JAMES E. THIBAULT, Plaintiff/Appellee,
EVA M. GARCIA, individually, Defendant/Appellant, and JOHN DOE COMPANY and JOHN DOE MANAGEMENT COMPANY, Defendants.
Mandate Issued: 07/19/2017
FROM THE DISTRICT COURT OF CADDO COUNTY, OKLAHOMA HONORABLE
RICHARD G. VAN DYCK, TRIAL JUDGE
Bartlett H. Ramsey, OLDFIELD, BUERGLER & RAMSEY, Oklahoma
City, Oklahoma, for Plaintiff/Appellee
C. Hays, GOOLSBY, PROCTOR, HEEFNER & GIBBS, P.C.,
Oklahoma City, Oklahoma, for Defendant/Appellant
F. FISCHER, PRESIDING JUDGE
Defendant/Appellant Eva M. Garcia appeals the district
court's order granting her motion and dismissing
Plaintiff/Appellee James Thibault's petition without
prejudice. Thibault does not challenge that ruling. At issue
in this appeal is the effective date of the district
court's order. The district court made the effective date
of its order the date of the hearing on Garcia's motion.
However, because Thibault did not serve summons on Garcia
within one hundred and eighty (180) days as required by 12
O.S.Supp. 2013 § 2004 (I), and failed to show good cause
for not doing so, his petition was "deemed
dismissed" one hundred and eighty-one (181) days after
it was filed. Id. The district court's order
dismissing Thibault's petition is affirmed, as modified,
to reflect that the effective date of the dismissal is one
hundred and eighty-one (181) days after Thibault's
petition was filed.
Thibault alleges that on January 27, 2013, he was struck and
injured by a car that Garcia was driving. On September 4,
2013, Thibault filed his petition in this case suing Garcia
for negligence. He did not cause summons to be issued at that
time. On March 9, 2015, approximately 550 days later, Garcia
filed a special appearance and motion to dismiss. Garcia
contended that dismissal was required pursuant to 12
O.S.Supp. 2013 § 2004 (I).
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 cannot show good cause why such service was
not made within that period, the action shall be deemed
dismissed as to that defendant without prejudice.
argued that Thibault did not have good cause for the delay
and, therefore, his petition should be deemed dismissed as of
March 4, 2014, 181 days after the petition was filed.
Thibault filed an amended petition on March 13, 2015, and
summons was issued. On March 18, Thibault filed a response to
Garcia's motion to dismiss. His response provided no
excuse for the delayed service of the original petition.
Instead, he argued that the amended petition he filed, after
Garcia filed her motion to dismiss, automatically provided an
additional 180-day period within which to serve Garcia
because he was permitted to file his amended petition
"as a matter of course at any time before [Garcia's]
responsive pleading [was] served." 12 O.S.2011 §
2015 (A).  The district court rejected
Thibault's argument that this provided the necessary good
cause required by section 2004(I). Thibault did not appeal
the district court's ruling and that argument is not
addressed in this Opinion. 
The district court's docket sheet reflects that the court
entered a "court minute" on April 15, 2015,
sustaining Garcia's motion and dismissing Thibault's
petition. The district court's Journal Entry
memorializing this ruling was filed May 13, 2015, and
provided that "this case is dismissed without prejudice
effective April 15, 2015." Garcia appeals that portion
of the district court's order dismissing Thibault's
original petition as of April 15, 2015.
At issue in this appeal is the district court's
interpretation of 12 O.S.Supp. 2013 § 2004 (I). Legal
questions involving statutory interpretation are subject to
de novo review. Heffron v. Dist. Court of Okla.
Cnty., 2003 OK 75, ¶ 15, 77 P.3d 1069. De novo
review is non-deferential, plenary and ...