Ross v. Kelsey Hayes, Inc.

1991 OK 83, 825 P.2d 1273, 62 O.B.A.J. 2428, 1991 Okla. LEXIS 90, 1991 WL 138534

• Court: Supreme Court of Oklahoma
• Decided: July 30, 1991
• Docket: 77018
• Status: Published

Opinions

KAUGER, Justice.

The question presented is whether an action dismissed without prejudice, in which the defendants have not been served with summons, may be refiled within one year of the dismissal pursuant to the savings clause of 12 O.S.1981 § 100.¹ We find that it may.

FACTS

On December 7, 1987, the respondent, Travis J. Ross (Ross), was injured when a tire he was inflating exploded. Ross filed suit against the petitioners, Kelsey Hayes, Inc. and Bridgestone/Firestone, Inc. (collectively, Bridgestone/Firestone/manufactur-ers), on July 21, 1989, under a theory of manufacturers’ products liability. Ross alleged that the metal wheel and tire were defective in design and/or manufacture when they were placed in the stream of commerce. On November 21, 1989, without having served the manufacturers with notice of the action, Ross dismissed his cause without prejudice.² The statute of limitations on Ross’s cause of action ran on December 7, 1989.³

Relying on the same cause of action, Ross filed a new action on October 21, 1990. Bridgestone/Firestone was served with summons on October 30. On November 25, 1990, the petition was amended to reflect the institution of the previous cause and its dismissal without prejudice. The manufacturers filed a motion to dismiss on December 13, contending that the suit was time barred. Because they were not notified of the original action by service of summons, Bridgestone/Firestone argued that the action had not been properly commenced pursuant to § 100 and that its savings provision did not apply. Although the trial court denied the manufacturers’ motion to dismiss on January 11, 1991, the judge certified for interlocutory appeal, pursuant to 12 O.S.1981 § 952(b)(3),⁴ the question of whether an action dismissed without prejudice in which the defendants have not been served with summons may be refiled within one year of the dismissal pursuant to the savings clause of 12 O.S. 1981 § 100. The petition for certiorari was granted on March 8, 1991, setting a briefing cycle and directing Bridgestone/Fire-stone to prepare and transmit the record on certiorari. The briefing cycle was completed on May 20, 1991.

AN ACTION DISMISSED WITHOUT PREJUDICE IN WHICH THE DEFENDANTS HAVE NOT BEEN SERVED WITH SUMMONS MAY BE REFILED WITHIN ONE YEAR OF THE DISMISSAL PURSUANT TO THE SAVINGS CLAUSE OF 12 O.S. 1981 § 100.

Bridgestone/Firestone argues that the savings provision⁵ of 12 O.S.1981 § 100 may not be invoked to extend the statute of limitations for one year from the date of a voluntary dismissal if the plaintiff does not serve the defendant in the original cause. The manufacturer also insists that application of the renewal provisions of § 100 to extend the statute of limitations in causes in which the defendant has not been notified of the original claim violates due process.⁶ Ross asserts that an action is' “commenced” within the meaning of § 100 by filing a petition and that service of summons is not constitutionally required to invoke the recommencement-of-actions provision. We agree.

A.

An action is “commenced” pursuant to 12 O.S.Supp.1984 § 2003 and 12 O.S. 1981 § 100 by filing a petition with the court.

Prior to the institution of the Oklahoma Pleading Code,⁷12 O.S.Supp.1984 § 2001 et seq., the time within which an action was deemed commenced for limitation purposes was defined by 12 O.S.1981 § 97.⁸ Because § 97 required that the defendant be served with summons in order to commence an action, the savings provision of § 100 could not be invoked to extend the running of a statute of limitations in an action in which service had not been accomplished.⁹ Section 97 was repealed in 1984 and replaced by 12 O.S.Supp.1984 § 2003. It provides:

