Mandate Issued: 03/01/2018
FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA
HONORABLE BRYAN C. DIXON, TRIAL JUDGE, REVERSED AND REMANDED
FOR FURTHER PROCEEDINGS
Cummings, T.M. CUMMINGS, INC., Oklahoma City, Oklahoma, for
Sherry Fischer, Carri A. Remillard, FOLIART, HUFF, OTTAWAY
& BOTTOM, Oklahoma City, Oklahoma, for Defendant/Appellee
The plaintiff, Andre Willis (Willis), appeals an Order
dismissing his action with prejudice filed against the
defendant, RMLS Hop OKC, LLC (RMLS). This appeal proceeds
under the provisions of Okla.Sup.Ct.R. 1.36, 12 O.S.Supp.
2017, Ch. 15, app. 1.
The pertinent facts are not disputed. Willis claimed that he
sustained a work-related injury on August 14, 2013, while
employed by RMLS and he filed a workers' compensation
action. RMLS discharged him on May 14, 2014.
On July 11, 2014, Willis sued RMLS in District Court for
retaliatory discharge. By that time the new law,
Administrative Workers' Compensation Act (AWCA), became
effective as Title 85A. Title 85A changed the retaliatory
discharge remedy scheme from an action in District Court to
an administrative action. 85A O.S.Supp. 2017, § 7.
However, it appears that Willis alleged that he could proceed
under the prior law because the date of his injury preceded
the enactment of the AWCA.
The District Court dismissed the action filed by Willis with
prejudice. The court ruled that exclusive jurisdiction rested
with the Workers' Compensation Commission under Title
85A. This ruling was equivalent to a ruling that the court
did not have subject-matter jurisdiction.
Willis did not appeal. Instead, he filed his action with the
Commission. On September 2, 2015, the Commission's
administrative law judge entered an Order determining that
jurisdiction rested with the District Court because the date
of injury controlled and that date preceded the enactment of
On May 2, 2017, Willis filed the action here under review as
a retaliatory discharge action under Title 85. He maintained
that this was a different action and that he had originally
proceeded under Title 85A and he now proceeded under Title
On August 23, 2017, the trial court entered its ruling
dismissing Willis' second law suit and applying claim
preclusion to his action.
On September 12, 2017, the Oklahoma Supreme Court decided
Young v. Station 27, Inc., 2017 OK 68, 404 P.3d 829.
The Young Court ruled that the date of injury
controlled over whether the AWCA or prior law applied to
retaliatory discharge actions. The appellate Record does not
indicate that Willis filed any post-judgment motions to bring
the Young decision to the attention of the trial
RMLS moved to dismiss the second action.  RMLS maintained that
the new action was barred under both issue preclusion and
claim preclusion doctrines. RMLS argued that the
jurisdictional issue was decided, not appealed, and became
final in that case between the parties. RMLS also argued that
the claims in each case were the same, that is, retaliatory
discharge, so that claim preclusion barred the current
The trial court dismissed the action. The trial court ruled
that both actions concerned the same claim, that is,
retaliatory discharge. Therefore, the trial court ruled that
the current action was barred by claim preclusion.
The petition sets out facts and background such that the
review may be of the dismissal on the claim preclusion ground
without treating the proceedings as a summary judgment.
In reviewing a nisi prius disposition by dismissal, this
court examines the issues de novo. Motions to
dismiss are generally viewed with disfavor. The purpose of a
motion to dismiss is to test the law that governs the claim
in litigation, not the underlying facts. A motion to dismiss
for failure to state a claim upon which relief may be granted
will not be sustained unless it should appear without doubt
that the plaintiff can prove no set of facts in support of
the claim for relief. When considering a defendant's
quest for dismissal, the court must take as true all of the
challenged pleading's allegations together with all
reasonable inferences that may be drawn from them. A
plaintiff is required neither to identify a specific theory
of recovery nor to set out the correct remedy or relief to
which he may be entitled. If relief is possible under any set
of facts which can be established and is consistent with the
allegations, a motion to dismiss should be denied. A petition
can generally be dismissed only for lack of any cognizable
legal theory to support the claim or for insufficient facts
under a cognizable legal theory. This recapitulation of the
standards that govern when a case is decided on a motion to
dismiss guides our review in this case.
Darrow v. Integris Health, Inc., 2008 OK 1, ¶
7, 176 P.3d 1204, 1208-09 (citations omitted).
Questions of law are reviewed de novo, and appellate
courts exercise plenary, independent, and non-deferential
authority. Welch v. Crow, 2009 OK 20, ¶ 10, 206
P.3d 599, 603.
There are three questions here. The first asks whether Willis
has one claim, or two as he argued. If there are two distinct
actions, then claim preclusion is not available. Miller
v. Miller, 1998 OK 24, ¶ 24, 956 P.2d 887, 897. The
second asks whether, assuming there is but a single claim,
that claim has been precluded by the original decision which,
as it turned out, was erroneous because of Young v.
Station 27, Inc. The third question asks, What is the
legal consequence of the fact that Young was decided
after the trial court entered its Order now on appeal?
For the following reasons, this Court holds that: (1) Willis
has a single claim; and (2) The doctrine of claim preclusion
does not bar this claim based upon the final, not appealed,
first District Court decision. This second holding leads to
the necessity to examine whether the doctrine of issue
preclusion operates to bar Willis' claim.  See
National Diversified Business Services, Inc. v. Corporate
Financial Opportunities, Inc., 1997 OK 36, ¶ 10, 946
P.2d 662, 666. After this examination, this Court concludes
that Willis' action is not precluded by the doctrine of
Willis Has a Single Claim
The Oklahoma Supreme Court instructed in Miller,
1998 OK 24 ¶ 23, 956 P.2d at 896-97, that the
"wrongful act" or "transaction" defines
the cause of action.
Under the principle of claim preclusion, a final judgment on
the merits of an action precludes the parties from
relitigating not only the adjudicated claim, but also any
theories or issues that were actually decided, or could have
been decided, in that action. The doctrine of claim
preclusion is designed to prevent piecemeal litigation
through the splitting of a single claim into separate
lawsuits. When claim preclusion is asserted, the court must
analyze the claim involved in the prior action to ascertain
whether it is in fact the same as ...