Mandate Issued: 02/23/2018
FROM THE DISTRICT COURT OF CLEVELAND COUNTY, OKLAHOMA
HONORABLE TRACY SCHUMACHER, TRIAL JUDGE
F. Saheb, E.F.S. LAW CENTER, Oklahoma City, Oklahoma, for
W. Lee, RIGGS, ABNEY, NEAL, TURPEN, ORBISON & LEWIS,
Oklahoma City, Oklahoma, for Defendant/Appellee.
P. WISEMAN, JUDGE.
Plaintiff Daniel Ray Stout appeals a summary judgment entered
in favor of Defendant Sheriff Lester in his Official Capacity
as Sheriff of Cleveland County, Oklahoma. Plaintiff also
appeals the trial court's order striking his motion to
reconsider. This appeal, assigned to the accelerated docket
pursuant to Oklahoma Supreme Court Rule 1.36, 12 O.S.Supp.
2016, ch. 15, app. 1, is considered without appellate
briefing. After review, we find no error in the trial
court's summary judgment or in its denial of
Plaintiff's motion to reconsider, and we affirm.
AND PROCEDURAL BACKGROUND
Plaintiff explains in his amended petition that on March 16,
2011, he "sustained serious and permanent injuries as a
result of being attacked by a dog owned by Defendant."
Plaintiff states that while police officers were "in hot
pursuit of two women, " they found Plaintiff in his yard
and ordered him to the ground even though he was not a
suspect. Plaintiff alleges he complied with their request and
then the officers ordered the police dog to attack him and
"laughed as the Plaintiff was screaming in fear of being
eaten alive." Plaintiff sought emergency care for his
injuries which required subsequent treatment.
Plaintiff states that on April 13, 2011, he sent a Notice of
Tort Claim as required by the Oklahoma Governmental Tort
Claims Act (GTCA), 51 O.S. § 156 to the "Offices of
Risk Management, Cleveland County Clerk and Sheriff's
Department." The Risk Management Division confirmed its
receipt of Plaintiff's letter on April 18, 2011.
Plaintiff claims, "A notice of Denial of Claim was
mailed on Friday, July 15, 2011 and received by this office
on July 18, 2011."
Plaintiff then brought this action. According to the OSCN
docket sheet, Plaintiff originally filed the petition on
January 13, 2012, in response to which Defendant filed a
motion to dismiss. Plaintiff then filed an amended petition
on May 31, 2012, against the Cleveland County Sheriff's
Department  for negligence arguing that the
"wound and subsequent injuries were the direct and
proximate result of the injuries suffered as a result of
being [attacked] by the dog owned and controlled by the
Defendant" and that the "Defendant is strictly
liable under Okla. Stat. Tit. 4, §42.1, as it is the
owner and custodian of the dog under Oklahoma law;
[Plaintiff] did not provoke the attack by the animal and was
in a location where he had a legal right to be."
Plaintiff further alleged that Defendant negligently failed
"to properly control and train the Dog and/or willfully
ordered the dog to attack the Plaintiff and/or willfully
refused to exert control over the dog in violation of
Oklahoma Statutes and common [l]aw negligence."
Plaintiff also sought recovery for Defendant's violation
of his civil rights. Plaintiff contends that, as a result of
these actions, he sustained permanent injuries, pain and
suffering, medical expenses, and mental distress. If
Defendant's actions are willful, Plaintiff argues he is
entitled to punitive damages. Contemporaneously with filing
the amended petition, Plaintiff filed a response to
Defendant's motion to dismiss.
On October 23, 2012, Defendant filed both an answer to the
amended petition and a second motion to dismiss arguing that
"Plaintiff's state tort law cause of action should
be dismissed as this court does not have subject matter
jurisdiction as Plaintiff failed to comply with the
[GTCA]." Defendant argues that "the Office of Risk
Management has nothing to do with Cleveland County or Sheriff
Lester" so the dates triggering the GTCA deadlines are
inapplicable. Defendant maintains that the County Clerk of
Cleveland County is the proper entity to receive the tort
claim notice. Because the County Clerk's office received
Plaintiff's notice on April 14, 2011, his "claim was
deemed denied by operation of law on July 13, 2011, which is
90 days from April 14, 2011." So "in order to
timely file his lawsuit, Plaintiff needed to file it by
Monday, January 9, 2012, which was 180 days from July 13,
2011. However, the Petition was not filed until January 13,
2012, " rendering Plaintiff's claims barred by the
GTCA as untimely. And, Defendant adds, "Plaintiff's
reliance on the letter from the Office of Risk Management
cannot exten[d] the statutory filing deadline."