“A civil action is commenced by filing a petition with the court.” Unlike its statutory forerunner — § 97 — service need not be obtained to commence a civil action¹⁰ pursuant to § 2003. The action is commenced by filing a petition with the court.¹¹

The savings clause of 12 O.S.1981 § 100 is applicable to lawsuits timely filed and later dismissed on grounds unrelated to the merits of the controversy.¹² Because of its remedial nature, § 100’s provisions are to be liberally construed.¹³ The cardinal rule of statutory construction is a determination of legislative intent. However, where the Legislature has plainly expressed itself, there is no need for judicial interpretation.¹⁴ The language of § 100 is unambiguous in stating the actions to which it applies — “any action commenced within due time”. Because an action is “commenced” pursuant to § 2003 by filing a petition in the trial court, service need not be obtained in an original action in order to avail a party of the savings provision of § 100.

Our finding that an action dismissed without prejudice in which the defendants have not been served with summons may be refiled within one year of the dismissal pursuant to the savings clause of 12 O.S. 1981 § 100 is supported by the Committee Comment to § 2003.¹⁵ The comments, which recognize that § 2003 altered Oklahoma law, provide that the change was made in order to add needed certainty by making the date of filing of the petition the date of commencement of the action for all purposes, including application of the statute of limitations.16 Section 100 is but an extension of the statutorily established limitations period.¹⁷ Although the comments are not binding, they are helpful in clarifying that an action is “commenced” pursuant to 12 O.S.Supp.1984 § 2003 ¹⁸ and 12 O.S.1981 § 100¹⁹ by filing a petition with the court.²⁰

B.

Because the cause of action was not barred, no constitutionally protecta-ble interest in the statute of limitations arose.

Bridgestone/Firestone asserts that the application of § 100’s savings provision to a cause voluntarily dismissed without notice to the defending party violates due process under the Oklahoma²¹ and United States Constitutions.²² The manufacturers argue that dismissal of the original cause without notice affected a property interest in the limitations defense. Ross contends that no property interests arise from 12 O.S.1981 § 100,²³ a general statute of limitation.²⁴

The shelter provided by statutes of limitation has never been considered a fundamental right.²⁵ The United States Supreme Court recognized in Tulsa Professional Collection Serv., Inc. v. Pope, 485 U.S. 478, 485-487, 108 S.Ct. 1340, 1345, 99 L.Ed.2d 565, 575-76 (1988) that a cause of action may be an intangible property interest protected by the fourteenth amendment. However, the Supreme Court also espoused that the mere running of a general statute of limitation normally is insufficient to implicate due process and that the state’s limited involvement in the running of the time period usually falls short of constituting the type of state action required to implicate fourteenth amendment protections. Section 100 is a general statute of limitations.²⁶ It presents no conflict with art. 5, § 46’s²⁷ prohibition against a special statute of limitation. Even a lifting of the statutes’ bar may not be a per se offense against the Fourteenth Amendment.²⁸ Generally, statutes of limitation are procedural rather than substantive. No rights vest in them until a claim is barred by the governing statutory provision.²⁹ Section 100 operates to extend the applicable statutory limitation. It serves solely to enlarge the time for the pursuit of a remedy that otherwise would be barred.30 Because the savings provision of § 100 operated to extend the period within which Ross could pursue his cause, the claim was not barred by the running of the applicable statute of limitations. To invoke constitutional protections, protectable property interests must exist apart from procedural guarantees.³¹ No constitutionally protectable right ever arose in Bridge-stone/Firestone.

CONCLUSION

We recognize that the purpose of a statute of limitations is to ensure that a party has notice of a claim against him/her within a statutory period of time and an adequate opportunity to prepare his/her case.³² However, § 100 was enacted to avoid the harsh results flowing from the general rule that where an action fails and the statute of limitations has expired during the interim, any subsequent action is untimely.³³ Its protections extend to a party who timely files a case and later dismisses the cause without prejudice and without having served the defendant with summons in the original cause.³⁴ Because no interest in a statute of limitation ever arose, there has been no constitutional deprivation.³⁵ The cause is remanded for further proceedings not inconsistent with this opinion.

