Jacks v. Vanderbilt Mortgage and Finance Inc
Filing
21
ORDER granting 13 defendant Vanderbilt Mortgage and Finance, Inc.'s Motion for Judgment on the Pleadings (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 10/3/2016. (ks)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JACQUELYNN (JACKIE) L. JACKS,
Plaintiff,
vs.
VANDERBILT MORTGAGE AND
FINANCE, INC.,
Defendant.
)
)
)
)
)
)
)
)
)
)
Case No. CIV-16-805-M
ORDER
Before the Court is defendant Vanderbilt Mortgage and Finance, Inc.’s (“VMF”) Motion for
Judgment on the Pleadings, filed August 30, 2016. On September 20, 2016, plaintiff filed her
response, and on September 27, 2016, VMF filed its reply. Based upon the parties’ submissions,
the Court makes its determination.
This is the third action brought by plaintiff in connection with a manufactured home
constructed by CMH Manufacturing, Inc. (“CMH Manufacturing”) and sold to plaintiff by CMH
Homes, Inc. (“CMH Homes”). The first action was filed in the District Court of Stephens County,
State of Oklahoma on December 21, 2012, against CMH Homes, CMH Manufacturing, and VMF,
alleging negligence and manufacturer’s products liability. Plaintiff amended the complaint on
December 4, 2014, adding breach of implied warranty of habitability and rescission claims. CMH
Homes and CMH Manufacturing removed the case to this Court on January 12, 2015, and
subsequently moved to dismiss the claims for failure to obtain service within 180 days under Okla.
Stat. tit. 12, §§ 2004(I), 2012(b)(5). On May 5, 2015, the Court dismissed the claims against CMH
Homes and CMH Manufacturing. On June 4, 2015, the Court dismissed the claims against VMF
without prejudice for untimely service.
The second action was filed in the District Court of Stephens County, State of Oklahoma on
December 23, 2014, against CMH Homes, CMH Manufacturing, and VMF, alleging the same causes
of action – negligence, manufacturer’s products liability, breach of implied warranty of habitability,
and rescission. VMF was never served. CMH Homes and CMH Manufacturing removed the case
to this Court on January 14, 2015. This Court dismiss VMF on July 24, 2015 based upon plaintiff’s
failure to timely serve it with the summons and complaint.
The third, and instant, action was filed by plaintiff in the District Court of Stephens County,
State of Oklahoma on June 28, 2016 against VMF alleging the same causes of action – negligence,
manufacturer’s products liability, breach of implied warranty of habitability, and rescission. VMF
removed this action to this Court on July 15, 2016. VMF now moves, pursuant to Federal Rule of
Civil Procedure 12(c), for a judgment on the pleadings in its favor because (1) plaintiff’s claims are
time-barred, and (2) the FTC Holder Rule does not permit plaintiff to impose liability on VMF for
claims that plaintiff may have against the manufacturer of the home, CMH Manufacturing.1
VMF contends that the statute of limitations has expired on each of plaintiff’s claims. In
Oklahoma, the statute of limitations on a claim for negligence is two years. See Okla. Stat. tit. 12
§ 95(A)(3). Further, under Oklahoma law, a negligence claim accrues, and the statute of limitations
runs, when injury to the plaintiff is certain and not speculative. See Cabinet Solutions, LLC v.
Kelley, 288 P.3d 254, 257 (Okla. Civ. App. 2012). Oklahoma also applies a discovery rule such that
the statute of limitations is tolled until the plaintiff is put on reasonable notice of injury. See
Marshall v. Fenton, Fenton, Smith, Reneau & Moon, P.C., 899 P.2d 621, 624 (Okla. 1995).
1
Because the Court finds that plaintiff’s claims are time-barred, the Court finds it need not
address VMF’s other basis for judgment on the pleadings.
