Upon a client’s receipt of a summons and petition in Oklahoma state court, it is common practice for civil litigators to instinctively file a template special entry of appearance and reservation of time to extend their client’s responsive pleading deadline by an additional 20 days. Reserving time to otherwise file a responsive pleading waives certain affirmative defenses, including those relating to jurisdiction, venue, service of process, capacity of a party to be sued and failure to state a claim.[1] Since 1991, legal precedent in Oklahoma has held that filing a reservation of time preserves the listed affirmative defenses so long as it is accompanied by an entry of appearance that is qualified (or special) but not general.[2] The Oklahoma Supreme Court in McBee v. Shanahan Home Design[3] cast doubt on this longstanding practice in a footnoted obiter dictum. The court’s dictum suggested that a statutory amendment by the Legislature in 2002 eliminated this popular practice. This article explores the history and current status of the special entry of appearance and reservation of time statute and the (purportedly) resulting waiver of affirmative defenses resulting therefrom after McBee.

THE HISTORY OF OKLA. STAT. TIT. 12 §2012(A)

It is a well-established legal principle that a general entry of appearance by a party to an action results in a waiver of the right to raise jurisdictional defects, such as improper service of process or venue.[4] When the Oklahoma Pleading Code was first enacted, the drafters included language in §2012(A) consistent with the waiver doctrine:

Within 20 days after the service of the summons and petition upon him, a defendant may file an appearance which shall extend the time to respond 20 days from the last date for answering. The filing of such an appearance waives defenses of paragraphs 2, 3, 4, 5, 6 and 9 of subsection B of this section.[5]

The Oklahoma Supreme Court first addressed the waiver issue in Young v. Walton. In Young, the plaintiff argued that the defendants’ filings of “special appearances” in response to the petition waived the defenses of improper venue and failure to state a claim under §2012(A). The court found the timely filing of “an appearance” extended the time for the defendants to respond and operated as a waiver of certain defenses, but the waiver of the §2012(B) defenses “applie[d] only to a defendant’s general or perhaps to an unspecified appearance, not to one that is explicitly qualified.”[6] Young teaches that the qualification of the appearance is crucial. By way of example, in Turpen v. Hamby,[7] the defendants filed unqualified “entries of appearance,” reserved additional time to respond under §2012(A) and then filed a motion to dismiss for failing to state a claim under §2012(B)(6). The trial court granted the motion to dismiss. The Court of Civil Appeals reversed and found that the unqualified entries of appearance waived the defendants’ right to move to dismiss for failure to state a claim.

Following the Young decision, the Oklahoma Legislature adopted Okla. Stat. tit. 12 §2005.2 in 2002, a statute that mandated the filing of an entry of appearance by counsel or a party pro se in “any civil proceeding in the district courts.” This statute also stated, “Filing an entry of appearance as required by this section [did] not waive any defenses enumerated in subsection B of Section 2012 of Title 12 of the Oklahoma Statutes.” But §2005.2 conflicted with §2012(A) because 1) the mandatory entry of appearance under §2005.2 did not result in a waiver of §2012(B) defenses, and 2) the filing of “an appearance” under §2012(A) waived certain §2012(B) defenses (as shown in Young). The Legislature sought to resolve this conflict by changing the statutory language in §2012(A) from the filing of “an appearance” to a “reservation of time.”[8] The language, current as of 2004, now reads, “A defendant may file a reservation of time which shall extend the time to respond 20 days from the last date for answering. The filing of such a reservation of time waives defenses of paragraphs 2, 3, 4, 5, 6 and 9 of subsection B of this section.”[9]

Despite the amendments to this statutory language, published cases in Oklahoma have continued to hold – without any analysis of this issue and as recently as 2020[10] – that a qualified/special entry of appearance and reservation of time did not waive §2012(B) defenses pursuant to Young. In the past, practitioners have used this practice as an opportunity to effectively extend their client’s responsive pleading deadline from 20 days to 40 days without a waiver of affirmative defenses.

THE OKLAHOMA SUPREME COURT WEIGHS IN: THE MCBEE FOOTNOTE

In McBee v. Shanahan Home Design, the plaintiff filed lawsuits against multiple parties pertaining to the design and construction of her residence.[11] Summonses were issued and served on the defendants. The defendants each filed special appearances, reserved additional time to answer the plaintiff’s petition and then moved to dismiss based on alleged defects in service of process in August 2020. The plaintiff did not assert a §2012(A) waiver argument, but the Oklahoma Supreme Court still took the opportunity to address the §2012(A) waiver issue as obiter dictum in a footnote of the opinion.

