m. should be deemed submitted the next business day. We conclude the district court properly answered this question in the affirmative. Although the district court's order states the case is dismissed with prejudice, the district court, in relying upon and incorporating into its order material derived from a document outside the four corners of the petition, effectively converted the motion to dismiss into a motion for summary judgment. Therefore, we modify the district court's order to reflect this conversion, but otherwise affirm.
BACKGROUND
¶2 Plaintiff alleges that on February 1, 2019, while a customer on premises owned and operated by Defendants, he fell and was injured as a result of the failure of Defendants to, among other things, maintain their premises in a reasonably safe condition. Plaintiff set forth these allegations in a petition that the parties agree was "processed and date-stamped on February 2, 2021," more than two years after the incident.
¶3 Defendants subsequently filed a motion to dismiss "pursuant to 12 O.S. § 2012
¶4 In his response to Defendants' motion to dismiss, Plaintiff acknowledges that because the incident occurred on February 1, 2019, he "was required [under the applicable two-year statute of limitations] to file a Petition no later than February 1, 2021," and he similarly acknowledges that if his petition was filed "on February 2, 2021, [then this constitutes] a clear violation of the applicable statute of limitations[.]"
¶5 Although Plaintiff acknowledges his "case filing" was not "processed" until the following day because "the Court Clerk's office was not staffed at 10:32 p.m.," he asserts "[t]he date of filing is the date on which the Petition and Civil Cover Sheet is received in the Clerk's office." Plaintiff asserts the "[Court Clerk's] office has not published any rule to the contrary," and "[t]he guidelines for electronic filing published by the Oklahoma Supreme Court do not say otherwise." Plaintiff further asserts, "The Federal Electronic Filing system" should provide "guidance on this matter," and that system "permits the filing of all documents until 11:59 p.m. on the day [a document] is received in the court clerk's office" -- "[t]he day it is processed by an actual clerk is irrelevant to the date of filing." Plaintiff states, "This Court should emulate the rules of the Federal Courts and hold that all documents emailed prior to 11:59 p.m. on a particular date are deemed filed as of that date." Plaintiff asserts that to hold otherwise would be tantamount to "imposing a rule that neither the Cleveland County Court Clerk's office nor the Supreme Court of Oklahoma has imposed or even addressed."
¶6 In their reply, Defendants do not dispute Plaintiff emailed his petition at 10:32 p.m. on February 1, 2021; however, they emphasize that this electronic submission occurred more than five-and-a-half hours "after the regularly scheduled closing time of the Cleveland County Court Clerk on February 1, 2021. Accordingly, Plaintiff's Petition was not file received by the Cleveland County Court Clerk, file-stamped, or paid for until February 2, 2021." Defendants also take issue with Plaintiff's assertion that the Oklahoma Supreme Court has never addressed this issue. Defendants state that the "Oklahoma Supreme Court has addressed the issue of e-filing and the timing of the same in Oklahoma Rules for E-filing in Selected Pilot Courts," which Defendants also refer to as SCAD-2012-36. Defendants assert that "according to Oklahoma Rules for E-filing for Selected Pilot Courts, the Petition was not submitted on February 1, 2021, but February 2, 2021. Accordingly, the Pleading was not deemed filed until February 2, 2021[.]"
¶7 Defendants further point out in their reply that although, as a result of the COVID-19 pandemic, the Cleveland County Court Clerk's office closed in March 2020 for in-person filing for non-emergency matters, an amended order was issued in April 2020 lifting these restrictions. As stated by Defendants, at least by June 12, 2020 -- more than seven months before the filing at issue in this case -- "normal operations ensued." Moreover, Defendants assert that "[n]o further orders make any mention of specific restrictions or even mention the ability to file electronically." Defendants assert:
Plaintiff had ample opportunity to file his Petition in person. There were no restrictions made on the Court Clerk's office on the day in which the Petition was emailed for filing. As there was no reason for delay, Plaintiff's Petition was untimely, and therefore should be dismissed as a matter of law.
¶8 Finally, Defendants cite to 12 O.S. 2011 § 2006
¶9 In its order filed in October 2021, the district court granted the motion to dismiss. The court stated that the "Cleveland County Court Clerk was fully open and operational on the days in question during its regularly scheduled hours with few to no COVID-19 restrictions." The court also cited to the Oklahoma Supreme Court's order pertaining to E-filing cited by Defendants, and noted that pursuant to the language in that order, Plaintiff's petition could not be deemed filed until February 2, 2021. The court also cited to § 2006(A)(1) in support of its order of dismissal.