2
Additionally, in Oklahoma, the statute of limitations on a products liability claim is two years. See
Fuchs v. Fleetwood Homes of TX, 149 P.3d 1099, 1101 (Okla. Civ. App. 2006). Oklahoma’s
discovery rule also applies to products liability claims. See Daugherty v. Farmers Coop. Ass’n, 689
P.2d 947, 950-51 (Okla. 1984).
In her Petition, plaintiff alleges that CMH Manufacturing was negligent in its installation of
the manufactured home’s water system and CMH Homes was negligent in its attempts to repair the
water leaks that caused reoccurring mold issues.
Additionally, plaintiff alleges that the
manufactured home was unreasonably dangerous at the time it left the possession of the
manufacturer and at the time CMH Homes sold it to her. Plaintiff alleges the hidden defects
consisted of an improperly designed and/or improperly installed water system. Based upon the
above-alleged facts, the Court finds the two year statute of limitations period began to run when
plaintiff discovered in late December 2010 that the home had suffered damage because of an alleged
water leak and expired two years later in December 2012, approximately three and one-half years
before the instant action was filed. Additionally, assuming plaintiff has a second negligence, and
perhaps products liability, cause of action based upon mold from a water leak found in a different
location than the first leak, that cause of action would have accrued in November 2012 when she
found the mold and expired two years later in November 2014, approximately a year and a half
before the instant action was filed.
In her response, plaintiff alleges the time for bringing claims for negligence and products
liability involving an improvement made to real property is governed by Okla. Stat. tit. 12, § 109.
However, “Section 109 is not a statute of limitations; it is a statute of repose. . . . It sets an outer
boundary in time beyond which no cause of action may arise for conduct that would otherwise have
3
been actionable.” St. Paul Fire & Marine Ins. Co. v. Getty Oil Co., 782 P.2d 915, 919 (Okla. 1989).
Further, the Oklahoma Supreme Court has distinguished a statute of limitation from a statute of
repose as follows:
a statute of limitation serves to place a limit on the plaintiff’s time to
bring an action. After the prescribed time period has lapsed, a statute
of limitation serves to extinguish the remedy for the redress of an
accrued cause of action. A statute of repose, by way of contrast,
restricts potential liability by limiting the time during which a cause
of action can arise. It thus serves to bar a cause of action before it
accrues. In a practical sense, a statute of limitation implicitly seeks
to punish those who sleep on their rights, while the statute of repose
operates to bar some plaintiffs’ recovery, no matter how diligent they
may have been in asserting their claims.
Smith v. Westinghouse Elec. Corp., 732 P.2d 466, 468 n.11 (Okla. 1987) (emphasis in original). In
the case at bar, plaintiff’s negligence and products liability causes of action have accrued and, thus,
the two year statute of limitations would apply to these causes of action rather than the statute of
repose set forth in Section 109.
In Oklahoma, the statute of limitations for breach of implied warranty on a sale of goods is
five years. See Okla. Stat. tit. 12A, § 2-725(1) (“An action for breach of any contract for sale must
be commenced within five (5) years after the cause of action has accrued. By the original agreement
the parties may reduce the period of limitation to not less than one (1) year but may not extend it.”).
A manufactured home is a “good” under Okla. Stat. tit. 12A, § 2-105(1). See Cochran v. Buddy
Spencer Mobile Homes, Inc., 618 P.2d 947, 950 (Okla. Civ. App. 1980). Additionally, the statute
of limitations on a breach of warranty claim begins to run at the time the allegedly insufficient goods
are delivered and a breach occurs. Okla. Stat. tit. 12A, § 2-725(2) provides:
A cause of action accrues when the breach occurs, regardless of the
aggrieved party’s lack of knowledge of the breach. A breach of
warranty occurs when tender of delivery is made, except that where
4
a warranty explicitly extends to future performance of the goods and
discovery of the breach must await the time of such performance the
cause of action accrues when the breach is or should have been
discovered.
Okla. Stat. tit. 12A, § 2-725(2).
