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Perez v. Vandersee

Court of Appeals of Oklahoma, Division II

October 14, 2019

SAMANTHA PEREZ, Plaintiff/Appellant,
v.
MARRIK VANDERSEE, Defendant/Appellee.

          Mandate Issued: 11/14/2019

          APPEAL FROM THE DISTRICT COURT OF CUSTER COUNTY, OKLAHOMA HONORABLE FLOYD DOUGLAS HAUGHT, TRIAL JUDGE

          Kevin Rehl, KEVIN REHL, PLLC (REHL LAW FIRM), Oklahoma City, Oklahoma, for Plaintiff/Appellant

          Shanda McKenney, ANGELA D. AILLES & ASSOCIATES, Oklahoma City, Oklahoma, for Defendant/Appellee

          P. THOMAS THORNBRUGH, JUDGE

         ¶1 Plaintiff, Samantha Perez, appeals a decision of the district court finding that her automobile negligence suit against Defendant, Marrik Vandersee, was time barred. On review, we find that based upon the Oklahoma Supreme Court's recent clarification of the law applicable to the issue presented in matter in Cole v. Josey, 2019 OK 39, __P.3d __ (petition for rehearing denied Sept. 9, 2019; mandate issued October 9, 2019), the trial court's decision must be reversed and the cause remanded for further proceedings.

         BACKGROUND

         ¶2 Plaintiff Perez was injured in an automobile accident on November 17, 2014, and timely filed her petition on November 17, 2016, in Custer County, Oklahoma, Case No. CJ-2016-111. Although summons issued on the same date the petition was filed, service was not obtained.

         ¶3 On May 23, 2017, Defendant filed a special appearance and motion to dismiss based upon Plaintiff's failure to serve summons within 180 days as required by 12 O.S.Supp. 2014 § 2004 (I). That motion was set for hearing on June 16, 2017.

         ¶4 On June 16, 2017, Plaintiff voluntarily dismissed her petition without prejudice to refiling for the stated reason that her counsel had emergency quintuple bypass heart surgery, and that as a result of his health and subsequent recovery she had been unable to effectuate service upon Defendant. As a result of the voluntary dismissal, no court order dismissing the case for failure to obtain service was entered.

         ¶5 On June 13, 2018, within one year of the voluntary dismissal, Plaintiff refiled her petition pursuant to the 12 O.S.2011 § 100 "savings statute," in Custer County Case No. CJ-2018-56.

         ¶6 Defendant filed a motion to dismiss Perez' suit for failure to re-file the lawsuit within one year of the "deemed dismissal" date, which was May 16, 2017. The trial court agreed with Defendant that the original petition was deemed dismissed on May 16, 2017, for failure to effect service within 180 days, and that Plaintiff had failed to refile her action within one year in accordance with 12 O.S. § 100. Plaintiff's timely motion for new trial was denied.

         STANDARD OF REVIEW

         ¶7 At issue in this appeal is the district court's interpretation of 12 O.S.Supp. 2014 § 2004 (I) and 12 O.S.2011, § 100. Legal questions involving statutory interpretation are subject to de novo review. Heffron v. District Court of Okla. County, 2003 OK 75, ¶ 15, 77 P.3d 1069. De novo review is non-deferential, plenary ...


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