Boehler v. Shumake , 853 P.2d 240 ( 1993 )

ADAMS, Presiding Judge,

concurring in part and dissenting in part:

Except as discussed in Part II, I agree with the majority’s recitation of the facts and legal proceedings in this case. However, because I would reverse a portion of the trial court’s judgment, I find it necessary to address all the arguments made by the appellees for affirming.

I

Because Boehler relies upon material in her trial court response in arguing controverted facts exist, I begin my analysis by examining the trial court’s presumed failure to consider Boehler’s response because of technical violations of Rule 13.¹ The appellees first raised the issue of non-compliance with Rule 13 in their reply to Boeh-ler’s response to the summary judgment motion. They complained that Boehler had not listed and numbered each specific material fact which she claimed to be in controversy.

Actually, Boehler’s response consisted of a combined statement of facts and brief. The argument portion contained numbered propositions and sub-propositions stated in terms substantially equivalent to the “facts” which Boehler contended were controverted. The discussion contains specific references to the evidentiary material attached to Boehler's response. On this record, I conclude the trial court erred in deciding Boehler did not comply with Rule 13². The trial court should have considered Boehler’s evidentiary material, and summary judgment should not have been granted on this ground.

II

Although the trial court did not base its decision on the appellees’ argument that no negligence occurred, they argue it affords an alternative basis for sustaining the trial court. Basically, they argue summary judgment was appropriate because the facts show Shumake was not negligent and Boehler furnished no expert testimony that Shumake’s representation was below the standard of care. However, Boehler had no duty to respond with such evidence until the appellees first established, through evi-dentiary materials, that no negligence occurred. Spirgis v. Circle K Stores, Inc., 743 P.2d 682 (Okla.App.1987) (Approved for Publication by the Supreme Court).

The appellees’ evidentiary materials, even if unrebutted, do not establish the absence of negligence when viewed in the light most favorable to Boehler, as required by Hargrave v. Canadian Valley Elec. Coop., 792 P.2d 50 (Okla.1990). Although Shumake’s affidavit states his representation was not beneath the appropriate standard of care, that statement must be considered in the light of his version of the facts. According to his statements, he either did not discuss the discharge issue at the time of the decree or advised Boehler that discharge was possible. Boehler swears Shumake assured her the second mortgage obligation could not be discharged.

The appellees also claim Boehler caused her own damage by disregarding Shu-make’s advice in agreeing to the second mortgage. This argument is similarly unavailable as a basis for summary judgment. Although Shumake states he advised Boeh-ler against that agreement, in another statement, included in Boehler’s evidentia-ry materials, Shumake claims he was not consulted until after the agreement. Further, according to Boehler’s affidavit, when she asked for Shumake’s advice, “[h]e simply stated that if it was him, he wouldn’t do it but that he understood that I still loved my husband and was trying to work things out.”

Summary adjudication is appropriate only when all issues of material fact are uncontroverted, and those facts, including all reasonable inferences therefrom, are consistent only with judgment for one party. Flanders v. Crane Co., 693 P.2d 602 (Okla.1984). Applying that test to the evi-dentiary materials in this case, I must conclude summary adjudication was also inappropriate on any of the grounds raised by the appellees but not addressed by the trial court.

Ill

The majority adopts the appellees’ argument that the two-year statute of limitation ran prior to Boehler’s suit because she knew “as early as November, 1986 that the second mortgage could be discharged in bankruptcy”, citing Funnell v. Jones, 737 P.2d 105 (Okla.1985), cert. denied, 484 U.S. 853, 108 S.Ct. 158, 98 L.Ed.2d 113 (1987). However the majority does not identify any damage which Shumake sustained as a re-suit of that negligence or when that damage occurred.

According to the evidentiary materials provided to the trial court, Shumake’s alleged negligence concerning dischargeability caused Boehler no damage until her ex-husband’s obligation to pay the second mortgage was discharged in bankruptcy on November 23, 1988, less than two years prior to the filing of her petition and amended petition.

As noted in Funnell, the limitation period applicable to actions for legal negligence is the two-year period provided under 12 O.S.1991 § 95. According to that section, an action must be commenced within the relevant period “after the cause of action shall have accrued”, or it is barred. The statute of limitation begins to run when the cause of action accrues. A cause of action accrues when a litigant could first maintain an action to successful conclusion. Sherwood Forest No. 2 Corp. v. City of Norman, 632 P.2d 368 (Okla.1980); National Bank of Claremore v. Jeffries, 126 Okl. 283, 259 P. 260 (1927).

