DOPP v. KIRKENDALLDOPP v. KIRKENDALL
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
¶0 Cеrtiorari is granted for a second time to review the opinion of the Oklahoma Court of Civil Appeals, Division III. The Appellant appeals the orders of the trial court dismissing the refiling of his petition pursuant to
COURT OF CIVIL APPEALS’ OPINION VACATED; ORDERS OF THE TRIAL COURT REVERSED AND REMANDED FOR FURTHER PROCEEDINGS
Richard Lynn Dopp, Quapaw, Oklahoma, Pro Se/Appellant.
No entry of appearance has been filed in this appeal by or on behalf of the Defendants/Appellees.
I. FACTS AND PROCEDURAL HISTORY
¶1 The Plaintiff, Richard Lynn Dopp, is an inmate in the custody of the Oklahoma Department of Corrections (DOC) who is serving a life sentence without the possibility of parole.12 On or about July 9, 2012, Dopp sent to the Court Clerk of Rogers County, State of Oklahoma, a civil petition against the Kirkendall defendants and a motion for leave to proceed in forma pauperis. The clerk did not immediately file the petition and motion. The Chief Judge of Rogers County issued an order on September 4, 2012, denying Dopp‘s motion to proceed in forma pauperis. The order stated that Dopp had filed fourteen civil lawsuits since 2002, eight of which had been dismissed, and this constituted “frivolous” activity and may additionally be regarded as “malicious” by the sheer number of civil actions unsuccessfully commenced in the past ten years.2 Thereafter, Dopp filed a petition for writ of mandamus and pauper‘s affidavit in this Court (Case No. 111,059). On December 17, 2012, we assumed original jurisdiction and directed the Rogers County Court Clerk to file of record the papers tendered by Dopp. Our order also provided that Dopp‘s case was subject to “later” dismissal if he failed or refused to pay the
¶2 The original petition alleged the Kirkendalls had agreed, between the years 2007 through 2009, to provide free storage of Dopp‘s property which included several vehicles and some firearms. Dopp alleged this contractual agreement also provided an option for the Kirkendalls to purchase the property. He further assertеd the Kirkendalls refused to purchase any of the property and failed to respond to Dopp‘s demands to allow him an avenue to retrieve his property. The petition asserted six causes of action: replevin, conversion, fraud, negligence, breach of contract, and bailment. On July 28, 2014, Dopp filed a second amended petition in which he named an additional defendant, Jamie Glass, and alleged new causes of action: conspiracy and defamation of character/libel/slander.
¶3 On March 8, 2013, the Kirkendalls filed a motion to dismiss asserting Dopp‘s causes of action were barred by the applicable statute of limitations. Seven months later, Dopp filed a motion to expedite a determination of the matter. The court explained in its January 2, 2014 order that the case had fallen off the radar due to a move of the courthouse; it converted the motion to dismiss to a motion for summary judgment and granted time for the parties to present material pertinent to the motion. The court filed its order on June 26, 2014. The order converted the motion for summary judgment back to a motion to dismiss and denied the motion. It found reasonable minds could differ as to when the causes of action accrued. The order makes no mention about the Oklahoma Registry of Frivolous or Malicious Appeals (Registry), or payment of filing fees or a pauper‘s affidavit. The defendant Jamie Glass also filed a motion to dismiss on October 14, 2014. It alleged Dopp‘s causes of actions against her were barred under the applicable statute of limitations and made no mention about the Registry, filing fees or pauper‘s affidavit. The court denied this motion on September 18, 2015.
¶4 Although no required filing fees or acceptable pauper‘s affidavit were paid or provided by Dopp, the case proceeded for years. On April 29, 2016, the Kirkendalls filed a motion for summary judgment. In their motion, and what appears to be for the first time, they alleged Dopp‘s name appeared on the Registry at least three times prior to filing or attempting to file his original petition and, pursuаnt to
In addition, they noted, this Court‘s December 17, 2012 order in Case No. 111,059 provided that Dopp‘s case is subject to dismissal if he either does not pay the required costs or present an acceptable pauper‘s affidavit. The motion further stated that Dopp‘s case was ripe for dismissal for failure to pay the required costs. On June 13, 2016, a pre-trial conference was held wherein the Kirkendalls’ attorney made an oral motion to dismiss the case which was denied by the court. Later, on August 29, 2016, the сourt reconsidered its ruling. In its order, the court noted Dopp‘s name appeared on the Registry at least three or more times. The court granted Dopp thirty days to demonstrate why his case should not be dismissed without prejudice for non-payment of the fees and costs. In Dopp‘s “show cause” responses he does not dispute that his name appears on the Registry three or more times, he instead argued that there is no proof that his name
¶5 On February 3, 2017, Judge Condren issued an order dismissing the matter without prejudice for failure to pay the required fees. Within ten days, February 13, 2017, Dopp filed a motion to reconsider.4
His motion reiterated that he has been allowed to proceed since 2012 and a dismissal with a subsequent re-filing would be an unnecessary waste considering the amount of litigation, discovery and resources expended in the matter. He further stated that his mother would be willing to pay his filing fees if he is not otherwise allowed to proceed further in the matter.5
He requested the court to advise him of the exact amount of the rеquired filing fees and grant him thirty days to satisfy this amount. On November 1, 2017, the court denied his motion to reconsider.
