DRYE v. TARGET

OSCN Found Document:DRYE v. TARGET

OSCN navigation

Home

Courts

Court Dockets

Legal Research

Calendar

Help

Previous Case

Top Of Index

This Point in Index

Citationize

Next Case

Print Only

DRYE v. TARGET

2015 OK CIV APP 61

350 P.3d 417

Case Number: 113244

Decided: 02/06/2015

Mandate Issued: 06/10/2015

DIVISION II

THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION II

Cite as: 2015 OK CIV APP 61 , 350 P.3d 417

KATHI DRYE, Plaintiff/Appellant,

v.

TARGET aka TARGET

STORE #2220 aka TARGET CORPORATION aka TARGET STORES, Defendant/Appellee.

APPEAL FROM THE DISTRICT COURT OF

CLEVELAND COUNTY,

OKLAHOMA

HONORABLE THAD BALKMAN, TRIAL JUDGE

AFFIRMED

Robert W. Haiges, HAIGES, COURY & ASSOCIATES, PLLC, Edmond, Oklahoma, for

Plaintiff/Appellant

Brion B. Hitt, FENTON, FENTON, SMITH, RENEAU & MOON,

Oklahoma City, Oklahoma, for Defendant/Appellee

JERRY L. GOODMAN, VICE-CHIEF JUDGE:

¶1 Kathi Drye (Drye) appeals an August 28, 2014, order denying her motion for

reconsideration or new trial. Based on our review of the facts and applicable

law, we affirm.

BACKGROUND

¶2 Drye filed suit against Target on October 21, 2013, in CJ-2013-1323. 1 Summons issued

the same day. The last day for Drye to serve Target expired on April 21, 2014.

Drye failed to serve Target and on May 12, 2014, Target filed a special

appearance and motion to dismiss, asserting the case was deemed dismissed

pursuant to 12 O.S.2011 and Supp.

2013, § 2004(I). On May 15, 2014, Drye filed an application for additional

time to serve summons, which the trial court granted by order filed on May 20,

2014, prior to Target's response to Drye's application. 2 On May 22, 2014, Target filed a

special appearance and objection, asserting Drye had failed to show "good cause"

why service had not been made within the 180 days. Target subsequently sought

vacation of the order permitting Drye additional time to serve summons.

¶3 After additional briefing and a hearing, the trial court granted Target's

motion to vacate its previous order allowing Drye additional time to serve

summons and dismissed Drye's petition. On August 1, 2014, Drye filed a motion

for reconsideration or new trial. By order entered on August 28, 2014, the court

denied the motion. Drye appeals.

STANDARD OF REVIEW

¶4 Drye's motion for reconsideration or new trial was timely filed within ten

(10) days of the trial court's journal entry of judgment on July 22, 2014. 3 We review a

trial court's order denying a motion for new trial pursuant to an abuse of

discretion standard. Robinson v. Oklahoma Nephrology Assoc., Inc., 2007 OK 2, ¶ 6 , 154 P.3d 1250, 1253 .

¶5 However, before this Court can determine if the trial court abused its

discretion in denying Drye's motion for new trial, we must review the trial

court's underlying decision which 1) granted Target's motion to vacate the

court's previous order granting Drye additional time to serve summons, and 2)

granted Target's motion to dismiss. The standard of review of an order granting

a motion to vacate is whether the trial court abused its discretion. In re

Estate of Hughes , 2004 OK

20, ¶ 8 , 90 P.3d 1000, 1003 .

The test for measuring the legal correctness of a motion to vacate is whether

sound discretion was exercised upon sufficient cause shown. Id. This

Court subjects a court's order granting a motion to dismiss to de novo

review. Wilson v. State ex rel. State Elect. Bd. , 2012 OK 2, ¶ 4 , 270 P.3d 155, 157 .

ANALYSIS

¶6 The trial court vacated the May 20, 2014, order granting Drye additional

time to serve summons on Target and dismissed her petition, finding no valid

service of process within 180 days. Drye contends this was error.

¶7 Drye asserts exceptional circumstances prevented her from effectuating

service, noting summons did not, and likely could not, issue because the Court

Clerk's Office misspelled her name. Drye states that upon learning of the

problem she filed another petition against Target on April 14, 2014, in

CJ-2014-439, in which summons was timely served, as well as an application for

additional time to serve summons on May 15, 2014, in the present case. Drye

further contends 12 O.S.2011, §

2006(B) permits the trial court to enlarge the time to comply with any Court

Rule, even after the expiration of the original time, where failure to comply

was the result of excusable neglect, citing Humphries v. Lewis , 2003 OK 12 , 67 P.3d 333 .

