BS&B SAFETY SYSTEMS v. EDGERTON

OSCN Found Document:BS&B SAFETY SYSTEMS v. EDGERTON Previous Case Top Of Index This Point in Index Citationize Next Case Print Only BS&B SAFETY SYSTEMS v. EDGERTON 2023 OK 89 Case Number: 121230 Decided: 09/19/2023 THE SUPREME COURT OF THE STATE OF OKLAHOMA Cite as: 2023 OK 89, __ P.3d __ BS&B SAFETY SYSTEMS, L.L.C., a foreign limited liability company, Plaintiff/Appellee, v. MATT EDGERTON, Defendant/Appellant. APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY Hon. Tracy Priddy, District Judge ¶ 0 Appeal and the relief requested is recast as an original jurisdiction supervisory proceeding with an application to assume original jurisdiction and a request for a writ of mandamus. Original jurisdiction is assumed and writ is issued. District Court's order deeming appellant's motion to dismiss as denied by operation of law is vacated, and the assigned judge in the District Court proceeding shall conduct a hearing on appellant's motion to dismiss that was filed pursuant to the Oklahoma Citizens Participation Act. APPEAL RECAST TO A SUPERVISORY WRIT PROCEEDING; ORIGINAL JURISDICTION ASSUMED; MANDAMUS ISSUED; AND ORDER OF THE DISTRICT COURT VACATED WITH DIRECTIONS Patricia A. Podolec, Oklahoma City, Oklahoma, for defendant/appellant. Kate N. Dodoo, McAfee & Taft P.C., Oklahoma City, Oklahoma for plaintiff/appellee. Jacob S. Crawford, Harrison M. Kosmider, McAfee & Taft P.C., Tulsa, Oklahoma, for plaintiff/appellee. MEMORANDUM OPINION EDMONDSON, J. ¶ 1 This Cause is hereby recast as an application to assume original jurisdiction and request for extraordinary relief. Federal Deposit Ins. Corp. v. Tidwell, 1991 OK 119, ¶ 11, 820 P.2d 1338 (Court may exercise its discretion to recast a non-appealable order as an original action when issues of first impression are presented). ¶ 2 Original jurisdiction is assumed. Okla. Const. art. 7, § 4. Maree v. Neuwirth, 2016 OK 62, ¶ 1, 374 P.3d 750. A writ of mandamus is issued directing the assigned judge in Case No. CJ-2022-03359, District Court of Tulsa County, to, within 30 days of this order, conduct a hearing on Appellant's motion to dismiss filed pursuant to the Oklahoma Citizens Participation Act (OCPA). ¶ 3 Under the OCPA, a motion to dismiss filed pursuant to its provisions "shall" be set for hearing no later than 60 days after service, and this time period may be extended by the trial court to 90 days upon a showing of good cause, by agreement of the parties, or if docket conditions so require. In the event the district court allows for limited discovery, the date of the hearing may be extended beyond 90 days, but not more than 120 days after service of the motion. 12 O.S. 2021, § 1433. ¶ 4 Under rules of statutory construction the term "may" in a statute denotes permissive or discretionary conduct, while the term "shall" denotes a command or mandate. Independent School Dist. # 52 v. Hofmeister, 2020 OK 56, ¶ 35, 473 P.3d 475. The cardinal rule of statutory construction is to ascertain and give effect to the legislative intent and purpose as expressed by the statutory language. McIntosh v. Watkins, 2019 OK 6, ¶ 4, 441 P.3d 1094. Legislative intent will be ascertained from the whole act in light of its general purpose and objective. American Airlines, Inc. v. State ex rel. Oklahoma Tax Comm'n, 2014 OK 95, ¶ 33, 341 P.3d 56. ¶ 5 The Legislature's intent with respect to the OCPA is clear -- to facilitate prompt resolution of a motion to dismiss by imposing clear, non-discretionary deadlines for the district court to follow. Paycom Payroll, LLC. v. The Honorable Thomas Prince, Case No. 119,654 (Rowe, J., concurring) (unpub. order, Oct. 19, 2021). ¶ 6 The May 4, 2023 order deeming Appellant's motion to dismiss denied by operation of law is hereby vacated. While the OCPA states that a failure to rule on a motion filed pursuant to the OCPA within 30 days of a hearing results in the denial of the motion by operation of law, nothing in the Act states that the failure to set a hearing results in a denial of the motion by operation of law. See 12 O.S. 2021, §§ 1434 and 1437. Anderson v. Wilken, 2016 OK CIV APP 35, ¶ 9, 377 P.3d 149. ¶ 7 Based on the foregoing, Appellee's motion to dismiss the appeal for lack of an appealable order is moot. ¶ 8 ALL JUSTICES CONCUR. Citationizer© Summary of Documents Citing This Document Cite Name Level None Found. Citationizer: Table of Authority Cite Name Level Oklahoma Court of Civil Appeals Cases Cite Name Level 2016 OK CIV APP 35, 377 P.3d 149, ANDERSON v. WILKEN Discussed Oklahoma Supreme Court Cases Cite Name Level 1991 OK 119, 820 P.2d 1338, 62 OBJ 3541, Federal Deposit Ins. Corp. v. Tidwell Discussed 2014 OK 95, 341 P.3d 56, AMERICAN AIRLINES, INC. v. STATE ex rel. OKLAHOMA TAX COMMISSION Discussed 2016 OK 62, 374 P.3d 750, MAREE v. NEUWIRTH Discussed 2019 OK 6, 441 P.3d 1094, MCINTOSH v. WATKINS Discussed 2020 OK 56, 473 P.3d 475, INDEPENDENT SCHOOL DISTRICT # 52 v. HOFMEISTER Discussed Title 12. Civil Procedure Cite Name Level 12 O.S. 1433, Hearing on a Motion to Dismiss - Discovery Cited 12 O.S. 1434, Ruling on a Motion to Dismiss - Standard of Proof Cited oscn EMAIL: webmaster@oscn.net Oklahoma Judicial Center 2100 N Lincoln Blvd. Oklahoma City, OK 73105 courts Supreme Court of Oklahoma Court of Criminal Appeals Court of Civil Appeals District Courts decisions New Decisions Supreme Court of Oklahoma Court of Criminal Appeals Court of Civil Appeals programs The Sovereignty Symposium Alternative Dispute Resolution Early Settlement Mediation Children's Court Improvement Program (CIP) Judicial Nominating Commission Certified Courtroom Interpreters Certified Shorthand Reporters Accessibility ADA Contact Us Careers Accessibility ADA