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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

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

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

          CERTIORARI GRANTED PREVIOUSLY; THE OPINION OF THE OKLAHOMA COURT OF CIVIL APPEALS IS VACATED; TRIAL COURT ORDER DATED NOVEMBER 9, 2017, IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION

          COMBS, J.

         I. FACTS AND PROCEDURAL HISTORY

         ¶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.

         ¶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 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. STANDARD OF REVIEW

         ¶3 The first impression question before us is one of law. A legal question involving statutory interpretation is reviewed de novo, i.e., by a non-deferential, plenary and independent examination of the trial court's legal ruling. Samman v. Multiple Injury Trust Fund, 2001 OK 71, ¶8, n.5, 33 P.3d 302. In the interpretation of statutes, courts do not limit their consideration to a single word or phrase in isolation to attempt to determine their meaning, but construe together the various provisions of relevant legislative enactments to ascertain and give effect to the legislature's intention and will, and attempt to avoid unnatural and absurd consequences. McNeill v. City of Tulsa, 1998 OK 2, ¶11, 953 P.2d 329. In construing statutes, harmony, not confusion, is to be sought and when parts of an act are reasonably susceptible of a construction which will give effect to both and to the words of each, without violence to either, such construction should be adopted in preference to one which, though reasonable, leads to the conclusion that there is a conflict. Rogers v. Oklahoma Tax Commission, 1952 OK 388, ¶17, 263 P.2d 409.

         III. ANALYSIS

         ¶4 The sole issue on appeal is whether the refiling of a petition after the first petition is dismissed on the grounds that service was not made within 180 days must take place within one year of the finality of the order dismissing the case or within one year from the 181st day of filing the petition. We hold, the day after the filing of an appealable order dismissing the case is the date from which the 12 O.S. 2011, § 100 "savings statute" one year refiling period begins, if the order is not appealed. Where the dismissal order is appealed the one year period commences on the day after the appeal is final. This issue has not been specifically addressed by this Court under these facts and under the version of the statute applicable to this action.

         ¶4 Two statutes are applicable to this case. Title 12 O.S.Supp. 2014, § 2004 (I) and 12 O.S. 2011, § 100. Title 12 O.S.Supp. 2014, § 2004 (I) provides:

I. SUMMONS: TIME LIMIT FOR SERVICE. If service of process is not made upon a defendant within one hundred eighty (180) days after the filing of the petition and the plaintiff cannot show good cause why such service was not made within that period, the action shall be deemed dismissed as to that defendant without prejudice. The action shall not be dismissed if a summons was served on the defendant within one hundred eighty (180) days after the filing of the petition and a court later holds that the summons or its service was invalid. After a court quashes a summons or its service, a new summons may be served on the defendant within a time specified by the judge. If the new summons is not served within the specified time, the action shall be deemed to have been dismissed without ...

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