¶8 Target disagrees, asserting the trial court properly vacated the order

granting Drye additional time to serve and dismissing her petition. Target notes

Drye's application for extension of time offered no reason or good cause which

prevented her from serving summons within 180 days. Contrary to Drye's

assertion, Target notes the record provides summons was issued, citing the

docket sheet. 4

Finally, Target notes Drye failed to comply with the federal court's order and

judgment conditioning any future re-filing on payment of fees and costs.

See CV-2014-556.

¶9 A plaintiff must make service of process upon a defendant within 180 days

after the petition is filed. See 12 O.S.2011 and Supp. 2013, §

2004(I). If good cause is not shown why service was not made within that

time, then the action "shall be deemed dismissed" without prejudice. Id .

See also Colclazier & Assocs. v. Stephens , 2012 OK CIV APP 45, ¶ 12 , 277 P.3d 1285, 1289 , as corrected

(June 1, 2012). The statute "cast[s] a burden upon the plaintiff who resists

dismissal to demonstrate good cause why service on the defendant was not made

within the prescribed 180-day period. Whether good cause has been demonstrated

is left largely to the discretion of the trial court." Willis v. Sequoyah

House, Inc. , 2008 OK 87, ¶

11 , 194 P.3d 1285, 1289 (finding

counsel's statements referencing a clerical error in the lawyer's office

insufficient to overcome the evidentiary burden).

¶10 Drye filed the petition on October 21, 2013. Section 2004(I) required

service by April 21, 2014. Drye did not file an application for additional time

to serve summons until May 15, 2014, and after Target had filed a special

appearance and motion to dismiss on May 12, 2014. Furthermore, Drye's

application did not provide the trial court with good cause why service was not

made within the prescribed period, merely providing "Plaintiffs [sic] would

request more time in order to properly serve Defendants [sic]."

¶11 Drye contends § 2006(B)(2) permits the trial court to enlarge the time to

comply with § 2004(I), citing Humphries , 2003 OK 12 , 67 P.3d 333 . In Humphries ,

the Oklahoma Supreme Court addressed whether the 30-day deadline in 12 O.S.2001, § 696.4(B) was absolute

or was subject to extension under § 2006(B)(2).

Section 696.4(B) sets one deadline--30 days after the filing of a

judgment--for two distinct acts: the act of applying for fees and costs, and

the act of moving for an extension of time within which to apply for fees

and costs. In other words, it requires that within 30 days after the filing

of a judgment, a party must either apply for fees and costs or move for an

extension of time to apply for fees and costs. Section 696.4(B) is silent

about the consequences of failing to meet the 30-day deadline. (Emphasis

added).

Id . at ¶ 5, 67 P.3d at 335 . Section 2006(B), on the other hand,

governs motions for extension of time generally. Section 2006(B)(2) provides in

pertinent part: "When ... an act is required ... to be done ... within a

specified time, the court ... may .... upon motion made after the expiration of

the specified period permit the act to be done where the failure to act was the

result of excusable neglect."

[]The only way to construe §§ 2006(B)(2) and 696.4(B) together, giving

effect to both without doing violence to either, is to apply the "failure to

act" language in § 2006(B)(2) to both of the "acts" identified in §

696.4(B). In other words, a party who fails to timely apply for fees and

costs and fails to timely request an extension of time under § 696.4(B), and

who then files a motion for extension of time under § 2006(B)(2), must show

excusable neglect not only for failing to apply for fees and costs within 30

days but also for failing to seek an extension of time within that same

period.

This interpretation does not create any conflict between the two

statutes--it harmonizes them. Section 696.4(B) does not expressly prohibit a

motion for extension of time filed more than 30 days after judgment--it is

silent on the issue; and § 2006(B)(2) expressly authorizes motions for

extension of time filed after the original deadline has expired.

.

Id. at ¶¶ 9-10, 67 P.3d at 336 . Finally, the Court declined to apply

the well-established rule regarding specific and general statutes because the

statutes did not conflict.

[]The rule is that "where two statutes are in conflict, a special statute

will control and act as an exception to a statute of general applicability.

However, this rule applies only when the special statute clearly includes

the matter in controversy." Tulsa County Deputy Sheriff's FOP v. Board of

County Commissioners of Tulsa County, 1988 OK 44, ¶ 13 , 959 P.2d 979, 981 . Here, the two

statutes are not in conflict--they are harmonious. And § 696.4(B) does not

"clearly include" the matter in controversy--it is silent on the matter in

controversy.

Id . at ¶ 8 fn. 4, 67 P.3d at 336 fn. 4.