In footnote 12 of McBee, the court began with the history of §2012(A). The court noted that when Young was decided in 1991, §2012(A) provided that a defendant could file “an appearance” together with a reservation of additional time because of the distinction between a “general appearance” (that resulted in the waiver of certain affirmative defenses) and a “special appearance” (that did not waive defenses).[12] The court also acknowledged that the Legislature amended §2012(A) in 2002 by replacing “appearance” with “a reservation of time,” as noted above.[13] For these reasons, the court found that “the distinction between a special or general appearance would now appear inconsequential, and ostensibly, any reservation of time waives the defenses of paragraphs 2, 3, 4, 5, 6, and 9 of subsection B of [§2012].”[14]

PRECEDENTIAL VALUE OF THE MCBEE FOOTNOTE AND FUTURE CONSIDERATIONS

The plaintiff in McBee did not raise the §2012(A) waiver issue, and for this reason, the court did not consider the issue in the holding. Thus, the discussion on waiver based on the reservation of time in McBee was dictum and, while persuasive, is not binding.[15] Dicta can have a persuasive force, and “even dicta, once followed in subsequent opinions, can develop strong precedential value.”[16] The court’s pronouncement in footnote 12 of McBee, while dictum, provided an unambiguous and thorough historical and statutory interpretation of §2012(A), which suggests the common practice of filing special entries of appearance and reservations of time by litigants in Oklahoma may constitute a waiver of certain affirmative defenses, including failure to state a claim.

Rather than prescribing to the automatic extended 40-day answer date, practitioners should now carefully examine the legal aspects of the petition to determine if §2012(B)(2)-(6) or (9) may give rise to a motion to dismiss before filing any reservations of time. On the other hand, practitioners receiving a special entry of appearance and reservation of time asserting a non-waiver of the §2012(B) may consider utilizing the McBee footnote to move to strike the entry or, in the alternative, to deem the entry a general appearance. And a non-movant that faces a motion to dismiss filed after a defendant has claimed additional time can also assert waiver of that defense in its response brief.

CONCLUSION

Attorneys practicing with an abundance of caution may not be willing to risk their clients’ waiver of in personam jurisdiction or other affirmative defenses based on the dictum in McBee. Whether to satisfy a Rule 2011 investigation or otherwise, a safe alternative to securing additional time to answer or otherwise file responsive pleadings is to request additional time from the court and expressly request the order granting to not constitute a general entry of appearance or a waiver of §2012 defenses. In contrast to the reservation of time, this practice, which may be with or without a motion,[17] requires court approval (and, in some local rules, a statement on whether opposing counsel consents to the requested relief). This action would 1) likely not be considered a demand for affirmative relief, thereby constituting a general appearance and waiver of jurisdictional defenses[18] and 2) per ruling[19] by the Oklahoma Supreme Court, may be done in such a way so as to not waive certain affirmative defenses.

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ABOUT THE AUTHOR
Spencer C. Pittman is a shareholder with Winters & King Inc. in Tulsa. His primary practice focuses on business litigation and transactions. He completed his undergraduate from OU in 2010 and obtained his law degree from the TU College of Law in 2013.

 

 

 

 

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ENDNOTES

[1] Okla. Stat. tit. 12 §2012(A)(1)(b).

[2] 1991 OK 20, 807 P.2d 248 (Young).

[3] 2021 OK 60 (Nov. 16, 2021) (McBee).

[4] Chronister v. Payne, 1977 OK CIV APP 34, 571 P.2d 869, 870.

[5] Okla. Stat. tit. 12 (1984) §2012(A)(1)(b) (Emphasis added).

[6] Young, at ¶4.

[7] 2004 OK CIV APP 88, ¶4, 99 P.3d 1203, 1204.

[8] The Oklahoma Comments to §2012 in 2002 provided as follows: “The proposed amendments to Okla. Stat. tit. 12, § 2012(A) (1991) are tied to the proposed adoption of Okla. Stat. tit. 12, § 2005.2, which would require the filing of an entry of appearance by all counsel and unrepresented parties as the first document in the case. What was previously the entry of appearance in Okla. Stat. tit. 12, § 2012(A) (1991) is being renamed a ‘reservation of time’ in order to differentiate it from the new entry of appearance in Okla. Stat. tit. 12, § 2005.2, but no changes are made in the effect of filing it. In contrast to the previous entry of appearance in this section, the entry of appearance in Okla. Stat. tit. 12, § 2005.2 is mandatory and does not waive any defenses in Okla. Stat. tit. 12, § 2012(B) (1991).”

[9] Okla. Stat. tit. 12 §2012(A)(1)(b) (emphasis added).

[10] Smith v. Lopp, 2020 OK CIV APP 24, 466 P.3d 642, fn. 2 (relying upon Young, Court of Civil Appeals rejected the plaintiff’s argument that the defendants’ reservation of time waived the filing of a motion to dismiss for failure to state a claim).

[11] See McBee v. Forth et al., (Oklahoma County Case No. Oklahoma County CJ-2017-4515, filed Aug. 9, 2017); McBee, Canadian County Case No. CJ-2019-711, was refiled Nov. 19, 2019, pursuant to Okla. Stat. tit. 12 §100.

[12] McBee, at fn. 12 (emphasis in original) (internal quotations removed).

[13] Id.

[14] Id.

[15] Am. Trailers, Inc. v. Walker, 1974 OK 89, 526 P.2d 1150, 1154 (“Statements in a decision neither necessary to support the conclusion reached nor applicable to the situation are dictum, and not in any way controlling”).

[16] Howard v. Webb, 1977 OK 68, 570 P.2d 42, 45.

[17] Okla. Stat. tit. 12 §2006 (B)(1).

[18] See, e.g., Gray v. Gray, 1969 OK 125, 459 P.2d 181, 185.

[19] Powers v. Dist. Ct. of Tulsa Cty., 2009 OK 91, ¶4, 227 P.3d 1060, 1066, as corrected (Dec. 29, 2009).