¶10 From the district court's order granting Defendants' motion to dismiss, Plaintiff appeals.
STANDARD OF REVIEW
¶11 Title 12 O.S. 2011 § 2012
If, on a motion asserting the defense numbered 6 of this subsection to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and all parties shall be given reasonable opportunity to present all material made pertinent to the motion by the rules for summary judgment.
Although the district court's order states "the Motion to Dismiss is granted" and "[t]his case is dismissed with prejudice to refiling," the court relied upon and incorporated into its order material derived from an exhibit outside the four corners of the petition. In particular, the court took into account the timing of the electronic submission of the petition reflected in a purported copy of Plaintiff's email to the court clerk attached to Plaintiff's response to the motion to dismiss. Although Defendants, in their reply, do not dispute that Plaintiff emailed the petition to the court clerk at the time reflected in the email, the email, nevertheless, does not fall within an exception to the rule that "a motion to dismiss for failure to state a claim upon which relief may be granted, as provided by [§ 2012(B)(6)], is to be treated as a motion for summary judgment when matters outside of the pleadings are presented in support of the motion and those extra-pled matters are not excluded by the trial court when the motion is considered." State ex rel. Wright v. Okla. Corp. Comm'n, 2007 OK 73170 P.3d 1024See also Wagoner Cnty. Rural Water Dist. No. 2 v. Grand River Dam Auth., 2010 OK CIV APP 95241 P.3d 1132cert. denied ("Where, as here, evidentiary materials are attached to a section 2012(B)(6) motion or response, a court must convert the motion into one for summary judgment." (emphasis added) (citation omitted)).
¶12 The exceptions are: (1) incorporation by reference, codified in 12 O.S. 2011 § 201012 O.S. 2011 § 2202Gaylord Ent. Co., 1998 OK 30Cf. Tucker v. Cochran Firm-Crim. Def. Birmingham L.L.C., 2014 OK 112341 P.3d 673not converted into one for summary judgment." (footnote omitted) (emphasis in original)).
¶13 Moreover, we are unable to conclude the time of submission set forth in the copy of the email -- submitted via "Gmail" -- is a fact "[c]apable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned," § 2202(B)(2), nor is there any indication it is a fact "[g]enerally known within the territorial jurisdiction of the trial court," § 2202(B)(1). The time of submission set forth in the email is not reflected elsewhere in the record, nor is it reflected on the docket sheet. Simply stated, we are unable to conclude that the fact in question -- supported as it is merely by the date and time set forth on a copy of a private email -- is not subject to reasonable dispute, regardless of Defendants' subsequent decision to not dispute the asserted fact in their reply. Cf. Farley, 2020 OK 30res judicata affirmative defense using facts known by judicial notice without requiring the defense to be raised by answer or converting the motion to summary judgment." (footnote omitted)).
¶14 Because neither exception applies here,
When a district court does this, it must provide the parties with notice so that all factual allegations may be met with countervailing evidence. However, if a party is not prejudiced by the conversion, the court of appeals should proceed with the appeal, relying upon summary judgment standards,
Burnham v. Humphrey Hosp. Reit Tr., Inc., 403 F.3d 709, 713 (10th Cir. 2005). See also Nkemakolam v. St. John's Mil. Sch., 876 F. SupP.2d 1240, 1244 (D. Kan. 2012) ("If neither party is prejudiced, a court may convert a motion to dismiss to a motion for summary judgment without further notice or opportunity for additional briefing."). Plaintiff cannot claim that the absence of notice of the conversion prejudiced him because the exhibit in question was filed by Plaintiff as an attachment to his own response. Accord Lamb, 391 F.3d at 1137 n.3 (10th Cir. 2004) ("The district court did not give notice of its intent to convert [the defendant's] Rule 12(b)(6) motion, but [the plaintiff] does not and cannot claim that the absence of notice prejudiced him" because he "not only failed to object to the exhibits attached to [the defendant's] motion to dismiss, but [he] also filed his own exhibits in response."). Moreover, the fact in question is not disputed and no further opportunity is needed to present material on the timing of the submission of the petition. See § 2012(B) ("[A]ll parties shall be given reasonable opportunity to present all material made pertinent to the motion by the rules for summary judgment.").
