Ross v. Kelsey Hayes, Inc., 825 P.2d 1273

Ross v. Kelsey Hayes, Inc.

825 P.2d 1273

Okla.

1991

Check Treatment

*1 thе information at the time the (Schiff, by Joseph Hardin R. Lun- obtain Waite & being Ill., certified for enforcement Sarno, award was dy Chicago, Cynthia and against PepsiCo is collateral attack on counsel). the award. Keller, Keller, by E.W. Fernald & Keller Way Lee have in- agree We could respondent Robert Glen City, Oklahoma for possible third quired into settlements with Bragg. compensation parties the workers’ inquire to Way’s award. Lee failure so HODGES, Vice Chief Justice. However, binding PepsiCo. we rec- now ognize potential for settlement after compensation The facts in this workers’ Therefore, Pepsi- was entered. the award disputed. On November case must be allowed ask claimant wheth- Co (claimant) Bragg Robert Glen he er made settlements with or received disability permanent partial bene- awarded party, only third set- any credits from compensate injuries he received fits for made the award was en- tlements after driving truck for his in an accident while tered. The cause is remanded to the trial Freight. The Way Motor employer, Lee inquiry. tribunal for such appellate panel award was sustained TRIAL VA- ORDER OF TRIBUNAL pay Way failed to on March 1985. Lee CATED; REMANDED. CAUSE any and is defunct. of the award now January On the Workers’ Com- OPALA, C.J., LAVENDER and award, pensation Court certified SUMMERS, JONES, (in JJ., lieu and S.J. court, against enforcement in the district KAUGER, certified her J. who Inc., Way’s PepsiCo, guarantor of Lee as disqualification), concur. PepsiCo liabilities. compensation workers’ SIMMS, DOOLIN, and HARGRAVE order. challenges now certification JJ., WILSON, ALMA dissent. several issues which PepsiCo has raised during pendency of this were resolved

appeal by Sharp, PepsiCo, Inc. (Okla.1989), PepsiCo, Inc. v. Bur-

den, (Okla.1989). One unre-

solved issue remains.

PepsiCo argues that it should have been inquire the claimant whether allowed Ross; ROSS, Jerry Travis J. a/k/a any party third had made settlements with Ross, Respondents, and Louise arising claims out of accident compensa- he received workers’ (Supp. tit. tion. See Okla.Stat. HAYES, INC., a Delaware cor- KELSEY 1986) (“the employer’s insurance carrier Bridgestone/Firestone, poration, any, only deficiency, if shall contribute Inc., Tire & Rubber Firestone f/k/a recovery amount of between the Co., Petitioners. actually person collect- such other No. 77018. ed, compensation provided or esti- Act Compensation the Workers’ mated Supreme of Oklahoma. Court case”). Thus, PepsiCo invokes the for such 30, 1991. July employer’s right to know of third guard against recov- settlements to double 17, 1992. Rehearing March Denied responds stating ery. Claimant Lee inquiry been made could have Further, Way at time the award. argues PepsiCo’s attempt

claimant *2 Pettigrew, Noland,

William D. Michael L. City, petitioner, Oklahoma Bridge- stone/Firestone, Inc. Threlkeld, Ward,

C. William C. Todd City, petitioner, Oklahoma Kelsey Hayes, Inc. Travis,

Rex K. City, Eugene Oklahoma Ralston, Kan., Topeka, B. respondents. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍KAUGER, Justice. question presented is whether an

