Opinion
No. 83,279
Decided June 24, 1997
ON CERTIORARI TO THE COURT OF APPEALS, DIVISION II APPEAL FROM THE DISTRICT COURT OF GREER COUNTY, OKLAHOMA HONORABLE CHARLES L. GOODWIN, TRIAL JUDGE.
¶ 0 In an action by a single plaintiff to recover for bodily injuries sustained in an automobile collision, two petitions were filed in the same case, the first of which — filed over three years before the second — had been stricken, and the second of which was dismissed with prejudice by the District Court, Greer County, Charles L. Goodwin, Judge. On appeal from the order dismissing the second petition the Court of Appeals affirmed, and the plaintiff sought certiorari.
CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; TRIAL COURT'S ORDER OF DISMISSAL REVERSED.
J. Phillip Olson, Altus, Oklahoma For Appellant.
Bruce A. Robertson, Wilson, Cain McAtee, Oklahoma City, Oklahoma For Appellee.
¶ 1 On April 25, 1990 the plaintiff, Treva L. Johnson, timely commenced an action against the defendant, Maggie E. Goodman, seeking to recover for alleged bodily injuries from an automobile collision that occurred on April 26, 1988. The petition was signed by the plaintiff and her lawyer, who was neither licensed to practice law in Oklahoma nor admitted pro hac vice. The lawyer continued to represent the plaintiff until, during a status conference in August 1990, the trial judge apparently discovered the problem regarding the lawyer's professional status.
¶ 2 Concluding that the attorney's signature on the plaintiff's pleadings and motions constituted a violation of 12 O.S.Supp. 1987 § 2011[ 12-2011], the trial judge ordered them stricken. The issue of attorney's fees and costs incurred by the defendant in having to attend the status conference was reserved for future determination upon defendant's application.
The terms of 12 O.S.Supp. 1987 § 2011[ 12-2011] provided:
Every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address and Oklahoma Bar Association identification number shall be stated. * * * If a pleading, motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee. (Emphasis added.)
Section § 2011 has since been amended, but the court still has the authority to strike an unsigned pleading and to impose sanctions for violation of the statute.
¶ 3 Following an August 30, 1990, hearing the trial court imposed monetary sanctions against the lawyer alone. He appealed in case No. 76,383, and sought leave to appear as attorney of record on behalf of both the plaintiff and himself. This Court granted his motion in part, permitting him to represent only himself in his appeal from the sanctions order against him. The Court of Appeals affirmed the order, and this Court denied his petition for certiorari on September 15, 1992.
¶ 4 Exactly one year later the plaintiff, represented by other counsel, filed another petition in the same case. The defendant moved to dismiss based on the statute of limitations. She argued that the propriety of the order striking the first petition was not the subject of any appeal and that the order therefore became final. This argument was premised on the notion that the order striking the pleading operated as a dismissal or failure of the action "otherwise than upon the merits" within the meaning of 12 O.S. 1991 § 100[ 12-100].
Section 100 provides:
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. (Emphasis added.)
¶ 5 The defendant thus maintained that the plaintiff's second petition is time-barred because (1) the plaintiff waited more than one year to attempt to initiate a new action, and (2) even if she had made a timely attempt to do so, she would have failed to commence a new action because her second petition was filed in the same "deemed-dismissed" case. In support of the latter argument the defendant cited Wiley Elec., Inc. v. Brantley, 1988 OK 80, 760 P.2d 182, which holds that the filing of an amended petition in a previously dismissed case is insufficient to avail a party of the savings provisions of § 100.
In Wiley a plaintiff had sued three defendants and obtained summary judgment against one of them. The claims against the remaining defendants were dismissed without prejudice. Within the one-year period following the dismissals, the plaintiff brought a second or amended petition, which was filed in the original case. Because the summary judgment and the dismissals without prejudice effected an end to the trial court's jurisdiction in the case, there was no petition pending for the plaintiff to amend. Section 100 was therefore not available to save the claim from the limitations bar.
¶ 6 The trial court accepted the defendant's viewpoint and dismissed the second petition with prejudice. The Court of Appeals affirmed, and this Court granted the plaintiff's petition for certiorari. The dispositive issue is whether the order striking the first petition is the functional equivalent of a dismissal and thus caused plaintiff's failure in the action "otherwise than upon the merits" within the meaning of § 100. We answer in the negative and hold that the order should not have been treated as a dismissal and that the case has remained pending since the first petition was stricken.