¶6 On November 20, 2017, Dopp timely appealed the February 3, 2017 and November 1, 2017 orders by filing a petition in error and motion to proceed in forma pauperis in this Court (Case No. 116,545). Two days later, this Court responded with a show cause order. In our order we noted Dopp‘s name appeared at least three times on the Registry and such appearance “may” bar him from pressing his appeal without prepayment of all fees required by law pursuant to § 566.2. In accordance with our opinion in Cotner v. Golden, 2006 OK 25, 136 P.3d 630, ¶10, we allowed him to show cause as to why he should “nonetheless” be allowed to proceed in formа pauperis. Dopp responded arguing § 566.2 was unconstitutional and the purpose of preventing frivolous lawsuits was moot here since the court did not find his case to be frivolous and had already allowed him to proceed for four and one-half years. He notes the provisions of 28 O.S. § 152 require the court to promptly set for hearing the determination of eligibility to litigate without payment of fees or costs.6
He requested to proceed in forma pauperis regardless of his name appearing on the Registry. On February 20, 2018, we ordered Dopp to pay the $200.00 appellate cost deposit within thirty days or the appeal would be dismissed. No payment was made and on March 28, 2018, this Court dismissed thе appeal.7
Mandate was issued on April 25, 2018.
Dopp filed a motion to reconsider within ten days of the order. He asserted in his motion that it was undisputable that he had appealed the February 3, 2017 order and that appeal was not resolved until March 28, 2018. He noted that this Court, in Grider v. USX Corp., 1993 OK 13, 847 P.2d 779, ¶14, held that the critical date for determining when the savings statute runs is the “date on which the appeal process is final.” Therefore, he argued, the one year period to refile his petition began from March 28, 2018, not February 3, 2017. On October 30, 2019, the court issued its order denying the motion to reconsider. It held:
[A]ny pleading filed by Plaintiff in CJ-2012-705 after the Court dismissed that case without prejudice was void ab initio pursuant to
57 O.S. 566.2 . Therefore, the Plaintiff‘s Motion to Reconsider/Alter or Amend Court‘s Order of Dismissal and his appeal of the Court‘s rulings did not toll the one-year savings statute that began on February 3, 2017 when the Court dismissed the case without prejudice for failure to pre-pay filing fees, pursuant to Title 57 O.S. 566.2.