action dismissed prejudice, which the defendants have not been served summons, be refiled within one to the sav- with summons on On Novem- pursuant October year the dismissal was amended to 100.1 We find ber ings clause of O.S.1981 § of the previous reflect the institution cause may. it prejudice. The and its dismissal without *3 filed a motion to dismiss on manufacturers FACTS 13, contending that the suit December was they were not noti- time barred. Because 7, 1987, respondent, On the December original by service of fied of the action (Ross), injured a Ross was when Travis J. argued summons, Bridgestone/Firestone exploded. Ross filed inflating tire he was properly not the action had been com- Kelsey Hayes, against petitioners, the suit pursuant to its menced sav- (collec- Inc. Bridgestone/Firestone, Inc. and Although ings provision apply. not the did tively, Bridgestone/Firestone/manufactur- the manufacturers’ mo- trial court denied 21, 1989, ers), theory under a July on January on the tion to dismiss al- products liability. Ross manufacturers’ appeal, interlocutory for judge certified leged that wheеl and tire were the metal 952(b)(3),4 pursuant to 12 the O.S.1981 § design defective in and/or manufacture question of whether an action dismissed in they placed the stream of were prejudice in which the defendants commerce. On November with- may not served with summons have been having out the manufacturers with served year of be refiled within one the dismissal action, Ross his notice of the dismissed pursuant to the clause of O.S. prejudice.2 The statute of cause without petition for certiorari 100. The was on Ross’s cause of action ran limitations on 8, 1991, setting a granted on March brief- December Bridgestone/Fire- ing cycle directing action, the cause of Relying on same on prepare stone to and transmit the record briefing cycle complet- filed a new action on October Ross certiorari. The May ed on Bridgestone/Firestone was served taking, detaining injuring personal proper- provides: or 1. Title recovery time, ty, including specific the actions for any is due "If action commenced within injury judgment plaintiff personal property; action for the and a reversed, thereon for another, contract, plaintiff arising if the in action rights fail on not or, merits, plaintiff, enumerated; on otherwise than an action and not hereinafter die, he and the cause of action if survive, should ground for of fraud —the cause relief representatives may a his commence case deemed to in such shall action (1) year within after the rever- new action one discovery until of the have accrued fraud_” althоugh com- or failure the time limit for sal mencing expired before the action shall have the new action filed.” pertinent provides § 952 4.Title 12 O.S.1981 part: provides 12 O.S.1981 684 Title part: reverse, (b) Supreme Court va- "... may, payment on the of costs “A following modify any orders cate or court, any order dismiss civil without an court, judge thereof: the district brought by at time action him order, Any which affects sub- ... 3. other praying for petition or answer of intervention controversy part the merits of the stantial is filed in the affirmative relief him judge that an immedi- when the trial certifies action....” may materially appeal advance ulti- ate Corp., litigation; provided, Motors 3. Kirkland General termination mate however, (Okla.1974); Court, Title 12 O.S.1981 Supreme in its dis- that the cretion, may appeal. If the refuse hear recovery than jurisdiction "Civil actions other Supreme Court assumes only brought can real within appeal, in its order whether it shall indicate following periods, action after the cause of stayed or trial court shall be action in the accrued, shall have and not afterwards: continue....” shall (2) years: action Third. Within two An ... trespass upon property; an real by filing petition WITHOUT AN ACTION DISMISSED and that service of THE DE- constitutionally required IN WHICH summons is not PREJUDICE pro- BEEN FENDANTS HAVE NOT invoke recommencement-of-actions agree. MAY BE vision. We SERVED WITH SUMMONS REFILED ONE YEAR OF WITHIN

