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Thibault v. Garcia

Court of Appeals of Oklahoma, Division II

June 14, 2017

JAMES E. THIBAULT, Plaintiff/Appellee,
v.
EVA M. GARCIA, individually, Defendant/Appellant, and JOHN DOE COMPANY and JOHN DOE MANAGEMENT COMPANY, Defendants.

          Mandate Issued: 07/19/2017

         APPEAL 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

          Daniel C. Hays, GOOLSBY, PROCTOR, HEEFNER & GIBBS, P.C., Oklahoma City, Oklahoma, for Defendant/Appellant

          JOHN F. FISCHER, PRESIDING JUDGE

         ¶1 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.

         BACKGROUND

         ¶2 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.

         Garcia 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.

         ¶3 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). [1] 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. [2]

         ¶4 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.

         STANDARD OF REVIEW

         ¶5 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 ...


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