| Opinion: | Dopp v. Kirkendall, 2021 OK 52 |
| Subject matter: | Savings Statute; Inmates on Frivolous Filing Registry |
| Date Decided: | October 19, 2021 |
| Trial Court: | District Court of Rogers County; Judge Condren |
| Route to this Court: | Dismissal by district court; assigned to Court of Civil Appeals Division II (twice); Inmate’s Petition for Certiorari granted. |
| Facts: | The Appellant is an inmate and his name appears on the Oklahoma Registry of Frivolous or Malicious Appeals three or more times. The trial court dismissed without prejudice his first case because he had not prepaid the required filing fees pursuant to 57 O.S. 2011, § 566.2. The Appellant filed a motion to reconsider within ten days of that order, which the trial court denied. He appealed those orders to the Supreme Court and it dismissed his appeal for failure to pay the required appellate cost deposit pursuant to 57 O.S. 2011, § 566.2 after the Court ordered him to pay it. Appellant refiled his petition. The trial court dismissed the petition as being untimely, finding that he did not file it within one year of the date of the order dismissing his first case. The trial court determined that his motion to reconsider was void ab initio pursuant to § 566.2. The Oklahoma Court of Civil Appeals affirmed, finding that only a validly filed appeal would extend the time to refile a petition pursuant to § 100 and the Appellant’s first appeal was not valid. The Court granted the inmate’s first Petition for Certiorari and ordered the Court of Civil Appeals to reconsider based on Cole, 2019 OK 39 and Grider, 1993 OK 13. The Court of Civil Appeals again affirmed the trial court’s decision. The Court then granted the inmate’s second Petition for Certiorari. |
| Standard of Review: | De novo. |
| Analysis: | Inmate filed his Motion to Reconsider the trial court’s order dismissing his case within ten days of the date of the order, which tolled his time to appeal. Upon denial of the motion to reconsider, his appeal was then timely filed and he paid the filing fee. The savings statute did not begin to run until his appeal was final. |
| Outcome: | Court of Civil Appeals’ Opinion Vacated; Orders of the Trial Court Reversed and Remanded for Further Proceedings |
| Vote: | Combs, J. (author); Darby, C.J., Kauger, Edmondson, Gurich, Rowe, and Kuehn, JJ., concur. Kane, V.C.J., with whom Winchester J., joins dissenting: “I believe that the Appellant’s filings did not toll the one-year savings statute because they were void ab initio. |
| Other: | Inmate’s original case proceeded for four years before anyone ever raised the issue of him not paying the filing fee or presenting a valid pauper’s affidavit. |