THE DISMISSAL PURSUANT TO A. THE OF 12 SAVINGS CLAUSE O.S. pursuant An action “commenced” 2003 and 12 O.S. argues Bridgestone/Firestone by filing 1981 100 *4 savings provision5 of 12 100 O.S.1981 § the court. may not be invoked to extend the statute of year limitations for one from the date of a Prior to the institution of the Oklahoma voluntary Code,712 Plеading dismissal if the does not O.S.Supp.1984 2001 et § original serve the defendant in the seq., cause. the time within which action was an applica The manufacturer also insists that deemed purposes commenced limitation provisions by tion of the of renewal 100 to defined 12 was O.S.1981 Because § § required extend the statute of limitations in causes 97 that the defendant be served § in the defendant has been which not noti with summons in order to an commence action, original fied of claim savings provision violates due of 100 could § process.6 Ross asserts that is' running an action not be invoked to extend the of a meaning “commenced” within the of 100 in statute of limitations an in action which § Pleading governs 5. Statutes 12 like O.S.1981 see note "The Oklahoma Code supra, variously savings provi- procedure are referred to as of district courts Oklahoma sions, statutes, or renewal cogniza- recommencement-of- in all of suits a civil nature whether Elec., provisions. Wiley Brantley, actions Inc. equity except ble as at in cases law or a where (Okla.1988); 760 184 Matter specifies procedure. statute a different It of (Okla.1987). 743 P.2d 648-49 just, speedy, shall be construed secure to of inexpensive every determination of ac- presented 6. We note this issue was not to may tion. act This be cited as 'Oklahoma constitutionality gen the trial court. Issues of Pleading captions part Code’. Section are erally must be raised in the court be trial to this act.” See, Anderson, upon appeal. reviewable Bane Section 2001 amended effeсtive Novem- Co., (Okla.1989); Bryant & 786 P.2d 1237 ber 1985. The statute remains identical to its Co., Ring v. Public Serv. 1358 counterpart except provides it However, (Okla.1989). process lack of due through sections be 2027 are to cited as the exception general to claims rule that Pleading Oklahoma Code. presented issues not to the trial court will be not appeal. considered on Pettit v. American Nat'l Cotner, (Okla.1966); 8. Kile v. 415 P.2d 961-62 Bank, (Okla.1982). provides: Title O.S.1981 97§ Const, provides: The Okla. art. 7§ commenced, "An action shall be deemed with- life, person deprived liberty, "No shall be article, meaning in of this as to each property, process without due law.” defendant, at the date of the summons which Const, provides United States amend. 5 in codefendant, served is on him or on a who is pertinent part: joint a contractor or otherwise united in inter- life, person deprived “No shall be ... publication by est with him. Where service liberty, property, process without due proper, the action shall be deemed com- law ..." publication. menced at date the first Const, United States amend. 1§ attempt An to commence an action be shall equivalent deemed thereof, to the commencement any "... No shall State make or enforce law article, within the of this abridge privileges which shall or immuni- party faithfully, properly when the and dili- States; ties of citizens of the United nor shall gently service; procure endeavors to a life, any deprive any person liberty, State attempt must be followed the first law; property, or deny without due nor summons, publication or service of the or if person jurisdiction to within its sought procured mailing, service is be to protection equal of the laws.” by receipt containing a mail sum- certified mons, O.S.Supp.1984 provides: Title sixty days." within ever, Legislature accomplished.9 plainly Sec where the has ex- had not been service replaced itself, no repealed pressed judicial tion there is need for 97 was provides: It by 12 interpretation.14 language The 100 is unambiguous stating the actions to filing a civil action is commenced “A applies “any it action commenced — its statu- petition with the court.” Unlike time”. Because an action within due not 97—service need tory forerunner — pursuant by filing “commenced” to pur- action10 to commence civil obtained court, in the trial service need not The action is commenced suant original in an in order be obtained by filing petition with the court.11 savings provision avail savings The clause timely filed applicable 100 is to lawsuits finding that an action dismissed Our grounds unrelated and later dismissed prejudice in which the defendants controversy.12 of the Be the merits have been served with summons nature, provi cause of its remedial 100’s year refiled within one dismissal liberally sions are to be construed.13 pursuant clause of O.S. rule of construction cardinal *5 legislative supported by 1981 100 is the Committee determination of intent. How- § 10. Title provides: O.S.Supp.1984 Dist 2002 & C Co. v. School No. 12 9. C Tile 554, (Okla.1972); 7, Myers v. Kan 503 P.2d 558 ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍“There shall be one form of action be 676, sas, Co., Ry. 200 Okl. 199 P.2d Okla. & Gulf known ‘civil action’.” as see, Cordes, 600, (1948). Meshek v. 164 602 But 40, 921, (1933) (Failure 925 of Okl. 22 11. Buckner v. General Motors Corp., 760 service, irregular defective action due to quashing 803, (Okla.1988); O.S.Supp.1984 12 809 Title summons, juris of of service of want 2003, 9, supra. see note diction, prejudice for fail and dismissal without Adams, by "Highlights Changes of Made C. the pay ure to costs constitutes "failure otherwise Code,” Pleading than on the merits" within of re Oklahoma 55 O.BJ. 1875 statute.). (1984). commencement-of-actions change Probably important its recommencement-of- the most in- Oklahoma received "... 100, 1, provision, volving 12 see note process actions O.S.1981 of is that commence- service supra, from the laws of Kansas. Matter Es longer depend will ment of an action no of 650, Speake, supra; see at tate note 5 Amsden Instead, of service of the summons. an action Johnson, (1916). 74 P. v. Okl. 158 1148-49 petition be when the is filed will commenced Eppler, O'Neil v. Kan. 162 P. 311-312 In 99 court_” with the (1917), Supreme the Kansas Court found its Fraser, "Pleading Oklahoma G. Code,” Under the New applicable not in a clause was 55 O.BJ. 1866 particulars in which a bill of had been filed case Pleading of the Oklahoma "... Section 2003 no service was obtained. This decision is provides that an action is commenced Code binding on our construction of Oklahoma’s not court; by petition filing with the the is- 1) savings provision for two reasons: The O’Neil prerequisite suance of a summons adoption §of 100 decision was rendered after action_” of an the commencement and, best, by Legislature may at be con persuasive Valley authority. Dev. sidered Corp. City (Okla. Vista 12. Matter Estate of Speake, see note 5 at of Arrow, v. Brokеn 349 of supra. Estate, 1988); In re Fletcher’s 2) (Okla.1957); rendering 311-12 13. Dumas v. United States, 103 F.2d 679 decision, the O'Neil court relied on then Cir.1939); (10th Valley Corp. City Vista Dev. statute, operative Kansas commencement Arrow, supra; C which, note C & Tile supra, Broken see 12 see note like O.S.1981 of 7,No. note provided Independent School Dist. see 9 an com Co. v. action would deemed Legisla upon supra. service of defendant. menced at process, like that undertaken the enact tive note, O.S.Supp.1984 of see this ment Arrow, Valley Broken see Vista Dev. infra, departure affords an effective means 9, supra; Oklahoma Northwest Datsun v. binding of a from even the force sister states’ (Okla. Comm’n, 736 P.2d Motor Vehicle judicial interpretation. Matter of 1987). 650, supra. at see note 5 provides: O.S.Supp.1984 § Title 12 by filing "A civil action is commenced petition with the court.” comments, defending notice Comment violates due process recognize that under the Oklahoma21 altered Okla- and United law, States Constitutions.22 The manufacturers provide change homa argue certainty by original needed that dismissal cause order to add made in without notice property affected a filing petition the date interest making in the limitations defense. Ross contends the date commencement the action property that no interests arise purposes, including application all 100,23 general O.S.1981 statute limi- the statute limitations.16 Section 100 is tation.24 statutorily but an extension of the estab- period.17 Although lished limitations provided by The shelter of limi- statutes binding, they helpful comments are not tation never has been considered a funda- in clarifying that an action is “commenced” right.25 Supreme mental The United States pursuant to 12 in Tulsa Professional recognized Court filing Serv., Pope, Collection Inc. v. 485 U.S. court.20 478, 485-487, 108 S.Ct.

