HOUGH OILFIELD SERVICE, INC. v. NEWTON

2017 OK CIV APP 31, 396 P.3d 230, 2016 WL 9108464, 2016 Okla. Civ. App. LEXIS 72
CourtCourt of Civil Appeals of Oklahoma
DecidedSeptember 22, 2016
DocketCase Number: 113834
StatusPublished
Cited by11 cases

This text of 2017 OK CIV APP 31 (HOUGH OILFIELD SERVICE, INC. v. NEWTON) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
HOUGH OILFIELD SERVICE, INC. v. NEWTON, 2017 OK CIV APP 31, 396 P.3d 230, 2016 WL 9108464, 2016 Okla. Civ. App. LEXIS 72 (Okla. Ct. App. 2016).

Opinion

JANE P. WISEMAN, PRESIDING JUDGE:

¶ 1 Appellant Hough Oilfield Service, Inc., appeals a trial court order dismissing its suit against Appellees Linda Newton and Randall Newton. After review, we affirm the dismissal as to Randall Newton, reverse the dismissal as to Linda Newton, and remand for further proceedings consistent with this Opinion.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 While employed with Appellant, Linda embezzled company money for personal use. The State of Oklahoma charged her with two counts of embezzlement and one count of forgery. After she pled guilty on all counts, the court sentenced her on June 21, 2013, to a suspended sentence of seven years in the custody of the Oklahoma Department of Corrections, the first year to be spent under house arrest. The court also ordered her to make restitution in the amount of $175,787.05.

¶3 Appellant filed suit against Appellees on March 21, 2012, alleging Linda embezzled at least $171,000 1 and that the monies unjustly enriched Randall Newton. Appellant did not, however, serve any summons on Appellees. 2 In response to a motion to compel discovery, Appellees entered a special appearance and moved to dismiss the suit for failure to serve summons within 180 days as required by statute. On July 3, 2014, the trial court granted the motion and dismissed the ease without prejudice deeming the case dismissed as a matter of law on September 18, 2012, the 181st day after Appellant filed suit.

¶ 4 On July 14, 2014, eleven days after the dismissal, Appellant re-filed its suit. Appel-lees filed a motion to dismiss, alleging the statute of limitations period barred the second action. The trial court noted the case was dismissed as a matter of law on September 18, 2012, and held that because the limitations period had lapsed, the savings statute— 12 O.S.2011 100 — required Appellant to refile its suit within one year of the deemed dismissal. Appellant had not refiled the action by September 18, 2013, and the trial court held the action was time-barred and dismissed the case with prejudice.

*232 ¶ 5 Appellant.then filed a motion for new trial contesting the trial court’s interpretation of the case law regarding a deemed dismissal date and asserting the trial court should apply the longer limitations period applicable to individuals “incarcerated or under the supervision of a state, federal or local correctional facility.” The trial court rejected these arguments and denied the motion for new trial. Appellant now appeals from the dismissal of the second lawsuit.

STANDARD OF REVIEW

¶ 6 We are asked to determine the relationship and effect of Oklahoma Statutes Title 12, 2004(1) 3 and 100 regarding an action’s deemed dismissal after the 180-day limit for serving summons has passed. “Statutory interpretation, entailing a legal issue, demands a de novo review standard, i.e. a review in which an appellate court has plenary, independent and non-deferential authority to reexamine a trial' court’s legal rulings.” Barnhill v. Multiple Injury Trust Fund, 2001 OK 114, ¶ 8, 37 P.3d 890 (footnotes ómitted). We must also address whether Appellant’s claims are time-barred pursuant to 12 O.S.2011 96. “Although limitations issues may involve mixed questions of fact and law, generally, they are reviewed in this Court as questions of law.” Woods v. Prestwick House, Inc., 2011 OK 9, ¶ 14, 247 P.3d 1183.

ANALYSIS

¶ 7 Appellant lists two grounds for reversal — trial court error in its application of the savings statute to the re-filed claim and the trial court’s failure to apply the five-year limitation period set forth in '12 O.S.2011 96(A)(7). ’ '

I.

¶8 Oklahoma law allows a party to bring a new action within one year of the plaintiff failing “otherwise than upon the merits.” 12 O.S.2011 100. Provided the initial action was timely filed, this “savings statute” allows a plaintiff to refile a previously dismissed suit within a year of the failure, even though the limitation period has expired.

¶ 9 The trial court found the applicable statute of limitations was 12 O.S.2011 96(A)(3), which provides in relevant part that “an action for taking, detaining, or injuring personal property, including actions for the specific recovery of personal property; an action for injury to the rights of another, not arising on contract” must be brought within two years. The court held that the original petition, filed March 12, 2012, was timely filed pursuant to 95(A)(3) and Appellant had 180 days from the filing of the petition to serve Appellees. Because Appellant did not serve Appellees within 180 days, the case was deemed dismissed as of September 18, 2012, giving Appellant until September 18, 2013, to refile its petition pursuant to 100. Appellant did not refile its petition until July 14, 2014, and the trial court, concluding Appellant’s claims were time-barred, dismissed the refiled case.

¶ 10 We conclude the trial court correctly applied 12 O.S.2011 95(A)(3) to Appellant’s claims against Randall Newton and correctly held these claims could not be “saved” by 12 O.S.2011 100 and were thus time-barred. For the reasons discussed in Part II of this Opinion, we conclude the five-year limitations period in 12 O.S.2011 95(A)(7), not the two-year period in 12 O.S.2011 95(A)(3), is the applicable .statute of limitations for Appellant’s claims against Linda Newton and this period had not expired when Appellant filed its second petition.

¶ 11 When an action is filed and the required service of process-is not effected within 180 days of the filing, “the action shall be deemed to have been dismissed without prejudice as to that defendant.” 12 O.S.2011 2004(1). The statute does not address the date the action is deemed dismissed, but the Supreme Court has provided clear guidance.

¶ 12 If a defendant is not served within the specified 180-day period, the action is deemed dismissed as of the 181st day. Moore v. Sneed, 1992 OK CIV APP 107, ¶ 3, 839 *233 P.2d 682 (citing a Supreme Court order involving the same parties in Case No. 74,354). In Moore, the plaintiff failed to serve the defendant within 180 days of the petition’s filing. Id, 1. The trial court dismissed the action. Id. Arguing the date of the dismissal should be 180 days after the petition’s filing, not the date of the dismissal order, defendant filed a petition for certiorari in the Oklahoma Supreme Court on a certified interlocutory order. Id. 2.

¶ 13 In its order in Moore, the Supreme Court noted that, due to an amendment to 12 O.S. 2004(1), the trial court múst provide the plaintiff an opportunity to show good cause for the lack of service. Id. 3. If plaintiff does not show good cause, the court considers the action “dismissed, as a matter of law, effective on the 181st day following the filing of the petition.” Id. Although the court retains jurisdiction to make the good cause determination, if no good cause is shown, the dismissal date is deemed the day after the end of the 180-day period.

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Bluebook (online)
2017 OK CIV APP 31, 396 P.3d 230, 2016 WL 9108464, 2016 Okla. Civ. App. LEXIS 72, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hough-oilfield-service-inc-v-newton-oklacivapp-2016.