By Sally Garrison, Esq.

The Mortgage Law Firm *

USFN Member (AZ, CA, HI, OK, OR, WA)

A recent Supreme Court of the State of Oklahoma ruling in McBee v. Shanahan Home Design, 2021 OK 60 may be indicative of the potential impacts of COVID-19 administrative orders and the resulting delays in timelines.

The Supreme Court of the State of Oklahoma issued three successive emergency administrative orders impacting the availability of court services in response to the COVID-19 pandemic. These orders limited district court procedures and suspended certain deadlines in judicial matters.

The first emergency administrative order stated, “Subject to constitutional limitations, all deadlines and procedures whether prescribed by statute, rule or order in any civil, juvenile or criminal case shall be suspended by 30 days from the date of this order. This suspension also applies to appellate rules and procedures for the Supreme Court, the Court of Criminal Appeals, and the Court of Civil Appeals.” First Emergency Joint Order Regarding the COVID-19 State of Disaster, 2020 OK 25, ¶ 3, 462 P.3d 704, 704-05.

The second emergency administrative order continued the suspension described in the first emergency administrative order through May 15, 2020. Second Emergency Joint Order Regarding the Covid-19 State of Disaster, 2020 OK 24, ¶3, 462 P.3d 262, 262. It further directed that “[a]ll courthouses shall be closed to the public with exceptions for emergencies as permitted by local order,” and that “[c]ourt clerks and judges should be using email, fax, and drop boxes for acceptance of written materials.” Second Emergency Joint Order Regarding the Covid-19 State of Disaster, 2020 OK 24, ¶¶ 6-7, 462 P.3d 262, 262.

            The third emergency administrative order continued the suspension further, and clarified as follows:

5. Paragraphs 4 and 5 of the Second Emergency Joint Order remain in effect to May 15, 2020. In all cases, the period from March 16, 2020 to May 15, 2020, during which all rules and procedures, and deadlines, whether prescribed by statute, rule or order in any civil, juvenile or criminal case were suspended, will be treated as a tolling period. May 16th shall be the first day counted in determining the remaining time to act. The entire time permitted by statute, rule or procedure is not renewed.

6. Beginning on May 16, 2020, all rules and procedures, and all deadlines whether prescribed by statute, rule or order in any civil, juvenile or criminal case, shall be enforced, including all appellate rules and procedures for the Supreme Court, the Court of Criminal Appeals, and the Court of Civil Appeals.

7. For all cases pending before March 16, 2020, the deadlines are extended for only the amount of days remaining to complete the action. For example, if the rule required the filing of an appellate brief within 20 days, and as of March 16, ten (10) days remained to file the brief, then the party has 10 days with May 16, 2020 being the first day.

Third Emergency Joint Order Regarding the Covid-19 State of Disaster, 2020 OK 23, ¶¶ 5-7, 462 P.3d 703, 703.

            On November 19, 2019, Vickie McBee filed suit against Shanahan Home Design, LLC, and Biggs Backhoe, Inc., related to the design and construction of her residence. McBee’s counsel did not issue summons prior to the issuance of the Oklahoma Supreme Court’s emergency administrative orders. On May 18, 2020, after the expiration of those orders, McBee’s counsel caused summons to be issued. Biggs Backhoe was served on July 8, 2020. Shanahan Home Design was served on July 16, 2020. McBee v. Shanahan Home Design. LLC, et al., 2021 OK 60, ¶¶ 4-5.

            In Oklahoma, the plaintiff has 180 days after filing its petition to serve the defendant. Okla. Stat. tit. 12, §2004(I). Both defendants argued that service was untimely and that the action should be dismissed. In response, McBee argued that the emergency administrative orders suspended the time for service even though summons had not been issued before the emergency administrative orders were effective. The trial court agreed with the defendants and concluded that the suspension did not apply because the summons had not been issued before the orders took effect. Id., at ¶¶ 6-7.

            The Oklahoma Supreme Court retained the matter on appeal, reversing and remanding the trial court’s decision. The Court found that “general administrative authority over all courts in this State, including the temporary assignment of any judge to a court other than that for which he was selected, is hereby vested in the Supreme Court and shall be exercised by the Chief Justice in accordance with its rules.” Id. at ¶12 (citing Okla. Const. art. VII, § 6). The McBee Court went on to say, “[u]nder the State Constitution and Rule 2, it is unquestionable that the Supreme Court, acting through the Chief Justice, had authority to take proper measures and issue such orders as were deemed necessary for the safe operation of state courthouses and its employees.” Id. at ¶13. The McBee Court noted, “[t]he tolling of time limitations was just one in a litany of safety measures implemented by the emergency orders to better protect courthouse employees and the public from further spread of Covid-19.” Id. at ¶15.

            The Court defined “tolling” as “the temporary suspension of statutory time bar for bringing a suit because of either some ‘disability’ on the part of the plaintiff which prevents that person from commencing the action or some activity on the part of the defendant forestalling prosecution of the claim against the defendant." Id. at ¶18 (quoting Thompson v. Anchor Glass Container Corp., 2003 OK 39, ¶ 9 n. 13, 73 P.3d 836, 838). The McBee Court further reasoned, “[i]n the present case, there are a number of factors that constitute disability on the part of the plaintiff, including, but not limited to, the fact that society was in the midst of a global pandemic. Most courthouses were closed to the public because of Covid-19. Additionally, the third SCAD order expressly stated that the statute of limitations in any civil case would be extended. Consequently, McBee's potential reliance on this Court's orders clearly stating that the statute of limitations on all civil cases pending would toll further establishes a disability for purposes of tolling.” Id. at ¶18.

The Court provided the following application for guidance: “For all cases pending before March 16, 2020, the deadlines are extended for only the amount of days remaining to complete the action. For example, if the rule required the filing of an appellate brief within 20 days, and as of March 16, ten (10) days remained to file the brief, then the party has 10 days with May 16, 2020, being the first day.”  Id. at ¶18. As applied to the case at bar, from the date the petition was filed, to the date the first order took effect, 117 days elapsed. Consequently, McBee had 63 days remaining, beginning on May 16, 2020, to complete service. Therefore, McBee completed service on both defendants in the time allowed because of the available tolling.

As our industry returns to its usual processes, it appears that the interruptions caused by the pandemic and the emergency executive orders of the Oklahoma Supreme Court will be applied to all operative timelines in existence. While this particular opportunity for timeline enlargement is likely already behind us, it is important to consider its effect as applied to issues that have a long life, like jurisdiction and service. Further, the Court’s finding in McBee may be an indication of how it will treat delays caused by moratoria impacting various timelines for the industry at large.

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USFN Report - Winter 2022