L.Ed.2d that a cause of intangible inter- B. protected est the fourteenth amend- However, Supreme ment. Court also Because the cause action was not espoused running gener- that the mere aof barred, protecta- no constitutionally al normally statute limitation is insuffi- ble interest in the statute limita- implicate cient to due and that tions arose. state’s running limited involvement *6 Bridgestone/Firestone asserts period usually of the time falls short of application provision 100’s savings constituting type of state action rе- voluntarily to a quired implicate cause dismissed without to fourteenth amendment 2003, Smith, 15. O.S.Supp. (Okla.Ct. Committee to Vinyard Comment v. 1984, also, 65, App.1991). Ewing, G.S. v. (Okla.1990) (Official comments the Uni- to simplifies "This section the determination of Custody form Child Jurisdiction Act referred to an when action is commenced. Under for- determining appropriate jurisdiction to hear 12, (1981), mer Okla.Stat. tit. § 151 an action custody dispute.); Day child State ex rel. upon filing was deemed commenced of a Inc., 1334, Energy, Southwest Mineral petition clerk_ and issuance of summons (Okla.1980) (Official Comment's purpose applying For the a stat- commentary Draftsmen's to the Uniform Securi- limitation, however, ute of an action was upon ties Act relied to determine in- deemed commenced as to each defendant terpretative history of the federal act in- upon when the summons was served him. tended to be carried over into the act state 12, (1981)_ Okla.Stat. tit. 97§ Section patterned the Uniform Securities Act was after changes Oklahoma law and adds needed statutes.). the federal certainty by making filing the date petition the date of commencement of the Const, 2, 7, 6, supra. 21. The Okla. art. see note purposes, including application action for all limitations_” of the statute of Const, 6, States United amend. note see Const, supra; United States amend. see note also, Carlson, 16. See Mott v. 786 P.2d 1247-48 6, supra. (Okla.1990). 1, supra. 23. Title 12 O.S.1981 see note Speake, 17. Matter Estate see note 5 at supra. Matter see note 5 at 652- supra; supra. 12 O.S.1981 see note Title 12 see note supra. Donaldson, Corp. 25. Chase U.S. Sec. 65 S.Ct. 89 L.Ed. supra. 19. Title 12 O.S.1981 see statutory period in a of time and an ade general stat- a Section protections. his/her quate opportunity prepare presents no conflict It limitations.26 ute of However, 100 was enacted case.32 against a prohibition 46’s27 art. with flowing harsh results from the avoid the lifting Even a of limitation. special statute fails general rule that where and per se not be the statutes’ bar expired dur of limitations has statute Amend- the Fourteenth offense interim, any ing subsequent action Generally, statutes of limitation ment.28 par untimely.33 protections Its extend to rather than substantive. procedural later dismiss ty timely who files a case and until a claim rights vest in them No prejudice and without es the cause without provi- governing barrеd having the defendant with summons served operates to extend the Section 100 sion.29 original cause.34 Because no interest It statutory limitation. serves applicable arose, there in a statute of limitation ever enlarge pursuit the time for solely deprivation.35 no has constitutional been remedy otherwise would proceed is remanded for further cause provision Because the barred.30 opinion. ings not inconsistent with this period operated extend the within CERTIORARI PREVIOUSLY GRANT- cause, pursue could his which Ross ED; CAUSE REMANDED. running of the not barred claim was To applicable statute of limitations. invoke V.C.J., DOOLIN, HODGES, protectable prop- protections, constitutional HARGRAVE, ALMA WILSON apart proce- erty interests must exist JJ., SUMMERS, concur. constitutionally No guarantees.31 dural Bridge- right arosе in protectable ever OPALA, C.J., and LAVENDER stone/Firestone. SIMMS, JJ., dissent. Justice, OPALA, whom Chief CONCLUSION SIMMS, Justices, join, LAVENDER and dissenting. purpose recognize that the stat We today pronounces ute limitations is to ensure that that under The court *7 currently pleading code1 the against the effective has notice of a claim him/her with rely on of limitations must Speake, at interest in a statute 26. Estate see note 5 652- Matter of 53, proposition a final deter- supra. the that there has been barred. No constitu- mination that claim is Const, 5, against applying prohibition an ex- 46 in exists 27. The Okla. art. tional pre- a cause not part: statute of limitations to tended barred.). viously not, except Legislature shall as otherwise "The Constitution, pass any local provided in this Denton, 855, (Okla. 861 authorizing: Chandler v. spеcial 32. law 1987); Independent School C & C Tile Co. v. For of civil or criminal action ... limitation 7, 9 No. see note at 559. Dist. Inc., Myers, & Union v. Robbins 28. International City Valley Corp. Broken v. 33. Vista Dev. 243-44, 50 U.S. 97 S.Ct. 429 Annot., Arrow, supra; “Statute Per- see note (1976). United States Const. L.Ed.2d 439 Original mitting After Failure of New Action supra. see note amend. of Limita- Within Period Action Commenced tion, Original Ac- Applicable in Where as Cases Co., Corp. Trinity Broadcasting v. Leeco Oil 29. Jurisdiction," 6 A.L.R.3d Failed for Lack tion (Okla.1984). 