Mandate Issued: 04/26/2017
FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE
REBECCA B. NIGHTINGALE, JUDGE
Williford, GRIFFIN, REYNOLDS, & ASSOCIATES, Oklahoma
City, Oklahoma, for Plaintiff/Appellant,
"Gil" Steidley, Jr., Stacie L. Hixon, Douglas R.
Scott, Mary O'Reilly, STEIDLEY & NEAL, P.L.L.C.,
Tulsa, Oklahoma, for Defendant/Appellee.
Kenneth L. Buettner, Chief Judge.
Plaintiff/Appellant Osvaldo Garcia appeals from the trial
court's order dismissing the action with prejudice. The
trial court dismissed the case with prejudice because Garcia
was not ready to proceed with trial on the day of trial. We
hold it was within the trial court's inherent power to
dismiss the action for failure to prosecute and, given the
circumstances, the trial court did not abuse its discretion
by dismissing the action with prejudice. AFFIRMED.
Garcia and Defendant/Appellee Steven Lane were involved in a
motor vehicle accident January 22, 2011. Garcia filed a
personal injury lawsuit against Lane December 18, 2012.
Pre-trial conference was held May 5, 2014. The pre-trial
order set the case for jury trial October 6, 2014. Trial was
re-set several times due to Garcia obtaining new counsel, a
joint motion to continue, the case being re-assigned to a
different judge, and Garcia's motion to continue due to
illness. Ultimately, the case was set for jury trial
September 14, 2015. On the morning of trial, Garcia filed a
Motion to Dismiss Without Prejudice, pursuant to 12 O.S.
§ 684. Lane objected. The trial court heard arguments
and denied Garcia's Motion to Dismiss Without Prejudice
based on Garcia not providing an explanation for the last
minute dismissal, the age of the case, and prejudice to the
defense. Garcia's only response was that § 684 did
not authorize the trial court to deny his motion and the
court was required to issue an order dismissing the case
without prejudice. The court ordered to proceed with trial.
When asked if Garcia was prepared to proceed with trial,
Garcia's counsel announced he was not and that his client
was not present. Because Garcia was not ready for trial on
the day of trial, the trial court ordered the case dismissed
with prejudice. A Journal Entry of Judgment was filed
November 20, 2015. Garcia appeals.
Garcia's first proposition of error is that 12 O.S.
§ 684 does not permit a trial court to deny a
plaintiff's motion to dismiss without prejudice. Issues
of statutory construction are questions of law to be reviewed
de novo, and appellate courts exercise plenary,
independent, and non-deferential authority. Welch v.
Crow, 2009 OK 20, ¶ 10, 206 P.3d 599. In cases
requiring statutory construction, the cardinal rule is to
ascertain and give effect to the intent of the Legislature.
Id. The words of a statute will be given their plain
and ordinary meaning, unless it is contrary to the purpose
and intent of the statute considered as a whole. Naylor
v. Petuskey, 1992 OK 88, ¶ 4, 834 P.2d 439.
The 2013 version of the 12 O.S. § 684 applies in this
A. An action may be dismissed by the plaintiff without an
order of court by filing a notice of dismissal at any time
before pretrial. After the pretrial hearing, an action
may only be dismissed by agreement of the parties or by the
court. Unless otherwise stated in the notice of
dismissal or stipulation, the dismissal is without prejudice.
B. Except as provided in subsection A of this section, an
action shall not be dismissed at the plaintiff's request
except upon order of the court and upon such terms and
conditions as the court deems proper. If a counterclaim has
been pleaded by a defendant prior to the service upon the
defendant of the plaintiff's motion to dismiss, the
action shall not be dismissed against the defendant's
objection unless the counterclaims can remain pending for
independent adjudication by the court. Unless otherwise
specified in the order, a dismissal under this subsection is
12 O.S.Supp.2014 § 684 (A)-(B) (emphasis added).
Garcia's Motion to Dismiss Without Prejudice was made
after the pre-trial hearing, and the parties did not agree to
dismissing the action. Therefore, a court order was required.
We hold the plain and ordinary meaning of the language in 12
O.S.Supp.2014 § 684 (A) and (B) permits the trial court
to deny a plaintiff's request to dismiss an action after
pre-trial. This interpretation is consistent with the purpose
and intent of the Legislature. The previous version of the
statute permitted the plaintiff to dismiss a case without a
court order any time before trial:
A. Except as provided in Section 5 of this act, an action may
be dismissed on the payment of costs and without an order
of court by the plaintiff at any time before a petition
of intervention or answer praying for affirmative relief
against the plaintiff is filed in the action. A plaintiff
may, at any time before the trial is commenced, on
payment of the costs and without any order of court,
dismiss the action after the filing of a petition of
intervention or answer praying for affirmative relief, but
such dismissal shall not prejudice the right of the
intervenor or defendant to proceed with the action.
12 O.S.Supp.2004 § 684 (A) (emphasis added). In the 2013
version of the statute, the Legislature deliberately limited
a plaintiff's ability to dismiss an action at the
eleventh hour by requiring either the agreement of the
parties or a court order. Garcia's suggestion that the
trial court is required to issue an order dismissing the
action upon the plaintiff's request is ...