¶ 7 The striking of a pleading does not mark the end of an action, as does a dismissal, though it renders the pleading inefficacious. This conclusion is consistent with the manner in which rulings on motions to strike have generally been treated. Such motions are authorized (see 12 O.S. 1991 § 2012[ 12-2012](D)), but the grounds for a motion to strike are now statutorily limited. Before the enactment of the Pleading Code in 1984 motions to strike were authorized by 12 O.S. 1981 §§ 297[ 12-297] [12-297] and 1115 [12-1115, and their purposes were to make any pleading definite and to excise redundant or irrelevant matters inserted in any pleading.
The terms of § 2012(D) provide:
D. MOTION TO STRIKE. Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by this Act, upon motion made by a party within twenty (20) days after the service of a pleading upon him or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense . If, on a motion to strike an insufficient defense, matters outside the pleadings are presented to and excluded by the court, the motion shall be treated as one for partial summary judgment and all parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by the rules for summary judgment. (Emphasis added.)
Section 297 provided:
If redundant or irrelevant matter be inserted in any pleading, it may be stricken out, on motion of the party prejudiced thereby; and when the allegations of a pleading are so indefinite and uncertain that the precise nature of the charge or defense is not apparent, the court may require the pleading to be made definite and certain by amendment.
Section 1115 provided:
Motions to strike pleadings and other papers from the files may be made with or without notice, as the court or judge may direct.
As a general rule, the office of a motion to strike . . . [was] not to test the sufficiency of a pleading; the motion relate[d] collaterally or preliminarily to the issue and . . . [was] not directed against the cause of action or defenses as a whole to test its sufficiency; the motion . . . [was] not a substitute for a general demurrer and . . . [was] not the proper pleading by which to raise the objections of res judicata, statute of limitations, or laches.
Bronson v. Reed, Okla., 30 P.2d 459 (1934) (the Court's syllabus). See also Bingham v. Williams, Okla. 264 P.2d 751, 755 (1953), where the Court noted:
* * * It is elementary that any defendant has a right to have redundant or immaterial matter stricken from a petition, to have an indefinite petition made more definite and certain, and to move for a dismissal if the facts and pleadings warrant such motion. (Emphasis added.)
Orders granting motions to strike, then, ordinarily did not (and do not) bring an end to the action. Furthermore, such orders are not appealable. DLB Energy Corp. v. Oklahoma Corp. Com'n, 1991 OK 5, 805 P.2d 657, 660-661; Riise v. Riise, Okla., 332 P.2d 963, 965 (1958).
¶ 8 Today's pronouncement is also consistent with federal procedural law in which a motion to strike is not the appropriate vehicle for a claim's dismissal. Day v. Moscow, 955 F.2d 807, 811 (2nd Cir. 1992), citing 5A Wright Miller, Federal Prac. Proc. § 1380 at 644 (1990) (A motion to strike "is neither an authorized nor a proper way to procure the dismissal of all or a part of a complaint."). See also Click v. Abilene National Bank, 822 F.2d 544, 545 (5th Cir. 1987), where the U.S. Court of Appeals dismissed an appeal from an order imposing sanctions, concluding that "[i]n striking the appellant's amended complaint, the district court did not dismiss the action in its entirety. The action remains pending before the district court."
State courts as well have reached similar conclusions. See, e.g., Bejda v. SGL Industries, Inc., 412 N.E.2d 464, 466-467 (Ill. 1980), where the court noted that "[a] dismissal of a complaint . . . cannot be equated with a striking of that pleading, since there exists `a marked difference between an order striking a case from the docket, which is not final . . . and an order dismissing the suit * * *.' This distinction is a substantial one and a distinction that has long been recognized in Illinois." (Citations omitted.) In Daugherty v. Bruce Realty Dev., 840 S.W.2d 271, 272 (Mo.App. 1992), the trial court imposed sanctions by striking the plaintiff's pleadings. The plaintiff's appeal was dismissed because the record contained no judgment or order of dismissal and because the appellate court viewed the order imposing sanctions "as an attempt by the [trial] court to compel the parties to responsibly proceed with discovery and not as the entry of a judgment."
¶ 9 In conclusion, the order striking all of the pleadings and motions filed on this plaintiff's behalf did not constitute a dismissal or failure in the action "otherwise than upon the merits" within the meaning of § 100. The claim presented in her second petition is not barred by limitations.
¶ 10 THE OPINION BY THE COURT OF APPEALS IS THEREFORE VACATED, THE TRIAL COURT'S ORDER DISMISSING THE SECOND PETITION WITH PREJUDICE IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS
KAUGER, C.J., HODGES, LAVENDER, SIMMS, and HARGRAVE, JJ. CONCUR
OPALA, J., CONCURS BY SEPARATE OPINION., WITH WHOM SUMMERS, V.C.J,, and WILSON, J., JOIN.
WATT, J., NOT VOTING.