OSCN Found Document:MCBEE v. SHANAHAN HOME DESIGN
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
Facts and Procedural History
Introduction
¶1 The news of the spread of Covid-19 infections in the United States created a time of extreme uncertainty and confusion. On the evening of March 11, 2020, the Oklahoma City Thunder and the Utah Jazz were about to "tip-off" an NBA basketball game in Chesapeake Arena, when the first active case of Covid-19 was discovered in Oklahoma.1 Panic, fear, and anger were the immediate responses after the public learned Covid-19 was in Oklahoma. These were unprecedented times.
¶2 The day following the cancellation of the Thunder-Jazz game, Governor Stitt issued two Executive Orders which, inter alia: (1) directed state agencies to take necessary steps to protect against Covid-19, including placing limits on public access to state facilities; and (2) declared an emergency in all seventy-seven counties because of the impending threat of Covid-19.2 On April 2, 2020, Governor Stitt issued Executive Order 2020-123 in which the Governor invoked his constitutional and statutory power pursuant to the Catastrophic Health Emergency Powers Act, 63 O.S.2011, §§ 6101-6900, to declare a catastrophic health emergency as defined in § 6104.4 Members of the public were directed to shelter in place; social gatherings of more than ten persons were prohibited; elective and non-emergency medical/dental procedures were directed to be postponed; and non-essential businesses were ordered to be closed to the public.5 Oklahoma state offices were closed, federal courts and offices were closed, and schools operated in a remote fashion. On the heels of the Governor's actions, the Oklahoma Supreme Court, joined by the Oklahoma Court of Criminal Appeals, issued three successive, emergency orders, which concerned district-court procedure during the Covid-19 outbreak and suspended certain deadlines in legal matters.6 These orders represented a sensible response to the unprecedented crisis. Through the orders, the Court carried out its constitutional duty to safeguard judicial employees, the general public, and principles of justice. The issue presented in this appeal is whether these joint emergency orders suspended the time limit for effecting service of process set forth in 12 O.S.Supp.2017, § 2004(I).
¶3 The first joint emergency order (SCAD Order No. 2020-24), which was issued on March 16, 2020, states in relevant part:
Subject to constitutional limitations, all deadlines and procedures whether prescribed by statute, rule or order in any civil, juvenile or criminal case shall be suspended by 30 days from the date of this order. This suspension also applies to appellate rules and procedures for the Supreme Court, the Court of Criminal Appeals, and the Court of Civil Appeals.7
The Supreme Court issued a second joint emergency order (SCAD Order No. 2020-29) on March 27, 2020. SCAD Order No. 2020-29 continued the suspension of deadlines through May 15, 2020, recommended that all seventy-seven district courthouses be closed to the public as per local order, directed that jury trials be cancelled and directed judges and clerks to use email, fax and/or drop-boxes for filing written materials.8 On April 29, 2020, the Supreme Court entered a third joint emergency order (SCAD Order No. 2020-36), continuing the suspension of all civil and criminal deadlines and clarifying the prior SCAD orders:
5. In all cases, the period from March 16, 2020 to May 15, 2020, during which all rules and procedures, and deadlines, whether prescribed by statute, rule or order in any civil, juvenile or criminal case were suspended, will be treated as a tolling period. May 16th shall be the first day counted in determining the remaining time to act. The entire time permitted by statute, rule or procedure is not renewed.
6. Beginning on May 16, 2020, all rules and procedures, and all deadlines whether prescribed by statute, rule or order in any civil, juvenile, or criminal case, shall be enforced, including all appellate rules and procedures for the Supreme Court, the Court of Criminal Appeals, and the Court of Civil Appeals.
7. For all cases pending before March 16, 2020, the deadlines are extended for only the amount of days remaining to complete the action. For example, if the rule required the filing of an appellate brief within 20 days, and as of March 16, ten (10) days remained to file the brief, then the party has 10 days with May 16, 2020 being the first day.9
As set forth in the second and third SCAD orders, all civil time limits resumed on May 16, 2020.
McBee v. Shanahan Home Design, LLC, Case No. CJ-2019-711
¶4 On November 19, 2019, Appellant Vickie McBee ("McBee") filed separate lawsuits against multiple parties involved in the design and construction of her personal residence.10 McBee filed her suit against Shanahan Home Design, LLC ("Shanahan Home") and Biggs Backhoe, Inc. ("Biggs Backhoe") in Canadian County Case No. CJ-2019-711. McBee's counsel did not immediately have summonses issued for service on the defendants.