In response, Plaintiff argued: 1) The "Supreme Court has
determined that the date can be extended by tolling, waiver,
or estoppel, " and 2) "the date relied on by the
Plaintiff was provided by the State of Oklahoma."
Plaintiff argues he never "received from either
Sheriff's Department or Cleveland County Court [
sic ] Clerk" any communication
"acknowledging receipt of Notice and/or Denial of
Claim" and that he is entitled to rely on the Office of
Risk Management's letter confirming receipt of the tort
claim notice on April 18, 2011. Plaintiff's third
proposition states the "Oklahoma Supreme Court
recognized the right to rely on a date provided by an
apparent authority." Plaintiff's last proposition
contends that "the request for additional information of
July 8, 2012 should restart the date."
In reply, Defendant argues that the GTCA does not require a
political subdivision to "affirmatively acknowledge
receipt of a notice or affirmatively advise that a claim is
denied.... Plaintiff could have easily determined the precise
date that the County, through the Cleveland County
Clerk's Office, received Plaintiff's notice of tort
claim" by hand delivering the notice or mailing it
certified mail, return receipt requested, or calling the
County Clerk's office to determine if it had received the
notice. Defendant further argues that the 90-day time period
could not be extended, tolled or waived by the Office of Risk
Management. Defendant contends, "There is no
relationship between the State and the County which would
enable the state to waive the defenses of the County
(specifically lack of jurisdiction) in this GTCA action.
Moreover, a simple reading of the GTCA shows that the State
has no 'apparent authority' over the County, or any
other political subdivision, as claimed by Plaintiff."
In a minute order filed November 19, 2012, the trial court
granted Defendant's motion to dismiss. 
On November 27, 2012, Plaintiff filed a motion to reconsider
the trial court's order dismissing his tort claim arguing
the trial court granted Defendant's motion to dismiss
before having an opportunity to consider Plaintiff's
response brief. Plaintiff's motion to reconsider restates
the arguments set forth in his response to Defendant's
motion to dismiss. Defendant responded incorporating by
reference all of its previous arguments asserting the trial
court's lack of subject matter jurisdiction over
Plaintiff's tort claims because he failed to follow the
requirements of the GTCA.
After a hearing, the trial court granted the motion to
reconsider but requested supplemental briefing with
additional authority which both parties submitted. After
considering the additional briefing, the trial court denied
Defendant's motion to dismiss pursuant to two handwritten
After discovery, Defendant filed a motion for summary
judgment on December 29, 2014, arguing 1) "Plaintiff
failed to comply with the [GTCA]; therefore, all torts
against Cleveland County should be dismissed for lack of
jurisdiction, " and 2) "Sheriff Lester is entitled
to summary judgment with regard to Plaintiff's 42 U.S.C.
§ 1983 claim for a civil rights violation against
Sheriff Lester in his official capacity."
In response, Plaintiff argued summary judgment should not be
granted because several facts regarding jurisdiction and
Plaintiff's claim for a civil rights violation were
disputed. Plaintiff further asserts that pursuant to the
"law of the case doctrine, " Defendant's issues
should not be heard because they have already "been
heard, decided and appealed."
Defendant urges the issues raised in his summary judgment
motion "have never been settled by a prior appellate
opinion" because the Oklahoma Supreme Court denied
Defendant's request for a writ "and the underlying
issues in the case were never briefed or argued before the
Court." Defendant further maintains that he has produced
additional evidence to show that Plaintiff filed his lawsuit
outside the 180-day requirement and he has raised additional
arguments showing the petition's untimeliness. ...