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Thompson v. Rodriguez

Court of Appeals of Oklahoma, Division II

August 25, 2017

BRANDY THOMPSON, Plaintiff,
v.
ROBERT ANDREW RODRIGUEZ, Defendant/Appellee. and PRESTON THOMPSON, Plaintiff/Appellant,

          Mandate Issued: 10/18/2017

         APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE ROMA M. MCELWEE, TRIAL JUDGE. AFFIRMED.

          William D. Pettigrew, Kelsie J. Lewis, NOLAND PETTIGREW & LEWIS, P.C., Oklahoma City, Oklahoma, for Plaintiff/Appellant

          Amy S. Neathery, Benjamin S. Saunier, PIERCE COUCH HENDRICKSON BAYSINGER & GREEN, L.L.P., Oklahoma City, Oklahoma, for Defendant/Appellee

          JOHN F. FISCHER, PRESIDING JUDGE

         ¶1 Plaintiff Preston Thompson appeals from the district court's orders dismissing, with prejudice, his small claims action against Defendant Robert Rodriguez and awarding Rodriguez costs and attorney fees. The appeal has been assigned to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36(b), 12 O.S.Supp. 2013, ch. 15, app. 1, and the matter stands submitted without appellate briefing. We find that the district court did not err in holding that Preston Thompson's claim was barred by the statute of limitations or in awarding costs and attorney fees. We affirm the judgments.

         BACKGROUND

         ¶2 This action arose from an automobile accident that occurred on January 11, 2008, between vehicles driven by Plaintiff's mother, Brandy Thompson, and Defendant. Plaintiff, who was 10 years old at the time of the accident, was a passenger in his mother's vehicle.

         ¶3 Without filing suit, Brandy Thompson initiated a claim against Defendant's automobile liability insurer for personal injuries and damages she allegedly sustained as a result of the accident. On May 29, 2009, Brandy Thompson settled her individual claim, releasing Defendant from any further liability to her.

         ¶4 On January 20, 2016, Brandy Thompson, through her attorney, initiated this case as a small claims proceeding. See "The Small Claims Procedure Act, " 12 O.S.2011 §§ 1751 to 1773. Her attorney prepared and filed a small claims affidavit, using the statutory form required by 12 O.S.2011 § 1753, and listing Brandy Thompson as the sole party plaintiff. The affidavit asserted that Defendant was "indebted to [Brandy Thompson] in the sum of $7, 500.00 for past physical pain and suffering, past medical expenses and temporary physical injuries, and lost wages, arising out of a motor vehicle accident." The matter was set for hearing on February 19, 2016. Brandy Thompson was unable to obtain service on Defendant prior to that date and filed an alias affidavit on February 19, asserting identical claims.

         ¶5 Defendant was served with the alias affidavit, and the case was set for hearing on March 17, 2016. On the morning before the hearing, Brandy Thompson's counsel filed an "Amended Affidavit, " naming Preston Thompson as an additional plaintiff. Later the same day, Defendant, who was also represented by counsel, filed a motion to dismiss for failure to state a claim on which relief may be granted. Defendant asserted that Brandy Thompson had previously settled her claim and, regardless, any claim she might have was time barred pursuant to the two-year statute of limitations set forth in 12 O.S.2011 § 95 (A)(3). Defendant further asserted that Preston Thompson had turned 19 years old on January 23, 2016, and, therefore, any claim he might have as a result of the January 2008 automobile accident was time barred pursuant to 12 O.S.2011 § 96. [1]

         ¶6 When the parties and their counsel appeared before the court at the hearing on March 17, 2016, they agreed that Brandy Thompson's claims should be dismissed for the reasons set forth in Defendant's motion. The district court then addressed the legal issues each side raised regarding whether Preston Thompson's claim was timely. Defendant reasserted the grounds of his motion and requested the court to dismiss Preston's claim. In response to Defendant's statute of limitations argument, Preston urged the district court to apply the "relation back" provisions of 12 O.S.2011 § 2015 (C). He argued that his claim was not time barred because it related back to his mother's initial small claims affidavit filed on January 20, 2016.

         ¶7 The district court found that the Amended Affidavit adding Preston Thompson as a plaintiff was not filed within the applicable limitations period and did not relate back to the original affidavit that his mother had filed as the sole plaintiff. The district court dismissed Preston's claim as barred by the statute of limitations.

         ¶8 Following a subsequent hearing, the district court granted Defendant's motion to tax costs and attorney fees, awarding Defendant $78.40 in costs and a $2, 500 attorney fee. Defendant had requested the award pursuant to 12 O.S.Supp. 2013 § 2011.1. The district court entered the award ...


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