¶5 On May 18, 2020, the Canadian County court clerk's office issued summonses for both Biggs Backhoe and Shanahan Home.11 McBee served Biggs Backhoe on July 8, 2020, and Shanahan Home on July 16, 2020. Service was accomplished by certified mail, return receipt requested, delivery restricted to the addressee. Shanahan Home and Biggs Backhoe each filed special appearances, reserving additional time to answer McBee's petition.12
¶6 Each defendant filed motions to dismiss McBee's lawsuit. Biggs Backhoe's motion raised several arguments, including that McBee failed to serve her petition and summons within 180 days, and therefore should be deemed dismissed as of May 19, 2020. Shanahan Home also raised several arguments, but noted that it would defer to the trial court's judgment on whether the Covid-19 related administrative orders affected the time limit in § 2004(I). In response, McBee maintained that the joint SCAD orders suspended the period for service of process, and therefore dismissal was improper.
¶7 On October 7, 2020, the trial court issued and filed an order sustaining the motion to dismiss. The trial judge concluded, "because the Summons had not been issued prior to the Covid-19 issues that were addressed by the Supreme Court Directives (SCAD 2020-24; SCAD 2020-29; SCAD 2020-36), the directives do not apply."13 The trial judge further held that the 180-day period for service of summons was not stayed by the joint emergency orders.14
¶8 McBee filed her appeal from the trial-court ruling on November 5, 2020, and we retained the matter. Having reviewed the briefs and record on appeal, we now reverse and find the trial court erred in sustaining the defendants' motions to dismiss based on plaintiff's alleged failure to serve her petition and summons within 180 days.
Standard of Review
¶9 This matter presents a unique legal issue for appellate review--whether the trial court properly interpreted this Court's administrative orders suspending deadlines due to the Covid-19 outbreak in Oklahoma. Such an enquiry involves a question of law. Issues of construction pose a legal query, which we review using a de novo standard. Christian v. Christian, 2018 OK 91, ¶ 6, 434 P.3d 941, 942. In exercising de novo review, "this court possesses plenary, independent, and non-deferential authority to examine the issues presented." Benedetti v. Cimarex Energy Co., 2018 OK 21, ¶ 5, 415 P.3d 43, 45.
Analysis
¶10 Appellant McBee raises five assignments of error in her brief-in-chief; however, because we conclude the trial court erred by failing to suspend the time limitation to complete service of process, there is no need to address the remaining issues.
¶11 Although problems began to arise in 2019, it was not until the beginning of 2020, that the United States faced an extraordinary national emergency caused by the Covid-19 pandemic. As a result, federal, state, and local governments took unprecedented action to combat the viral outbreak. Courts across the country issued administrative orders in an effort to prevent the spread of Covid-19.15 Many of these orders included directives suspending deadlines and time limitations. The dispositive questions in this case are (1) whether the Supreme Court possesses express powers to suspend statutory deadlines during an unprecedented world-wide pandemic; and (2) whether the joint emergency SCAD orders entered in March and April 2020 postponed the 180-day period in § 2004(I) for accomplishing service of process on Shanahan and Biggs Backhoe.
¶12 We begin our analysis with the Oklahoma Constitution to ascertain what powers are bestowed upon this Court. Article 7 "provides for a unified system of judicial management under the authority of the Supreme Court." Petuskey v. Cannon, 1987 OK 74, ¶ 10, 742 P.2d 1117, 1120. Indeed, Section 4 of Article 7 establishes that "[t]he original jurisdiction of the Supreme Court shall extend to a general superintending control over all inferior courts and all Agencies, Commissions and Boards created by law." Okla. Const. art. VII, § 4. In addition, the Oklahoma Constitution vests the Supreme Court with primary administrative authority over all lower courts in the state. Further, the Oklahoma Constitution provides:
Except with reference to the Senate sitting as a Court of Impeachment and the Court on the Judiciary, general administrative authority over all courts in this State, including the temporary assignment of any judge to a court other than that for which he was selected, is hereby vested in the Supreme Court and shall be exercised by the Chief Justice in accordance with its rules. The Supreme Court shall appoint an administrative director and staff, who shall serve at its pleasure to assist the Chief Justice in his administrative duties and to assist the Court on the Judiciary.16
To facilitate the successful performance of this duty to act as administrator over the entire judiciary, the Oklahoma Legislature saw fit to entrust the Court with the power to promulgate rules. 20 O.S. 2011 § 24; 12 O.S. 2011 § 74.
