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Cole v. Josey

Supreme Court of Oklahoma

May 29, 2019

AMANDA COLE, Plaintiff/Appellant,
v.
SAMANTHA JOSEY, Defendant/Appellee.

         

          ON CERTIORARI TO THE OKLAHOMA COURT OF CIVIL APPEALS DIVISION II.

         COUNSEL:

          Barry K. Roberts, Norman, Oklahoma, for Plaintiff/Appellant.

          Reign Karpe and Tayler Lane, Angela D. Ailles & Associates, Oklahoma City, OK, for Defendant/Appellee.

          Judges: COMBS, J. Gurich, C.J., Darby, V.C.J., Kauger, Winchester, Edmondson, Colbert and Combs, JJ., concur.

          OPINION

          COMBS, J.

Page 1008

          [¶0] The plaintiff, Amanda Cole, was injured in an automobile accident and sued the defendant, Samantha Josey. Plaintiff failed to serve process on the defendant within 180 days. The trial court dismissed the suit without prejudice. The plaintiff then refiled her petition within one year of the date of the order dismissing her case. The trial court dismissed her suit for failure to refile within one year of the 181st day following the filing of her original petition. Plaintiff appealed this decision. The Oklahoma Court of Civil Appeals affirmed the trial court. We granted certiorari and now reverse the trial court's decision and remand the matter to the trial court for further proceedings consistent with this opinion.

          I. FACTS AND PROCEDURAL HISTORY

          [¶1] This negligence cause of action pertains to injuries and damages caused by the Appellee, Samantha Josey, against the Appellant, Amanda Cole, in an automobile accident. The accident occurred on May 15, 2013, and Cole filed her petition on April 29, 2015, in Cleveland County, Oklahoma, Case No. CJ-2015-508. On October 26, 2015, 180 days had passed since the petition was filed and no summons was recorded as issued and no service was accomplished. On November 16, 2015, Josey appeared specially and filed a motion to dismiss for lack of service within 180 days of filing the petition as required by " 12 O.S. § 2004 (I)." [1] The trial court granted

Page 1009

the motion and dismissed the first cause of action without prejudice on January 4, 2016. On January 3, 2017, Cole refiled her petition in McClain County, Oklahoma, Case No. CJ-2017-1. Josey filed another special appearance and again moved to dismiss the petition on July 14, 2017. She asserted the first petition was deemed dismissed on the 181st day, October 27, 2015, and Cole did not refile her petition within one year of that date pursuant to the " savings statute," 12 O.S. 2011, § 100. The district court agreed with Josey and granted her motion to dismiss by an order filed November 9, 2017. It determined, Cole's petition in the Cleveland County case was deemed dismissed on October 27, 2015, and was not refiled within one year of its dismissal in accordance with " 12 O.S. § 100." Therefore, the McClain County petition, filed January 3, 2017, was untimely.

          [¶2] On December 8, 2017, Cole filed a petition in error with this Court. The case was assigned to the Oklahoma Court of Civil Appeals, Div. II. The appellate court affirmed the district court ruling on September 7, 2018. Cole filed a petition for rehearing which was denied. She then filed a petition for certiorari with this Court which was granted on April 1, 2019 and assigned to this office on the same day.

          II. ...


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