CERTIORARI PREVIOUSLY GRANTED; CAUSE REMANDED.

HODGES, V.C.J., and DOOLIN, HARGRAVE, ALMA WILSON and SUMMERS, JJ., concur. OPALA, C.J., and LAVENDER and SIMMS, JJ., dissent.

1 . Title 12 O.S.1981 § 100 provides:

"If any action is commenced within due time, and a judgment thereon for the plaintiff is reversed, or if the plaintiff fail in such action otherwise than on the merits, the plaintiff, or, if he should die, and the cause of action survive, his representatives may commence a new action within one (1) year after the reversal or failure although the time limit for commencing the action shall have expired before the new action is filed.”

2 . Title 12 O.S.1981 § 684 provides in pertinent part:

“A plaintiff may, on the payment of costs and without an order of court, dismiss any civil action brought by him at any time before a petition of intervention or answer praying for affirmative relief against him is filed in the action....”

3 . Kirkland v. General Motors Corp., 521 P.2d 1353, 1361 (Okla.1974); Title 12 O.S.1981 § 95 provides in pertinent part:

"Civil actions other than for the recovery of real property can only be brought within the following periods, after the cause of action shall have accrued, and not afterwards:

... Third. Within two (2) years: An action for trespass upon real property; 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, and not hereinafter enumerated; an action for relief on the ground of fraud — the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud_”

4 .Title 12 O.S.1981 § 952 provides in pertinent part:

"... (b) The Supreme Court may reverse, vacate or modify any of the following orders of the district court, or a judge thereof:

... 3. Any other order, which affects a substantial part of the merits of the controversy when the trial judge certifies that an immediate appeal may materially advance the ultimate termination of the litigation; provided, however, that the Supreme Court, in its discretion, may refuse to hear the appeal. If the Supreme Court assumes jurisdiction of the appeal, it shall indicate in its order whether the action in the trial court shall be stayed or shall continue....”

5 . Statutes like 12 O.S.1981 § 100, see note 1, supra, are variously referred to as savings provisions, renewal statutes, or recommencement-of-actions provisions. Wiley Elec., Inc. v. Brantley, 760 P.2d 182, 184 (Okla.1988); Matter of Estate of Speake, 743 P.2d 648-49 (Okla.1987).

6 . We note that this issue was not presented to the trial court. Issues of constitutionality generally must be raised in the trial court to be reviewable upon appeal. See, Bane v. Anderson, Bryant & Co., 786 P.2d 1230, 1237 (Okla.1989); Ring v. Public Serv. Co., 775 P.2d 1356, 1358 (Okla.1989). However, lack of due process claims are an exception to the general rule that issues not presented to the trial court will not be considered on appeal. Pettit v. American Nat'l Bank, 649 P.2d 525, 529 (Okla.1982).

The Okla. Const, art. 2, § 7 provides:

"No person shall be deprived of life, liberty, or property, without due process of law.”

United States Const, amend. 5 provides in pertinent part:

“No person shall be ... deprived of life, liberty, or property, without due process of law ..."

United States Const, amend. 14, § 1 provides in pertinent part:

"... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

7 . Title 12 O.S.Supp.1984 § 2001 provides:

"The Oklahoma Pleading Code governs the procedure in the district courts of Oklahoma in all suits of a civil nature whether cognizable as cases at law or in equity except where a statute specifies a different procedure. It shall be construed to secure the just, speedy, and inexpensive determination of every action. This act may be cited as the 'Oklahoma Pleading Code’. Section captions are part of this act.”

Section 2001 was amended effective November 1, 1985. The statute remains identical to its 1984 counterpart except that it provides that sections 2001 through 2027 are to be cited as the Oklahoma Pleading Code.