¶12 Neither Humphries , nor any other Oklahoma appellate court, has

addressed the interplay between § 2004(I) and § 2006(B)(2). This is an issue of

first impression. Section 2004(I) clearly addresses when service of process

shall be made or the action shall be deemed dismissed. However, § 2004(I)

provides a plaintiff the opportunity to show good cause why service was not made

within that time, thereby preventing dismissal. Contrary to the statute

considered in Humphries , § 2004(I) specifically addresses the matter in

controversy and the consequences of failing to meet the deadline or establish

good cause. Where there is an apparent conflict between two statutes, one

specific and one general, the statute enacted for the purpose of dealing with

the specific subject matter controls over the general statute. Phillips v.

Hedges , 2005 OK 77, ¶ 12 , 124 P.3d 227, 231 . Because §

2004(I) specifically deals with service of process as well as the failure to

timely serve process, it controls in the present case.

CONCLUSION

¶13 Accordingly, we conclude the trial court did not abuse its discretion in

denying Drye's motion for new trial. The trial court's August 28, 2014, order is

therefore affirmed.

¶14 AFFIRMED.

FISCHER, P.J., and WISEMAN, J., concur.

FOOTNOTES

1 On

August 24, 2009, Drye purportedly slipped and fell at a Target store in Norman,

Oklahoma. Drye filed a petition against Target on August 23, 2011, in the

District Court of Cleveland County, CJ-2011-1319. Target removed the case to the

United States District Court for the Western District of Oklahoma. After Drye

failed to respond to discovery requests, Target filed a motion to compel, which

the federal district court granted. Drye failed to comply with the order and

Target moved to dismiss. Drye failed to respond and by order entered on April

26, 2013, the federal district court dismissed Drye's case without prejudice.

However, the district court conditioned re-filing on the payment of fees and

costs. Target filed the federal court's order and judgment in the District Court

of Cleveland County pursuant to the Uniform Enforcement of Foreign Judgments

Act, 12 O.S.2011, § 719 et

seq . See No. CY-2014-556. This Court is not addressing whether this

condition applies to this Court.

2 Prior

to filing her application for additional time to serve summons, Drye filed

another petition against Target on April 14, 2014, in CJ-2014-439, in which

summons was timely served.

3 "A

'motion to reconsider' does not technically exist within the statutory

nomenclature of Oklahoma practice and procedure." Smith v. City of

Stillwater , 2014 OK 42, ¶

10 , 328 P.3d 1192, 1196-97

(citing Pierson v. Canupp, 1988 OK 47 , ¶ 3 fn. 1, 754 P.2d 548 , 550 fn. 1; Sellers

v. Oklahoma Pub. Co., 1984 OK

11, ¶ 11 , 687 P.2d 116,

118 ).

4 Target

also contends Drye's claim that the Court Clerk's Office misspelled her name

lacks merit, noting Drye apparently filed the petition with the misspelling of

her first name. Drye's petition provides "Kathi Drye" instead of "Kathy

Drye."

Citationizer © Summary of Documents Citing This Document

Cite

Name

Level

None Found.

Citationizer: Table of Authority

Cite

Name

Level

Oklahoma Court of Civil Appeals Cases

Cite Name Level

2012 OK CIV APP 45 , 277 P.3d 1285 , COLCLAZIER & ASSOCIATES v. STEPHENS Discussed

Oklahoma Supreme Court Cases

Cite Name Level

1988 OK 47 , 754 P.2d 548 , 59 OBJ 1228, Pierson v. Canupp Discussed

2003 OK 12 , 67 P.3d 333 , HUMPHRIES v. LEWIS Discussed at Length

2004 OK 20 , 90 P.3d 1000 , IN THE MATTER OF THE ESTATE OF HUGHES Discussed

2005 OK 77 , 124 P.3d 227 , PHILLIPS v. HEDGES Discussed

2007 OK 2 , 154 P.3d 1250 , ROBINSON v. OKLAHOMA NEPHROLOGY ASSOCIATES, INC. Discussed

2008 OK 87 , 194 P.3d 1285 , WILLIS v. SEQUOYAH HOUSE, INC. Discussed

2012 OK 2 , 270 P.3d 155 , WILSON v. STATE ex rel. STATE ELECTION BOARD Discussed

2014 OK 42 , 328 P.3d 1192 , SMITH v. CITY OF STILLWATER Discussed

1998 OK 44 , 959 P.2d 979 , 69 OBJ 2025, TULSA COUNTY DEPUTY SHERIFF'S F.O.P. v. BOARD OF COUNTY COMMISSIONERS Cited

1984 OK 11 , 687 P.2d 116 , Sellers v. Oklahoma Pub. Co. Discussed

Title 12. Civil Procedure

Cite Name Level

12 O.S. 696 .4, Provision for Costs, Attorney Fees, and Interest Cited

12 O.S. 719 , Short Title Cited

12 O.S. 2004 , 12 O.S. 2004 , Process Discussed

12 O.S. 2006 , Time Cited