1366 see note 5 at 30. Matter See, Carlson, supra. see note Mott supra. Co., Corp. Trinity Broadcasting Oil v. Leeco F.Supp. Dept., 661 v. Illinois 31. Eftekhara 29, supra. see note also, (N.D.Ill.1987). Piper Kramer v. See (11th Corp., Cir. F.2d Aircraft seq. 1989) (An 2001 et argument alleging §§ vested provision in 12 O.S.1981 one-year savings today’s construction of offends the two-year uniformity-of-procedure extend the mandate may operate found in Art. 5 46 and Okl. Const.5 period prescribed by §§ limitation action 953 for the of an commencement tort, though in volun- plaintiffs even the I tary of the prejudice” dismissal “without earlier action had been effected before AN ACTION CANNOT FAIL, WITHIN process I served. must recede from was THE MEANING OF 12 O.S.1981 today’s pronouncement. Voluntary dismis- 100, ON AN ISSUE DEHORS THE sal process my before issues is in view MERITS AN BEFORE ADVERSARY plaintiffs unilateral withdrawal the PROCEEDING BEGINS claim “failure does constitute a in purpose Section is identical and in of the action otherwise than on the mer- English prototype, form to its English the phrase its” within the key Limitations Act of In the common- 100. Even if 100 were available statute, English law sense under unserved, invocation ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍one previously the commencеment of an action occurred extending its in this benefit case would adversary process began upon violate the defendant’s basic due service writ.7 If the first action failed guarantee. An unserved defendant would grounds unrelated merits of the not have been aware that a had in dismissal controversy, plaintiff permitted peri- fact occurred and that the limitations sue out new writ —known as “journey’s Moreover, od thus came to be Every extended. account”.8 condition the prototype 100, variously error, 2. The terms of 12 O.S.1981 pass reversed verdict or a "savings”, called the plaintiff, upon alleged "recommencement-of-ac- matter in arrest of statute, provide: tion" or “renewal” judgment, judgment given against be time, plaintiff, nothing by any plaint, that he take "If his action is commenced within due bill; judgment and a reversed, writ or or if the said plaintiff thereon for actions shall brought by original, or if the action and the such defendant fail merits, outlawed, upon plaintiff, otherwise than therein and shall after reverse or, die, if he outlawry; should and the cause action that in such all cases the survive, representatives may heirs, his commence a plaintiff, his executors or administra- (1) year new action within one rever- tors, after the require, may as the case shall commence although sal or failure the time limit com- suit, time, a new action or time to within mencing expired shall have reversed, year judgment after or such mine.) (Emphasis the new action is filed.” given against plaintiff, outlawry re- versed, (Emphasis added.) and not after." provide terms of 12 O.S.1981 § 95 York, Gaines New 215 N.Y. (1915); 109 N.E. see also Edmison recovery “Civil actions other than for the *8 252, 1103, Crutsinger, 165 Okl. 1109 only brought real can be within the Okl., (1933); Speake, Matter Estate 743 of of following periods, after the cause of action (1987). 650 accrued, shall have and not afterwards: tion for arising on merated. ...” ... Third. Within two ^[******] injury contract, to the and not rights (2) years: hereinafter of another, ... an enu- ac- 7. No writ could be Coke 10 record." where (known the as a “new (1595). (Emphasis mine.) first writ is brought writ”, served, see infra Spencer’s journey’s and returned note account Case, 8) "but of 6 language supra 4. italicized in note 2. "journey's purpose 8. The account” was to “journey" For the 5. terms of Art. allow a reasonable time for a §§5 46 to court Const., Okl. see notes 19 out a and 20. to sue writ. Matter Estate infra оf of 6; supra English Rogers note v. T.H. Lumber I, English 6. 21 Jac. c. 4. The §16 Co., Limitations (1918); Okl. 68 173 P. 1048 see Statute Cohn, App.Div. also Baker v. 266 41 suits, (1943); judgment "If in the said actions or 767 N.Y.S.2d Jackson v. Prairie Oil given Co., plaintiff, for the and the same & Gas 115 Kan. 222 P. 1115