8 . Kile v. Cotner, 415 P.2d 961-62 (Okla.1966); Title 12 O.S.1981 § 97 provides:

"An action shall be deemed commenced, within the meaning of this article, as to each defendant, at the date of the summons which is served on him or on a codefendant, who is a joint contractor or otherwise united in interest with him. Where service by publication is proper, the action shall be deemed commenced at the date of the first publication. An attempt to commence an action shall be deemed equivalent to the commencement thereof, within the meaning of this article, when the party faithfully, properly and diligently endeavors to procure a service; but such attempt must be followed by the first publication or service of the summons, or if service is sought to be procured by mailing, by a receipt of certified mail containing summons, within sixty (60) days."

9 . C & C Tile Co. v. Independent School Dist No. 7, 503 P.2d 554, 558 (Okla.1972); Myers v. Kansas, Okla. & Gulf Ry. Co., 200 Okl. 676, 199 P.2d 600, 602 (1948). But see, Meshek v. Cordes, 164 Okl. 40, 22 P.2d 921, 925 (1933) (Failure of action due to irregular and defective service, quashing of service of summons, want of jurisdiction, and dismissal without prejudice for failure to pay costs constitutes "failure otherwise than on the merits" within meaning of the recommencement-of-actions statute.).

Oklahoma received its recommencement-of-actions provision, 12 O.S.1981 § 100, see note 1, supra, from the laws of Kansas. Matter of Estate of Speake, see note 5 at 650, supra; Amsden v. Johnson, 74 Okl. 295, 158 P. 1148-49 (1916). In O'Neil v. Eppler, 99 Kan. 493, 162 P. 311-312 (1917), the Kansas Supreme Court found that its statutory savings clause was not applicable in a case in which a bill of particulars had been filed but no service was obtained. This decision is not binding on our construction of Oklahoma’s savings provision for two reasons: 1) The O’Neil decision was rendered after adoption of § 100 by the Legislature and, at best, may be considered persuasive authority. Valley Vista Dev. Corp. v. City of Broken Arrow, 766 P.2d 344, 349 (Okla.1988); In re Fletcher’s Estate, 308 P.2d 304, 311-12 (Okla.1957); and 2) In rendering the decision, the O'Neil court relied on the then operative Kansas commencement statute, which, like 12 O.S.1981 § 97, see note 8, supra, provided that an action would be deemed commenced upon service of the defendant. Legislative process, like that undertaken by the enactment of 12 O.S.Supp.1984 § 2003, see this note, infra, affords an effective means for departure from even the binding force of a sister states’ judicial interpretation. Matter of Estate of Speake, see note 5 at 650, supra.

Title 12 O.S.Supp.1984 § 2003 provides:

"A civil action is commenced by filing a petition with the court.”

10 . Title 12 O.S.Supp.1984 § 2002 provides:

“There shall be one form of action to be known as ‘civil action’.”

11 . Buckner v. General Motors Corp., 760 P.2d 803, 809 (Okla.1988); Title 12 O.S.Supp.1984 § 2003, see note 9, supra.

C. Adams, "Highlights of Changes Made by the Oklahoma Pleading Code,” 55 O.BJ. 1875 (1984).

"... Probably the most important change involving service of process is that commencement of an action no longer will depend on service of the summons. Instead, an action will be commenced when the petition is filed with the court_”

G. Fraser, "Pleading Under the New Oklahoma Code,” 55 O.BJ. 1866 (1984).

"... Section 2003 of the Oklahoma Pleading Code provides that an action is commenced by filing a petition with the court; the issuance of a summons is not a prerequisite to the commencement of an action_”

12 . Matter of Estate of Speake, see note 5 at 650, supra.

13 . Dumas v. United States, 103 F.2d 676, 679 (10th Cir.1939); Valley Vista Dev. Corp. v. City of Broken Arrow, see note 9, supra; C & C Tile Co. v. Independent School Dist. No. 7, see note 9 at 559, supra.