In order to lecover for negligence Boeh-ler, is required to prove: (1) the existence of a duty by Shumake to protect her from injury; (2) a violation of that duty; and (3) injury as a proximate result of that violation of duty. Sloan v. Owen, 579 P.2d 812 (Okla.1978). Boehler's cause of action did not accrue until she suffered injury as result of Shumake’s alleged negligence, and the limitation period runs from the date she first suffered damage.

The majority holds that Funnell requires the limitation period to run “from the date the negligent act occurred or from the date the plaintiff should have known of the act complained of.” 737 P.2d at 107, without regard to when the injury was sustained. However, nothing in Funnell indicates the plaintiff’s damage occurred subsequent to the negligence or its discovery, and the Oklahoma Supreme Court indicated no intent to abrogate the principles recognized in Sherwood and Sloan.

After the trial court decision in this case, the Oklahoma Supreme Court decided MBA Commercial Construction, Inc. v. Roy J. Hannaford Company, Inc., 818 P.2d 469 (Okla.1991) and held the statute of limitation did not begin to run on an architectural negligence claim until the plaintiff suffered damage even though the plaintiff was aware of the architects’ alleged negligence more than two years prior to suit. The Court specifically noted that § 95 was not a statute of repose. In so holding, the Court announced no earth-shattering, new rule of law, but simply applied time-honored principles to determine when a cause of action accrued and the § 95 limitation period began to run.

If § 95 is held to bar Boehler’s claim before it even accrues, then it is a statute of repose and not of limitation. See Reynolds v. Porter, 760 P.2d 816 (Okla.1988). Such an interpretation ignores the plain language of the Legislature. Unlike the majority, I do not believe the Oklahoma Supreme Court intended in Funnell to invade the Legislature’s province and enact a statute of repose for doctors and lawyers.

To the extent Boehler’s negligence claim is based upon Shumake’s alleged failure to adequately advise her concerning dis-chargeability or draft the decree to prevent bankruptcy discharge of her ex-husband’s obligation, she suffered no damage until the feared eventuality occurred. So long as the obligation was not discharged, Shu-make’s alleged negligence had no actual impact. Because Boehler’s damages for negligence in connection with the discharge could not have accrued prior to November 23, 1988, her claim in this regard was not barred by the statute of limitation.

However, as to Boehler’s claim concerning Shumake’s alleged advice that she was not entitled to support alimony, any damage accrued upon the entry of the divorce decree in 1981. Because Boehler was aware of the act, and both the act and any resulting damage occurred simultaneously, the limitation period began to run in 1981. Any claim on this basis is time-barred. Therefore, I agree the trial court did not err in refusing Boehler’s request to amend her petition to add this additional allegation.

IV

I believe the trial did not err in refusing to allow Boehler to amend her petition to claim additional negligence and damages on which the statute of limitation had run. I would affirm the trial court’s order to that effect, and therefore concur in the result reached by the majority as to that time-barred claim.

However, I also believe the trial court erred in apparently disregarding the evi-dentiary materials included in Boehler’s response to the summary judgment motion. When that evidence is considered, questions of fact exist concerning whether Shu-make was negligent in advising Boehler concerning her ex-husband’s ability to discharge in bankruptcy a divorce decree-imposed obligation to hold her harmless on a second mortgage.

I also conclude Boehler’s well-pled claim is not time-barred because the statute of limitation on this claim of negligence did not begin to run until Boehler first sustained damage when the obligation was discharged in bankruptcy less than two years prior to Boehler’s petition and amended petition. Therefore, I must respectfully dissent to that portion of the majority opinion which concludes all of Boehler’s claims were time-barred.

1 . I say “presumed" because the trial court did not say it "disregarded" the response, but simply concluded the motion for summary judgment "should be granted for the reason that Plaintiff has failed to comply with the provisions and requirement [sic] of Rule 13.” Non-compliance with Rule 13 does not per se support a grant of summary judgment, see Spirgis v. Circle K Stores, Inc., 743 P.2d 682 (Okla.App.1987) (Approved for Publication by the Supreme Court). Therefore I assume the trial court simply disregarded the evidentiary material in Boehler’s response as a sanction for non-compliance with the rule. See Hadnot v. Shaw, 826 P.2d 978 (Okla.1992).

2 . Even if Boehler was in technical violation, the purpose behind the requirement, advising the court of the specific facts in controversy and furnishing copies of the evidentiary materials supporting that argument, was fulfilled. In addition, .sanctioning Boehler for such technical noncompliance under these circumstances was particularly inappropriate because the appellees’ motion also did not fully comply with Rule 13. Although their motion referred to page numbers of depositions cited, the appellees did not identify the line or attach copies of the relevant portions of the depositions, both of which are required by Rule 13. The trial court imposed no sanctions on the appellees.