1281 precise question we must answer is recommencement exacted statute9 litigation whether, stages currently under with those effective dealt other vis-a-vis each parties stood pleading regime, 100 is invocable to ex- Cordozo, posture. adversary in an Justice bring tend the time to a claim when in the City New traced in who Gaines action, earlier, voluntarily dismissed no ser- history York sav of the New York10 upon vice ever issued the defendant. I Act, noted: ings statute to the 1623 question negative. would answer this “important consideration [of statute] legislature no in- There is indication aid, that, invoking judicial a liti is depart adversary pos- from the tended adversary notice to his gant gives timely requirement historically ture built into the purpose to maintain his present aof none, Though I text of could find 11 short, un rights the courts.” before if some textually even there were demon- prototype statute no action could der the proof legislative design strable to aban- the merits ever fail on an issue dehors don, Pleading adoption, at the Code’s actually adversary stage an scheme, pre-1984 recommencement-of-suit motion. set in crowning principle guide which must legislature carried the ad- The Oklahoma today our course should be the one which English into our versary scheme of the act judicial interpretation teaches that when savings statute. When 100 was own legislative act will result in a fun- some Code, part of the Field “com- drafted as infirmity, damental-law another con- proceed- an meant mencement” of struction of the same text would avoid both A process.12 ings service after uncertainty and offense to some constitu- earlier, year had one to recommence principle, duty tional it is this court timely-brought action that had failed on an give the enactment issue the merits.13 Under the dehors which will make the statute free from Pleading deemed Code14 an action now constitutional doubt.16 is filed.15 to commence when Today’s clearly construction of of- longer no marks an ac- Service process. the defendant’s due This is beginning. tion’s fends York, (1924); sixty Hodges Co. New service оf the summons ... within v. Home Ins. (1951). mine.) days. (Emphasis 233 N.C. 63 S.E.2d D. No. 7 See C & C Tile Co. v. Sch. act, English supra note 6. Okl., (1972); Limitations Cty., Tulsa Cotner, Okl., Kile v. Supra note 109 N.E. at 596. held action is “[a]n In C & C Tile the court under this statute [§ deemed commenced 11. Gaines v. York, supra New plaintiff properly endeav- § 100] mine). (emphasis N.E. at 596 defendant, provided procure service on ors to attempt followed service of sum- that such 12. Before the enactment Pleading the 1984 sixty days.” mons on defendant within (12 seq.), O.S.Supp.1984 Code 2001 et §§ (repealed by of 12 Okl.Sess. terms L.1984, 13. Matter Speake, supra note 6 at 164, 32) provided ch. that an action commenced when a defendant is served deemed with summons. The terms of O.S.1981 97 14. seq. 2001 et §§ *9 provided commenced, with- “An action shall be deemed meaning seq., this article 91 et [§§ 100], defendant, includes as to each Okl., 16. Indemnity Dailey, Special Fund v. summons which is served on at the date (the 1); (1954) syllabus court’s ¶ 272 P.2d 395 attempt commence an action him ... An Okl., Court, County Dist. Earl v. Tulsa equivalent shall be deemed to the commence- Foster, Okl., (1980); thereof, Wilson v. arti- ment cle, within the of this (1979); Chicago, Ry. P. R.I. & party faithfully, properly when the and (1911) (the service; Beatty, 34 Okl. 118 P. 367 diligently procure Co. v. endeavors to 2). syllabus attempt court's must be followed the ... ¶ 100 one- readily and calculable. Personal notice of the court allows so because point extinguishes remedy unknown a time run from a bar that one’s year period to whom no constitutionally unnecessary one for the stat- and unknowable if suit. A in the earlier process executing. ever issued ute limitations “Self- self could not process gauge by with person never served execution” is a which the U.S. began that the time bar which Supreme be aware Court measures a time bar’s con- came to be running a claim’s accrual conformity process with to the due stitutional dismissal of which by a ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍lawsuit’s govern key extended The standards that notice.17 only construction one had no notice. “self-executing component of a limitation” 100 free from constitu- that would adversely person’s make § is the affected aware- regard the doubt is that which would tional point period ness of the exact when the (before voluntary dismissal earlier action’s begins triggering point to run. Once the process) plaintiffs unilat- issuance of as a knowable, the limitation runs known of the claim rather than eral withdrawal self-executing in a manner until the full than on as thе action’s failure “otherwise period remedy comes to an end. The the merits.” extinguished comes to without the ne-

