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Ford v. Tulsa Public Schools

Court of Appeals of Oklahoma, Division IV

July 27, 2017

CARIOL FORD, Plaintiff/Appellant,
v.
TULSA PUBLIC SCHOOLS, Defendant/Appellee.

          Mandate Issued: 08/22/2017

         APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE REBECCA B. NIGHTINGALE, TRIAL JUDGE

          Pamla K. Cornett, FLYNN LAW FIRM PLLC, Tulsa, Oklahoma, for Plaintiff/Appellant

          Eric D. Wade, ROSENSTEIN, FIST & RINGOLD, Tulsa, Oklahoma, for Defendant/Appellee

          DEBORAH B. BARNES, PRESIDING JUDGE.

         ¶1 Cariol Ford filed this tort action against Tulsa Public Schools (TPS) alleging she was involved in an automobile accident with a bus owned by TPS. She alleges the bus was being driven negligently by an agent or employee of TPS and that the bus driver's negligent driving caused her to incur, inter alia, medical expenses and pain and suffering.

         ¶2 TPS filed a motion to dismiss, asserting Ford failed to comply with one or more provisions of the Governmental Tort Claims Act (GTCA), 51 O.S. 2011 & Supp. 2012 §§ 151-172, thereby extinguishing the court's subject matter jurisdiction over this action. Ford appeals from the trial court's order granting the motion to dismiss. She also appeals from the trial court's denial of her "Motion to Reconsider" that order.

         ¶3 Based on our review, we conclude an issue of fact exists as to whether Ford has satisfied the requirement under the GTCA that her claim be "filed with the office of the clerk of the governing body." 51 O.S.Supp. 2012 § 156 (D). Although Ford admits her claim was not specifically addressed to the office of the appropriate clerk, she has presented facts and allegations, set forth in more detail below, that it was nevertheless transmitted to and filed with the office of that clerk. TPS has presented an affidavit in conflict with Ford's evidentiary materials and assertions. Thus, we remand this case to the trial court for purposes of holding an evidentiary hearing to resolve this issue of fact.

         ¶4 TPS also asserts the trial court lacks jurisdiction over this action because Ford failed to file her petition in the district court within 180 days of the claim being denied by TPS. As pointed out by Ford in her motion to reconsider, this basis for dismissal was set forth for the first time in TPS's reply to Ford's response to the motion to dismiss, and Ford was, thus, unable to respond to this basis for dismissal in her response to the motion to dismiss. Ford also asserts that the 180-day time limit may be extended under certain circumstances, circumstances which she asserts are present in this case. We conclude this issue should also be addressed by the trial court at the evidentiary hearing, where both parties can present argument and evidence in support of their positions.

         STANDARD OF REVIEW AND PRELIMINARY ISSUES

         ¶5 Both parties have included evidentiary materials beyond the pleadings - - TPS has attached an affidavit to its motion to dismiss, and Ford has attached various evidentiary materials to her response to the motion to dismiss. TPS notes that because it is moving for dismissal for lack of subject matter jurisdiction, "the court may view matters outside the pleadings without converting the motion to one for summary judgment." We agree.

         ¶6 In general, under 12 O.S. 2011 § 2012 (B),

the procedure [for] converting a motion to dismiss into a motion for summary judgment when matters outside the pleadings are presented applies only to motions to dismiss for failure to state a claim upon which relief can be granted, but does not apply to motions to dismiss for lack of subject matter jurisdiction[.]

Grayhorse Energy, LLC v. Crawley Petroleum Corp., 2010 OK CIV APP 145, ¶ 6 n.10, 245 P.3d 1249 (citations omitted). "This Court has held that a trial court may review evidentiary material attached to a motion to dismiss, without converting the motion to one for summary judgment, if the motion challenges the court's jurisdiction." Kennedy v. City of Talihina, 2011 OK CIV APP 108, ¶ 4, 265 P.3d 757 (citation omitted). [1]

         ¶7 In TPS's motion to dismiss, it challenges the court's jurisdiction. TPS asserts that Ford has failed to comply with one or more provisions of the GTCA and that this failure has extinguished the court's subject matter jurisdiction over the action. Indeed, the Oklahoma Supreme Court has explained that

the Legislature consented to judicial enforcement of tort claims in the manner narrowly structured by the procedural requirements of §§ 156 and 157. [This Court has previously] determined that: 1) compliance with the written notice of claim and denial of claim provisions in §§ 156 and 157 are prerequisites to the state's consent to be sued and to the exercise of judicial power to remedy the alleged tortious wrong by the government; 2) judicial power is invoked by the timely filing of the governmental tort claims action pursuant to § 157; and, 3) expiration of the 180-day time period in § 157(B) operates to bar judicial enforcement of the claim against the government to which the Legislature waived sovereign immunity.

Shanbour v. Hollingsworth, 1996 OK 67, ¶ 7, 918 P.2d 73. [2]

         ¶8 Because TPS challenges the court's jurisdiction, the trial court properly refrained from converting the motion to dismiss into one for summary judgment. Thus, we will treat TPS's motion as a motion to dismiss and we will also review the evidentiary material attached by the parties. "This Court subjects a trial court's judgment dismissing a petition to de novo review." Wilson v. State ex rel. State Election Bd., 2012 OK 2, ¶ 4, 270 P.3d 155 (citation omitted). "Motions to dismiss are generally disfavored and granted only when there are no facts consistent with ...


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