¶15 Turning to the standard applicable to summary judgment, "[w]hether summary judgment was properly entered is a question of law which we review de novo." Payne v. Kerns, 2020 OK 31467 P.3d 659Id. (citation omitted). See also Pan v. Bane, 2006 OK 57141 P.3d 555
ANALYSIS
¶16 Consistent with certain emergency orders issued by the Oklahoma Supreme Court in 2020,
¶17 The Official Court Rules of the Twenty-First Judicial District (Local Court Rules)
These rules are intended to preempt any General or Administrative Order currently in effect having the same or substantially similar subject matter as of the effective date of these rules. General or Administrative Orders currently in effect that do not deal with the same or substantially similar subject matters remain in full force and effect.
(Emphasis added.) Moreover, Local Court Rule No. 1 provides:
Compliance with all statutes including but not limited to Rules for District Courts of Oklahoma . . . shall be mandatory. The Rules for the District Courts of Oklahoma . . . shall guide any matter of practice or procedure not specifically included in the following rules. The Rules for the Twenty-First Judicial Districts . . . are in addition to and supplemental to the Rules for the District Courts and all other applicable statutes.
¶18 As set forth in Local Court Rule No. 3, the above-described guidelines in the Administrative Order for the filing of electronic submissions in the District Court of Cleveland County "remain in full force and effect." However, the Administrative Order is silent regarding the issue of the date of filing of electronic submissions, which, unlike in-person filings, can be electronically submitted at any time. Because, as set forth in the Local Court Rules, "[t]he Rules for the District Courts of Oklahoma . . . shall guide any matter of practice or procedure not specifically included" in the Court Rules (or in General or Administrative Orders "in full force and effect") of the Twenty-First Judicial District, we are guided by Rule 2.1 of the Rules for the District Courts of Oklahoma, 12 O.S. Supp. 2013, ch. 2, app., which provides, in part, as follows:
a. Electronic Filing. Whenever these rules require a pleading, motion, document, or other instrument to be filed or delivered to the court clerk, such requirement may be satisfied by electronic filing as authorized by the Rules for Electronic Filing in the Oklahoma Courts, and any other applicable statute or court rule. Whenever these rules reference the "Rules for Electronic Filing in the Oklahoma Courts," such reference shall mean the "Oklahoma Rules for E-Filing in Selected Pilot Courts" (See Supreme Court Administrative Directive No. SCAD-2012-36, RE Rules for Electronic Filing in the Oklahoma Courts Selected as Pilot Courts, 2012 OK 61
b. Electronic Service. Whenever these rules require a pleading, motion, document or other instrument to be served, mailed, transmitted, or issued, such requirement may be satisfied by electronic methods as authorized by the Rules for Electronic Filing in the Oklahoma Courts, and any other applicable statute or court rule. As used in these rules, the term "mail" "mailing" or "mailed" shall include transmission by electronic mail, when authorized by the Rules for Electronic Filing in the Oklahoma Courts, and any other applicable statute or court rule.
¶19 The Rules for Electronic Filing in the Oklahoma Courts referenced in District Court Rule 2.1 are the same rules referenced by Defendants as well as by the district court in its order. In In re Rules for Electronic Filing in Oklahoma Courts Selected as Pilot Courts, 2012 OK 61
b. When an E-Filed Document Is Deemed Filed.
1. District Courts, Court of Civil Appeals, and Oklahoma Supreme Court. A Document may be submitted through the OUCMS at any time of day, but any E-Document submitted after 5 p.m. will be deemed submitted the next business day. When the E-Document is accepted by the court clerk, it shall be deemed filed on the date and time the E-Document, along with any E-Filed attachments, was submitted to the OUCMS. The confirmation receipt of submission and the confirmation receipt of acceptance shall serve as proof of the filing. Central Time shall be used to determine the filing date and time for purposes of this Rule.
¶20 Although SCAD-2012-36 is intended to "control with respect to those matters filed using the Oklahoma Unified Case Management System (OUCMS),"shall supplement but not replace the existing statutes and court rules regulating the practice and procedure [of electronic filing] in the courts of Oklahoma."
¶21 Pursuant to the directives in SCAD-2012-36 that an "E-Document submitted after 5 p.m. will be deemed submitted the next business day," and that this date of submission "shall be" the date on which the document is deemed filed, we conclude the district court properly determined that Plaintiff's submission of the petition at 10:32 p.m. on February 1, 2021, must be deemed filed the following business day.
¶22 AFFIRMED AS MODIFIED.
FISCHER, C.J., and HIXON, J., concur.