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Stout v. Cleveland County Sheriff's Department

Court of Appeals of Oklahoma, Division IV

December 29, 2017

DANIEL RAY STOUT, Plaintiff/Appellant,

          Mandate Issued: 02/23/2018


          Edward F. Saheb, E.F.S. LAW CENTER, Oklahoma City, Oklahoma, for Plaintiff/Appellant.

          David W. Lee, RIGGS, ABNEY, NEAL, TURPEN, ORBISON & LEWIS, Oklahoma City, Oklahoma, for Defendant/Appellee.


         ¶1 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.


         ¶2 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.

         ¶3 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."

         ¶4 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 [1] 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.

         ¶5 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."

         ¶6 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."

         ¶7 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."

         ¶8 In a minute order filed November 19, 2012, the trial court granted Defendant's motion to dismiss. [2]

         ¶9 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.

         ¶10 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 "summary orders."

         ¶11 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."

         ¶12 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."

         ¶13 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. ...

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