14 . Valley Vista Dev. v. City of Broken Arrow, see note 9, supra; Northwest Datsun v. Oklahoma Motor Vehicle Comm’n, 736 P.2d 516, 519 (Okla.1987).

15 . Committee Comment to § 2003, 12 O.S.Supp. 1984, provides in pertinent part:

"This section simplifies the determination of when an action is commenced. Under former Okla.Stat. tit. 12, § 151 (1981), an action was deemed commenced upon the filing of a petition and issuance of summons by the clerk_ For the purpose of applying a statute of limitation, however, an action was deemed commenced as to each defendant when the summons was served upon him. Okla.Stat. tit. 12, § 97 (1981)_ Section 2003 changes Oklahoma law and adds needed certainty by making the date of filing of the petition the date of commencement of the action for all purposes, including application of the statute of limitations_”

16 . See also, Mott v. Carlson, 786 P.2d 1247-48 (Okla.1990).

17 . Matter of Estate of Speake, see note 5 at 653, supra.

18 . Title 12 O.S.Supp.1984 § 2003, see note 9, supra.

19 . Title 12 O.S.1981 § 100, see note 1, supra.

20 . Vinyard v. Smith, 810 P.2d 832-33 (Okla.Ct. App.1991). See also, G.S. v. Ewing, 786 P.2d 65, 69 (Okla.1990) (Official comments to the Uniform Child Custody Jurisdiction Act referred to in determining appropriate jurisdiction to hear child custody dispute.); State ex rel. Day v. Southwest Mineral Energy, Inc., 617 P.2d 1334, 1339 (Okla.1980) (Official Comment's in the Draftsmen's commentary to the Uniform Securities Act relied upon to determine that the interpretative history of the federal act was intended to be carried over into the state act when the Uniform Securities Act was patterned after the federal statutes.).

21 . The Okla. Const, art. 2, § 7, see note 6, supra.

22 . United States Const, amend. 5, see note 6, supra; United States Const, amend. 14, see note 6, supra.

²³

24 . Matter of Estate of Speake, see note 5 at 652-53, supra; 12 O.S.1981 § 100, see note 1, supra.

25 . Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 314, 65 S.Ct. 1137, 1142, 89 L.Ed. 1628, 1635 (1945).

26 . Matter of Estate of Speake, see note 5 at 652-53, supra.

27 . The Okla. Const, art. 5, § 46 provides in pertinent part:

"The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing: ... For limitation of civil or criminal action

28 . International Union v. Robbins & Myers, Inc., 429 U.S. 229, 243-44, 97 S.Ct. 441, 450, 50 L.Ed.2d 427, 439 (1976). United States Const. amend. 14, § 1, see note 6, supra.

29 . Trinity Broadcasting Corp. v. Leeco Oil Co., 692 P.2d 1364, 1366 (Okla.1984).

³⁰

31 . Eftekhara v. Illinois Dept., 661 F.Supp. 522, 527 (N.D.Ill.1987). See also, Kramer v. Piper Aircraft Corp., 868 F.2d 1538, 1541 (11th Cir. 1989) (An argument alleging a vested property interest in a statute of limitations must rely on the proposition that there has been a final determination that a claim is barred. No constitutional prohibition exists against applying an extended statute of limitations to a cause not previously barred.).

32 . Chandler v. Denton, 741 P.2d 855, 861 (Okla.1987); C & C Tile Co. v. Independent School Dist. No. 7, see note 9 at 559.

33 . Valley Vista Dev. Corp. v. City of Broken Arrow, see note 9, supra; Annot., “Statute Permitting New Action After Failure of Original Action Commenced Within Period of Limitation, as Applicable in Cases Where Original Action Failed for Lack of Jurisdiction," 6 A.L.R.3d 1043, 1046 (1966).

34 . See, Mott v. Carlson, see note 16, supra.

35 . Trinity Broadcasting Corp. v. Leeco Oil Co., see note 29, supra.