cessity anyone might for notice to whom it adversely have affected. II process adversely Due demands that the OF THE EXTENSION TWO- TODAY’S person unambiguously in- affected BY YEAR LIMITATIONS PERIOD triggers formed of the event that the time OF 100’s SAV- INTERPOSITION brought.18 within which suit must be IS INGS PROVISION VIOLATIVE Here, two-year period limitations came DUE PROCESS OF DEFENDANT’S triggered by to be the tortious event. The bring time to the action thus ran from a Ordinary common-law limitations do not readily ascertainable accrual of the claim requirement process the due for no- offend statute-prescribed peri- the end of (a) until adversary trig- tice to because procedure, od. In stark contrast to this gering the claim accrues—is date—when invoking persons triggering event for 100’s bene- or knowable to the affected known (b) voluntary point when the time fit—the claim’s dismissal before (or out”) lapses “runs is both ascertainable issuance of unknown —was reasoning Pope See in this connection the Court's Texaco, In the Court held unconstitutional Short, U.S. 102 S.Ct. provid- in 781, Inc. statute which Oklahoma nonclaim then (1982); 70 L.Ed.2d 738 Tulsa against ed that creditor's claim a decedent’s Professional Pope, Collection Services v. U.S. presented estate is barred if not within two S.Ct. 99 L.Ed.2d 565 publication months of the of notice to creditors. Texaco, against upheld, the Court the Due “self-executing” terminology The Court used the challenge, providing Process that an Indiana statute (1) distinguish a limitation that runs in a self- interests, mineral which had not severed (as Texacо) executing requir- manner years, period lapsed been used for a of 20 ing any person to an affected notice reverted to the surface owner unless the miner- period begin time that cannot to run without appro- al owner filed a statement of claim in the special persons adversely notice to known to be priate county 2-year grace period office. The affected. provided by the statute —in which mineral inter- prevent est owners could lapsing their interests from “designed 18. A statute of limitations is to ensure by filing a claim—was deemed sufficient that a has notice of a claim him to allow owners to familiarize them- statutory period within a of time and an ade- comply selves with the statute and to with its quate opportunity рrepare his case before per- terms. The Court reiterated the rule that potential evidence is lost or becomes stale.” owning property charged sons within state Denton, Okl., Chandler v. knowledge statutory provisions of relevant (1987); C see also & C Tile Co. v. affecting disposition prop- the control of such Cty.,supra 12 at Sch. D. No. 7 Tulsa erty. presumed knowledge, Given this the min- *10 right eral interest owners had no constitutional impending lapse to be advised their mineral interest. “targets it for different de- violates 46 when the unserved well-nigh § unknowable to entire class of sim- treatment less than an this reason It is for § fendant. things.”22 Al- ilarly persons or situated muster as pass constitutional will not appear not though text of does § governing self-executing extension statutory construction its contravene § in mo- it is set statute of limitations infir- today does create a fundamental-law beyond the clearly event that is tion mity. awareness. person’s affected posi- fails to differentiate The court who had occupied by those defendants tion m the earlier action from received notice of who had not. Section 100 that of those OF CONSTRUCTION COURT TODAY’S “self-executing”23 only vis-a-vis the defen- A PRACTICE RE- 100 CREATES ac- actually served in the earlier dants THAT TO UN- SUBJECTS GIME begins to run For them the time bar tion. DIS- EQUAL TREATMENT TWO A point knowable to all. at a known and OF DEFENDANTS TINCT CLASSES dis- notified of the initial action’s defendant THE OFFENDS CONSTI- AND THUS on the merits” is missal “otherwise than MANDATE FOR PROCE- TUTIONAL knowledge equal to that charged with — DURAL UNIFORMITY the time bar extension —of plaintiff may holding today that a By As for the commencement. the action’s action under 100 without bring a new comprise the oth- defendants who unserved defendant notice of having given ever class, 100 is far from self- er distinct dismissal, court the earlier action’s persons are executing. Because the latter a construction gives the statute termi- given no of the first action’s notice prohibi- the constitutional that offends both nation, that the they would not be aware in Art. 5 against “special” laws tion occurred under circum- earlier suit’s failure Const.,19 man- and the Art. 5 59’s Okl. could make 100 available stances that application general date for the uniform obviously defendants These invocation. terms of 46 ex- The relevant disadvantaged by subjection laws.20 their stand “any pressly prohibit regime the enactment 100 as procedural under the same “[rjegu- special law”21 either hаd been served. local or the defendants who short, places judicial pro- the court lating practice ... the construction prevents today upon ... the text ceedings” “[fjor or limitation civil of§ upon two fairly added.) operating (Emphasis A statute statute actions.” 19. The Const., provide: provided For limitation of Regulating form ceedings changing of the tors, or “The where a "Laws of a * * * no added.) The terms of Art. 5 special special law shall be enacted.” Legislature or other ” peace, operation (Emphasis ^[******] ^[******] general law can be made the rules of evidence in this law inquiry general sheriffs, commissioners, tribunals practice authorizing: terms of shall Constitution, throughout civil or criminal added.) nature shall have a not, ...;” Okl. except Art. jurisdiction Cоnst., courts, justices pass as judicial pro- State, applicable, (Emphasis otherwise provide: actions; arbitra- of, local Okl. uni- or For a detailed 23. receive treatment "self-executing” apply ceived v. situated v. Okl. ion. Porter, Reynolds Special to less than persons; n. 30 (1980) (Opala, Okl., laws do Fed. remainder of the class. School Dist. statute Porter, supra explanation those which differs an entire class of Tchrs., Okl., operate see Part II of J., dissenting). singled also Ind. School No. uniformly. They out (1988); from that re Okl., concept 21 at 823. this Reynolds similarly the law Maule opin- Dist. *11 the due standards for notice. To- distinct classes defendants.24 of day’s imposes construction of which § Independent In Dist. Maulé v. School regime procedural an unfair on defendants to chоose No. 925 this court had occasion action, earlier offends unserved construing there under between the statute express 46 and terms Art. Okl. §§ Art. 5 review in a manner consistent with provi- Const.28 The cited fundamental-law way in a interpreting 46 or the act § constitutionally prohib- sions condemn as a disparate have resulted in treatment would “special legislation ited act” that which entire class. The court for less than an gives procedural like treatment to distinct- rejected the alternative to avoid latter ly dissimilarly different classes of situated “[ujnequal application” of the statute.26 persons. Served and unserved defendants here, today I Similarly would construe comprise in the suit single earlier do not a uniformity-of- 100 in accordance with application They may class for governed by Art. procedure mandates of 46 and not be same norms of §§ procedure contravening the uni- Const., and hold that 100 does not Okl. formity clauses of 46 and 59. §§ avail to extend the time bar to bring against defendant unserved a claim I would avoid the constitutional collision in the earlier action.27 today by holding course that confronts us 100 is not invocable voluntarily who dismissed an earlier suit