¶13 In January 1969, this Court adopted the Rules on Administration of the Courts, 20 O.S. 2011, ch. 1, app. 2. These rules assign the Chief Justice of the Oklahoma Supreme Court with paramount charge over the state court infrastructure and the operation of each district, which includes the ability to issue orders necessary to carry out this management responsibility. Rule 2 reads in relevant part:
(D) The Chief Justice is authorized to issue such orders and directives as are necessary to exercise administrative and supervisory control over all district court personnel. . . .
* * * *
(E) The Chief Justice is authorized to issue such directives and orders as are necessary to manage the assignment, duties, and performance of district court personnel; to establish work schedules and other personnel policies applicable to district court personnel; to suspend, furlough or terminate individual district court personnel; and to make such other administrative directives as the Chief Justice deems appropriate for effective and efficient management of the district courts.17
We further noted in Petuskey:
These references to administration of courts make it clear the judiciary has exclusive authority to manage its own affairs. The purpose of a unitary system of judicial management is to centralize the administrative power of the entire judicial system in the Supreme Court, and make the Chief Justice the administrative head of all courts.
Petuskey, ¶ 15, 742 P.2d at 1120 (citation omitted). Under the State Constitution and Rule 2, it is unquestionable that the Supreme Court, acting through the Chief Justice, had authority to take proper measures and issue such orders as were deemed necessary for the safe operation of state courthouses and its employees.
¶14 In furtherance of its duty to oversee the state judiciary, this Court responded to the Covid-19 state of emergency by issuing the aforementioned SCAD orders. This first SCAD order declared that it was published "to clarify the procedures to be followed in all Oklahoma district courts and to encourage social distancing and to avoid risks to judges, court clerks, court employees and the public."18 In addition, the emergency order cancelled upcoming jury terms; released prospective jurors from service; urged the rescheduling of non-jury trials, hearings, and pre-trial conferences; placed limitations on persons entering judicial facilities; and authorized district courts to impose more stringent limitations when necessary. The second and third joint emergency orders urged additional protective action, such as conducting hearings remotely when feasible. Moreover, since the virus impacted Oklahoma jurisdictions at different times, with varying ferocity, the orders promoted consistent application of the law and ensured uniformity.
¶15 The tolling of time limitations was just one in a litany of safety measures implemented by the emergency orders to better protect courthouse employees and the public from further spread of Covid-19. The restrictions and directives prescribed by the Supreme Court in the March/April SCAD orders were analogous to orders closing state judicial facilities due to inclement weather or some other catastrophic event. Like ice, snow and severe weather, the conditions caused by Covid-19 drastically limited access to courthouses across the state and affected litigants' ability to meet required deadlines. Cf. 12 O.S.2011, § 2006(A) (extending deadlines which fall on a holiday or other day when a courthouse is closed or closes early). Beginning March 16, 2020, and continuing through May 15, 2020, courthouses across the State of Oklahoma were closed to the general public, with the exception of emergency matters. By limiting access to courthouses and by tolling time limits during the Covid-19 outbreak, this Court facilitated the overarching goal of protecting society as a whole from the pandemic. The orders were entered as part of the administrative role bestowed on this Court via the Oklahoma Constitution, and were only executed in furtherance of these administrative duties. The constitutionally authorized orders were temporary in nature and corresponded directly to the time frame in which the Governor required government offices, businesses, and churches to remain closed to the public.
12 O.S. Supp.2017, § 2004(I) as applied to McBee's case.
¶16 Plaintiff filed the underlying lawsuit in November 2019, thus, the applicable version of § 2004 was the 2017 enactment. Title 12 O.S. Supp.2017, § 2004(I) reads:
SUMMONS: TIME LIMIT FOR SERVICE. If service of process is not made upon a defendant within one hundred eighty (180) days after the filing of the petition and the plaintiff has not shown good cause why such service was not made within that period, the action shall be deemed dismissed as to that defendant without prejudice. The action shall not be dismissed if a summons was served on the defendant within one hundred eighty (180) days after the filing of the petition and a court later holds that the summons or its service was invalid. After a court quashes a summons or its service, a new summons may be served on the defendant within a time specified by the judge. If the new summons is not served within the specified time, the action shall be deemed to have been dismissed without prejudice as to that defendant. This subsection shall not apply with respect to a defendant who has been outside of this state for one hundred eighty (180) days following the filing of the petition.