¶8 On November 18, 2019, Dopp timely filed a petition in error with this Court and paid the required cost deposit (Case No. 118,412). He challenged both the order of dismissal and the order denying reconsideration. The defendants did not enter an appearance. Dopp asserted this Court‘s ruling in Case No. 116,545 (March 28, 2018) dismissing his appeal started the running of the savings statute and the defendant‘s argument that February 3, 2017 is the proper date essentially is a finding that both his timely filed motion to reconsider in CJ-2012-705 and his timely filed appeal in Case No. 116,545 are void. The matter was assigned to the Oklahoma Court of Civil Appeals (COCA), Div. III, on January 29, 2020. On April 28, 2020, COCA issued its opinion. The COCA affirmed the trial court‘s ruling. The court noted that Dopp had asserted he timely filed a motion to reconsider in CJ-2012-705 which extended his time to appeal and thus the completion of the first appeal should be the date to start the running of the savings statute. The COCA ruled that “this would only be the case if the motion [to reconsider] was an appropriate filing in the first place.” It held that “[w]hen the court dismissed the action without prejudice on February 3, 2017 for failure to comply with
¶9 On May 11, 2020, Dopp filed a timely petition for rehearing which COCA denied on May 22, 2020. His petition asserted that in CJ-2012-705, the court‘s order denying his motion to reconsider made no mention that the motion was void ab initio but instead ruled upon it normally as it would with any other motion to reconsider in any оther case. His later timely appeal in Case No. 116,545 was also accepted by this Court and our order dismissing the matter made no mention that his motion to reconsider was void ab initio or that his appeal was untimely. Had the motion to reconsider been void ab initio, then an appeal of the February 3, 2017 order would have been untimely.10
¶10 On June 3, 2020, Dopp filed a petition for certiorari and paid the required fee of $100.00 pursuant to this Court‘s order. On January 19, 2021, this Court granted his petition and remanded the appeal to COCA, Div. III, and directed it to consider our precedent in Cole v. Josey, 2019 OK 39, 457 P.3d 1007, ¶4, and Grider v. USX Corp., 1993 OK 13, 847 P.2d 779.1112
Three weeks later, February 11, 2021, COCA, Div. III, issued another opinion which again affirmed the trial court. The COCA found that Cole and Grider were distinguishable because the operative aрpellate timeline in those cases arose from “validly filed appeals.” It determined that Dopp‘s “appeal of the 2012 Case was not a proper or valid appeal because he was not permitted to proceed following the initial dismissal of February 3, 2017.” Dopp filed a second petition for certiorari which we granted on June 7, 2021.
STANDARD OF REVIEW
¶11 When reviewing a trial court‘s dismissal of an action the appellate court examines the issues de novo. Rogers v. Quicktrip Corp., 2010 OK 3, 230 P.3d 853, ¶4. The
ANALYSIS
¶12 The issue before this Court is whether an inmate‘s motion for new trial or appeal a valid way to contest an order of dismissal for failure to comply with
¶13 In the second case, CJ-2018-331, the trial court held for the first time that any pleading Dopp filed after its February 3, 2017 order of dismissal in the first case, CJ-2012-705, was void ab initio. There was no mention of this in the order denying his motion to reconsider in the first case. In affirming that decision, the COCA held that the motion to reconsider in the first case was not appropriate because Dopp was no longer permitted to proceed after the order of dismissal. It further found that Cole and Grider were distinguishable because in each case there was a validly filed appeal. It determined Dopp‘s appeal of the first case was not proper or valid because he was not permitted to proceed following the February 3, 2017 order of dismissal. Taking the COCA‘s opinion to its logical conclusion, an order dismissing an action pursuant to § 566.2 would be unchallengeable. Although in the first appeal, Case No. 116,545, we ordered Dopp to pay the required appellate cost deposit and dismissed his appeal when he failed to comply, we did not find his appeal to be invalid or untimely.
¶14 Section 566.2(A) provides:
A. A prisoner who has, on three or more prior occasions, while incarcerated or detained in any facility, or while on probation or parole, brought an action or appeal in a court of this state or a court of the United States that has been dismissed on the grounds that the case was frivolous, or malicious, or failed to state a claim upon which relief could be granted, may not proceed in a matter arising out of a civil case, or upon an original action or on appeal without prepayment of all fees required by law, unless the prisoner is under immediate danger of serious physical injury.
The trial court‘s October 30, 2019 order in the second filed case and the COCA‘s second opinion are based on
¶15 We have, however, held that similar language, i.e., “may not proceed,” found in
Subsection D of this Section provides (emphasis added):
D. If the court determines that the filing is a noncomplying petition, motion, or other pleading filed by an inmate in a penal institution appearing pro se, the action may not proceed, and it shall be returned together with a copy of this statute and a statement of the reason or reasons for its return. If the court determines that the inmate-plaintiff knowingly and willfully failed to comply with all the requirements of this section, the court may dismiss the case with prejudice.
Even though this subsection states a noncomplying filing shall be returned and the prisoner “may not proceed,” we have held that a pauper‘s affidavit provided by a prisоner under this section must be filed by the court clerk so that the court‘s final order adjudicating in forma pauperis status may be subject to judicial review.