SUMMARY against an unserved defendant. textually sup- There is no demonstrable that,

port the court’s conclusion Code, Pleading the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍enactment the 1984 legislature intended to make

invocable who were defendants

not served in the earlier action. opinion places

court’s the common-lawcon-

cept limitations on a collision course with McIntosh, Porter, 824; City Reynolds supra 24. See Tulsa v. 141 Okl. 27. See note 21 at (1930) (“limitations Macura, 284 P. on all civil City Tulsa v. 186 Okl. 100 P.2d through and criminal actions should be оut the (1940) (the 3); syllabus court’s Bar ¶ uniform state"); Barrett v. Board Com'rs County, supra rett v. Board Com’rs Tuba County, Tulsa (1939) (the 185 Okl. 446-447; McIntosh, note 24 at Tuba v. ¶3) syllabus ("special court’s laws ... (the 2). syllabus supra note 24 at 875 court's ¶ preference inequality"). create and establish Elkins, through See also Sisson Allen v. Okl., (1990) (Opala, 728-729 Supra note 21. J., concurring judgment); V.C Elam v. Work 26. Maule v. School Dist. No. su State, Okl., Compensation ers' Court Maulé, pra note 21 at 203-204. the court J., (Opala, dissenting). dealt with two classes of teachers —one com prised of members from districts with an aver 28. For the terms of Art. 46 and §§5 35,000 age daily attendance of or more and the supra respectively. see notes other included teachers from the smaller dis suit, Although tricts. O.S.Supp.1982 the statute there in procedural regime required 29. An act with a that reaсhes 509.2, ballot secret out to affect dbtinct class overinclusive choosing bargaining representa election for alone, within the tive 46 strictures. This for teachers in the first class it was regarding procedure my today’s silent to be followed in the flaw I ascribe in dissent to question hand, the other districts. The was whether court construction. On the other when a subject procedure both classes were to the man sweep statute’s embraces not more than but less gap dated by legislative 509.2. The court filled the left class, it b 46§ whole underinclusive question silence and answered this explanation sense. For a detailed of the latter in the affirmative to avoid the statute's ”[u]n- Porter, Reynolds § 46 classification flaw see equal application” would have contra supra note 21. vened Art. 5 Okl. Const.