In her Petition, plaintiff alleges:
That the manufactured home, after it was installed and made a
permanent part of the land, was not fit for human habitation as a
result of the multiple plumbing leaks in the hidden areas of the home,
which resulted in multiple incidences of toxic mold forming in
various areas of the home, which toxic mold resulted in the Plaintiff’s
family having suffered health problems requiring medical treatment
on numerous occasions.
Petition at ¶ 20. Plaintiff further alleges that the manufactured home was delivered and installed in
January, 2010. See Petition at ¶ 4. Based upon these allegations, the Court finds that plaintiff’s
breach of implied warranty of habitability cause of action accrued in January, 2010 when the home
was delivered and installed and expired five years later in January, 2015, approximately one and a
half years before the instant action was filed.
In Oklahoma, the statute of limitations for rescission is five years. See Okla. Stat. tit. 12A,
§ 2-725(1); Okla. Stat. tit. 12, § 95(1). As set forth above, the manufactured home was delivered
and installed in January, 2010. Accordingly, the Court finds that plaintiff’s rescission cause of
action accrued in January, 2010 and expired five years later in January, 2015, approximately one and
a half years before the instant action was filed.
Relying on Okla. Stat. tit. 12, § 100, plaintiff asserts that her causes of action are timely.
Section 100 provides:
If any action is commenced within due time, and a judgment thereon
for the plaintiff is reversed, or if the plaintiff fail in such action
otherwise than upon the merits, the plaintiff, or, if he should die, and
5
the cause of action survive, his representatives may commence a new
action within one (1) year after the reversal or failure although the
time limit for commencing the action shall have expired before the
new action is filed.
Okla. Stat. tit. 12, § 100. Plaintiff asserts that the first action was dismissed without prejudice on
June 4, 2015, and the instant action was filed on June 2, 2016, less than one year later, and this
action, therefore, is timely under Section 100. VMF, however, asserts that Section 100 does not save
plaintiff’s claims because plaintiff misconstrues the effective date of dismissal. Specifically, VMF
contends that the effective date of dismissal, i.e., failure of the action other than on the merits, is not
the date of this Court’s order dismissing VMF on June 4, 2015, but is June 20, 2013, the date of
dismissal by operation of law under Okla. Stat. tit. 12, § 2004(I).
Section 2004(I) provides, in pertinent part:
If service of process is not made upon a defendant within one
hundred eighty (180) days after the filing of the petition and the
plaintiff cannot show good cause why such service was not made
within that period, the action shall be deemed dismissed as to that
defendant without prejudice.
Okla. Stat. tit. 12, § 2004(I). This section has been interpreted to mean that an action is deemed
dismissed – the effective date of a dismissal – on the 181st day after the filing of the petition, rather
than the date of the order of dismissal, if the plaintiff has not shown good cause why service was not
made. See Moore v. Sneed, 839 P.2d 682 (Okla. Civ. App. 1992). In the first action, plaintiff was
given the opportunity to show cause why the claims against VMF should not be dismissed for failure
to timely serve VMF. See May 5, 2015 Order [docket no. 21 in Case No. CIV-15-34-M]. Plaintiff
did not respond to the Court’s May 5, 2015 Order, and the Court dismissed plaintiff’s claims against
VMF without prejudice. See June 4, 2015 Order [docket no. 23 in Case No. CIV-15-34-M].
Because plaintiff did not show good cause why service was not made, the Court finds that the first
6
action was deemed dismissed as to VMF on June 20, 2013, the 181st day after the filing of the
petition. Further, because the instant action was filed more than a year after June 20, 2013, the
Court finds that the instant action is not timely even if Section 100 is applied.
Accordingly, the Court GRANTS VMF’s Motion for Judgment on the Pleadings [docket no.
13] and DISMISSES the instant action.
IT IS SO ORDERED this 3rd day of October, 2016.
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?