Mandate Issued: 10/18/2017
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
Neathery, Benjamin S. Saunier, PIERCE COUCH HENDRICKSON
BAYSINGER & GREEN, L.L.P., Oklahoma City, Oklahoma, for
F. FISCHER, PRESIDING JUDGE
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.
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.
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.
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.
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.
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.
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.
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