¶17 Our decisions have recognized that service is always punctual if accomplished within 180 days, regardless of when a summons is issued. Cornett v. Carr, 2013 OK 30, ¶ 8, 302 P.3d 769, 772-73; Fischer v. Baptist Health Care of Okla., 2000 OK 91, ¶ 6, 14 P.3d 1292, 1293. In Carr, we found the time limit in § 2004(I) was "an outer limit not subject to reduction." Id. ¶ 12, 302 P.3d at 773. Nothing in the statute required McBee to issue summons by a date certain, so long as service was accomplished within the outer boundary set by § 2004(I). Thus, it was erroneous for the trial judge to disregard this Court's order suspending the 180-day time limit merely because the plaintiff had not issued summonses prior to the emergency SCAD orders.19
¶18 The third joint emergency order outlined an explanation for calculating the time limits:
5. Paragraphs 4 and 5 of the Second Emergency Joint Order remain in effect to May 15, 2020. In all cases, the period from March 16, 2020 to May 15, 2020, during which all rules and procedures, and deadlines, whether prescribed by statute, rule or order in any civil, juvenile or criminal case were suspended, will be treated as a tolling period. May 16th shall be the first day counted in determining the remaining time to act. The entire time permitted by statute, rule or procedure is not renewed.
* * * *
For all cases pending before March 16, 2020, the deadlines are extended for only the amount of days remaining to complete the action. For example, if the rule required the filing of an appellate brief within 20 days, and as of March 16, ten (10) days remained to file the brief, then the party has 10 days with May 16, 2020 being the first day.20
Under the terms of the third SCAD order, all deadlines between March 16, 2020, and May 15, 2020, were treated as being tolled due to the emergency health crisis. "'Tolling' is a term of art which refers to the temporary suspension of statutory time bar for bringing a suit because of either some 'disability' on the part of the plaintiff which prevents that person from commencing the action or some activity on the part of the defendant forestalling prosecution of the claim against the defendant." Thompson v. Anchor Glass Container Corp., 2003 OK 39, ¶ 9 n. 13, 73 P.3d 836, 838. The concept of tolling is not a new one. Importantly, the suspension period was crafted to conform to long-standing law dealing with situations where actors are prevented from performing statutorily imposed duties. "It is a well-settled rule of law that 'whenever a person is prevented from exercising his legal remedy by some paramount authority, the time during which he is thus prevented is not to be counted against him in determining whether the statute of limitations has barred his right." McGee v. Kirby, 1941 OK 326, ¶ 5, 118 P.2d 199, 200 (quoting Johnson v. Johnson, 1938 OK 194, ¶ 8, 182 Okla. 293, 77 P.2d 745, 747. This rule typically applies to statutes of limitations, which is comparable to the deadline in § 2004 for issuing summons; both require that a party perform some conduct within a specific time frame. In the present case, there are a number of factors that constitute disability on the part of the plaintiff, including, but not limited to, the fact that society was in the midst of a global pandemic. Most courthouses were closed to the public because of Covid-19. Additionally, the third SCAD order expressly stated that the statute of limitations in any civil case would be extended. Consequently, McBee's potential reliance on this Court's orders clearly stating that the statute of limitations on all civil cases pending would toll further establishes a disability for purposes of tolling.
CONCLUSION
¶19 From November 19, 2019, to March 15, 2020, a total of 117 days had expired, leaving McBee with 63 days to complete service under § 2004(I). When statutory deadlines resumed on May 16, 2020, McBee had until Saturday July 18, 2020 to complete service on the defendants. McBee served Biggs Backhoe on July 8, 2020, and Shanahan on July 16, 2020; therefore, both were served with the petition and summons in a timely manner, and it was error for the trial court to grant the defendants' joint motion to dismiss based on a failure to serve within 180 days. Accordingly, we reverse and remand this case for additional proceedings in the trial court.
JUDGMENT OF THE DISTRICT COURT REVERSED;
CAUSE REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION
CONCUR: DARBY, C.J., KANE, V.C.J., KAUGER, WINCHESTER, EDMONDSON, GURICH, ROWE, AND KUEHN, JJ.;
NOT PARTICIPATING: COMBS, J.