498 P.3d 287
Okla.2021Background:
- Plaintiff Richard Dopp, an inmate on the Oklahoma Registry of Frivolous or Malicious Appeals three or more times, filed a civil suit in 2012 against the Kirkendalls alleging conversion, replevin, fraud, breach of contract, negligence and related claims.
- After years of litigation without payment of filing fees or an acceptable pauper's affidavit, the trial court dismissed the 2012 case without prejudice on Feb. 3, 2017 for failure to prepay fees under 57 O.S. § 566.2.
- Dopp filed a timely motion to reconsider and then a timely appeal; the Oklahoma Supreme Court ordered him to pay a $200 appellate deposit and dismissed his appeal on Mar. 28, 2018 for failure to pay.
- Dopp refiled the suit on Aug. 9, 2018 (having paid fees); the trial court dismissed the refiling as untimely under the one-year savings statute, 12 O.S. § 100, ruling the one-year period began Feb. 3, 2017 because filings after the § 566.2 dismissal were void ab initio.
- The Court of Civil Appeals affirmed; the Oklahoma Supreme Court granted certiorari and held that post-dismissal motions/appeals under § 566.2 are not automatically void and that the § 100 one-year period runs from the day after the first appeal became final.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether motions/appeals filed after a § 566.2 dismissal are void ab initio for purposes of tolling § 100 | Dopp: his timely motion to reconsider and appeal were proper and tolled the savings period | Kirkendalls: § 566.2 bars proceeding without prepayment; any subsequent filings are void and do not toll § 100 | Held: filings are not automatically void ab initio; judicial review is permitted and timely filings toll the running of § 100 when appeal is final |
| When the § 100 one-year refiling period begins after a dismissal not on the merits under these facts | Dopp: the period begins the day after the appeal is final (per Grider/Cole) | Kirkendalls: the period began the day after the trial court dismissed (Feb. 3, 2017) | Held: the period began the day after Dopp’s appeal became final (Mar. 28, 2018); Dopp’s Aug. 9, 2018 refiling was timely |
| Whether § 566.2’s phrasing "may not proceed" nullifies the ability to seek appellate review | Dopp: § 566.2 is permissive and does not foreclose appellate review | Kirkendalls: the statute’s language prevents further proceedings, so challenges are void | Held: "may" is permissive; § 566.2 does not automatically invalidate filings or bar judicial review (consistent with Cotner and § 2003.1 precedent) |
| Whether COCA and trial court properly dismissed the refiling and deemed Dopp’s earlier appeal invalid | Dopp: COCA erred; his appeal was validly filed and processed until dismissal for nonpayment | Kirkendalls: COCA correctly treated appeals as improper after § 566.2 dismissal | Held: Supreme Court vacated COCA, reversed trial court, and remanded — COCA erred in treating the appeal as invalid for tolling purposes |
Key Cases Cited
- Cole v. Josey, 457 P.3d 1007 (Okla. 2019) (one-year § 100 refiling period begins the day after appeal is final when dismissal is appealed)
- Grider v. USX Corp., 847 P.2d 779 (Okla. 1993) (savings statute runs from the date the appellate process is final)
- Cotner v. Golden, 136 P.3d 630 (Okla. 2006) (inmate filings/pauper affidavits must be preserved to permit judicial review of in forma pauperis determinations)
- Twashakarris, Inc. v. I.N.S., 890 F.2d 236 (10th Cir. 1989) (savings statute includes initial judgment plus any validly filed appeals; appeals must be valid to toll)
- Grimes v. City of Oklahoma City, 49 P.3d 719 (Okla. 2002) (statutory language: "may" is permissive while "shall" is mandatory)