¶16 In Cotner, a prisoner mailed a petition and pauper‘s affidavit to be filed by the court clerk. Cotner v. Golden, 2006 OK 25, 136 P.3d 630, ¶1. The petition and affidavit were not filed by the clerk and were returned to Cotner with a notation “Denied” and signed by the judge. Id. Cotner, then filed a petition for writ of mandamus with this Court to compel the clerk to file his petition and to be able to proceed without payment of costs. Id. We granted the petition and issued the writ. We held, that “[w]hile a noncomplying affidavit shall be returned to the prisoner [pursuant to § 2003.1 (D)] the original petition and affidavit must be preserved by the clerk for the purpose of creating a record for judiсial review.” Id. ¶6. “Judicial review of a final order pursuant to [§ 2003.1] that adjudicates in forma pauperis status is by an appeal to this Court.” Id., ¶7. We determined that although Cotner did not possess a liberty or property interest in obtaining pauper‘s status, his chose in action was a type of intangible personal property protected by the Due Process Clause of the 14th Amendment. Id., ¶6. We held that he must be given an opportunity to create a sufficient record to permit “meaningful appellate review of a trial court order that acts as an end-of-the-line disposition of it.” Cotner, 2006 OK 25, ¶6. We further held:
No exercise of judicial discretion by a District Court in a civil case at law and in equity is beyond this Court‘s constitutionally vested appellate jurisdiction, and a party must be afforded an opportunity for appellate review of that exercise.
Id. Therefore, we did not interpret the language “may not proceed” in § 2003.1 (D) to prohibit Cotner from having the opportunity to seek judicial review of the final order.
¶17 Under the same rationale, we do not find the language in § 566.2, i.e., “may not proceed,” forecloses the opportunity for judicial review of the February 3, 2017 order of dismissal. Dopp timely sought judicial review. He filed a motion to reconsider within ten days of the February 3, 2017 order.4 His time to appeal was stayed until the motion had been disposed of pursuant to
¶18 In our January 19, 2021 order granting Dopp‘s first petition for certiоrari, we remanded the matter to the COCA and directed it to consider this Court‘s precedent in Cole v. Josey, 2019 OK 39, 457 P.3d 1007, ¶4 and Grider v. USX Corp., 1993 OK 13, 847 P.2d 779. These opinions discuss when the one-year period begins to run to refile a cause of action pursuant to
We hold that an “action” includes the initial judgment and any validly filed appeals that suspend the finality of the judgment. Thus, if a plaintiff‘s case were dismissed otherwise than on the merits and the plaintiff filed a timely appeal or a timely motion that tolled the time required for appeal, the plaintiff would be given an additional year from the time the appeal or motion was adjudicated in which to refile a complaint. Under these circumstances, the “action” would continue until the appeal was resolved. This interpretation compliments the first clause of the statute which does not take effect until after an appeal. However, the appeal or the motions tolling the time for the appeal must be valid. In this case, the plaintiffs’ only tolling motion was not timely filed, and their othеr motion did not suspend the judgment. As such, the “action” was not continuing and the plaintiffs had one year from the failure of the action (the dismissal) to refile a complaint.
Id. at 237--38 (emphasis added). In determining the validity of an appeal, the Twashakarris court focused on whether the motion which stayed the time to appeal was timely filed. In the present case, both Dopp‘s motion to reconsider and his petition in error were timely filed. Further, the determination as to whether an appeal decided by this Court was timely filed is up to the sole discretion of this Court. As mentioned, in Case No. 116,545 we did not find Dopp‘s appeal to be untimely. That appeal was only dismissed because Dopp failed to pay the аppellate cost deposit after this Court ordered Dopp to pay the amount.
¶19 Title
If any action is commenced within due time, and a judgment thereon for the plaintiff is reversed, or if the plaintiff fail in such action otherwise than upon the merits, the plaintiff, or, if he should die, and the cause of action survive, his representatives may commence a new action within one (1) year after the reversal or failure although the time limit for commencing the action shall have expired before the new action is filed.
¶19 Pursuant to Cole and Grider, the finality of the action occurred when Dopp‘s first appeal was final. On March 28, 2018 we dismissed his first appeal for failure to pay the required appellate cost dеposit pursuant to § 566.2. Thereafter, Dopp had one year from the day after our decision was final to refile his petition.
CONCLUSION
¶20 We hold the language in
COURT OF CIVIL APPEALS’ OPINION VACATED; ORDERS OF THE TRIAL COURT REVERSED AND REMANDED FOR FURTHER PROCEEDINGS
¶21 Darby, C.J., Kauger, Edmondson, Combs, Gurich, Rowe and Kuehn, JJ., concur;
¶22 Kane, V.C.J. and Winchester, J., dissent.
¶23 Kane, V.C.J., with whom Winchester, J., joins, dissenting
I believe that the Appellant‘s filings did not toll the one-year savings statute because they were void ab initio.