P. THOMAS THORNBRUGH, Judge.
¶ 1 Dr. Jayen Patel appeals the trial court's February 14, 2013, order granting the motion to dismiss of Defendants Tulsa Pain Consultants, Inc., P.C., Martin Martucci, M.D., Andreas Revelis, M.D., Robert Saenz, Alana Campbell, Lam Nguyen, M.D., Pat McFadden, and Ebondie Titworth. Supreme Court Rule 1.36, 12 O.S.2011, ch. 15, app. 1, guides our review of this case without appellate briefing. After examining the record on appeal, we affirm the trial court's decision.
¶ 2 On November 5, 2010, Plaintiff filed the first action against Defendants in Case No. CJ-2010-7112 (Patel I). Plaintiff began his employment with Tulsa Pain Consultants, Inc. (TPC) in January 2008. According to the petition, Plaintiff and Defendants Dr. Andreas Revelis and Dr. Martin Martucci were each one-third owners/partners of TPC. Plaintiff alleges his relationship with Revelis and Martucci declined after he made the following complaints: (1) the failure of Revelis and Martucci to provide his contractual share of the company profits; (2) the redirection of funds by Revelis and Martucci to projects not benefitting TPC; and (3) the hostile work environment and sexual harassment committed by Robert Saenz. Plaintiff was terminated from TPC on May 11, 2010.
¶ 3 Plaintiff's petition, based on certain actions and/or inactions during the course of Plaintiff's employment, asserted claims for (1) civil conspiracy; (2) tortious interference with business; (3) tortious interference with prospective economic advantage; (4) breach of contract; (5) breach of fiduciary duty; (6) fraud in the inducement; (7) conversion; (8) "corporate waste, mismanagement of funds, self-dealing and breach of fiduciary duty" ("shareholder derivative action"); (9) negligent hiring, supervision, and retention; and (10) wrongful discharge.
¶ 4 Defendants responded to the petition with a motion to dismiss arguing that all of Plaintiff's claims must be dismissed as a matter of law for failure to state a claim pursuant to 12 O.S. § 2012(B)(6). Plaintiff filed a response, and Defendants with leave of court filed a reply.
¶ 5 The trial court granted the motion to dismiss as to (1) the tortious interference with prospective economic advantage claim against all Defendants except TPC, (2) the breach of contract claim against Revelis and Martucci, (3) the conversion claim, (4) the shareholder derivative action, (5) the negligent hiring, supervision and retention claim, and (6) the wrongful discharge claim. The order did not state whether the claims were dismissed with or without prejudice.
¶ 6 On April 4, 2011, Plaintiff appealed both the dismissal order and a subsequent order granting attorney fees and costs as Appeal No. 109,325. In April 2012, this Court reversed the dismissal of certain claims and remanded with directions for the trial court to "specify the deficiencies as to each claim which subject[ed] that claim to dismissal." We instructed the trial court either to "state that no amendment of the petition could cure the stated defect(s) or to set a reasonable time for Plaintiff to amend in accordance with 12 O.S. Supp.2010 § 2012(G)." Based on this conclusion, we also reversed the award to Defendants of attorney fees and costs associated with the motion to dismiss.
¶ 7 Meanwhile, on March 16, 2012, before the result of Appeal No. 109,325 was issued or mandated, Plaintiff refiled the same claims he had dismissed in Patel I. These claims make up the present case (Patel II). Plaintiff also filed a "Motion to Stay [Patel II] Pending Appeal" of Patel I. When Plaintiff re-filed Patel II pursuant to 12 O.S. § 100, Patel I was still pending on appeal. Plaintiff states he did not immediately serve
¶ 8 In a minute order filed February 14, 2013, the trial court denied Plaintiff's motion to stay Patel II pending appeal.
¶ 9 Defendants filed a motion to dismiss the claims raised in Patel II pursuant to 12 O.S. § 2012(B)(8) and "Oklahoma's long-established prohibition against claim-splitting."
¶ 10 In response, Plaintiff asked the trial court to deny Defendants' motion to dismiss because "(1) there is not another action currently pending in which Plaintiff's claim can be heard, and (2) the Oklahoma Legislature has expressly provided that once a Plaintiff has properly filed a claim, he or she can dismiss the same without prejudice to any future action."
¶ 11 Meanwhile, after the remand of Patel I, the trial court issued a "Clarification Order" explaining why it dismissed certain of Plaintiff's claims with prejudice. The order allowed Plaintiff to file an amended petition within 10 days pursuant to § 2012(G), with facts legally sufficient to cure other claims. Plaintiff filed a response in which he argued that the following claims were pled with sufficient facts to state a legally cognizable claim: (1) the tortious interference with prospective economic advantage claim against Martucci, Revelis, Saenz, Campbell, Nguyen, McFadden, and Titworth; (2) the breach of contract claim against Revelis and Martucci; (3) the conversion claim against Revelis and Martucci; (4) the corporate waste, mismanagement of funds, self-dealing and breach of fiduciary duty claim against Revelis and Martucci (shareholder derivative action); (5) the negligent hiring, supervision, and retention claim against TPC; and (6) the wrongful discharge claim against TPC.
¶ 12 In response, Defendants argued Plaintiff's claims continue to fail as a matter of law and should be dismissed with prejudice. After reviewing Plaintiff's Notification brief and Defendants' Response brief, the trial court again dismissed with prejudice Plaintiff's remaining six claims in Patel I. Plaintiff appealed this decision in August 2012 as Appeal No. 111,014.
¶ 13 In Appeal No. 111,014, our second opinion concerning Patel I, we affirmed the trial court's dismissal with prejudice of Plaintiff's claim of tortious interference with prospective
¶ 14 We reversed the trial court's dismissal of Plaintiff's claim against Defendants for tortious interference with prospective economic advantage based on Plaintiff's business relationship with existing and future patients and reversed the dismissal of Plaintiff's claims for conversion, for wrongful discharge, and for negligent hiring, supervision and retention, and remanded for further proceedings on these claims. Patel I continues to be litigated in the district court.
¶ 15 On February 14, 2013, the trial court granted Defendants' motion to dismiss Patel II on claim-splitting grounds, finding in part as follows:
Plaintiff's argument that dismissal of this case will amount to a "dismissal with prejudice of legally sufficient claims without discussion or record of their merits" is without merit as the claims alleged in Patel II are identical to the claims of Patel I. The Plaintiff made the decision to dismiss the claims even after legal argument had been presented and an amended [petition] had been filed.
¶ 16 Whether the trial court correctly concluded that another action was pending, thus necessitating the dismissal of this action pursuant to 12 O.S.2011 § 2012(B)(8), presents a question of law. See McCutcheon v. Britton, Ramsey and Gray, P.C., 2006 OK CIV APP 83, n. 2, 137 P.3d 1268 (citing Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶ 14, 859 P.2d 1081). Whether the trial court correctly concluded dismissal was appropriate for violation of the rule against claim splitting also presents a question of law. We review questions of law de novo. In re Hyde, 2011 OK 31, ¶ 8, 255 P.3d 411. Appellate courts have plenary authority to examine questions of law independently and without deference to the trial court's decision. Eagle Bluff, L.L.C. v. Taylor, 2010 OK 47, ¶ 9, 237 P.3d 173.
¶ 17 Although Plaintiff presents six issues on appeal, five of those arguments essentially involve whether the trial court erred in dismissing his claims as being barred by the common law rule against claim-splitting and 12 O.S.2011 § 2012(B)(8).
¶ 19 The plaintiffs in such a procedure essentially gamble that 1) they will receive a favorable appellate decision, leaving a remanded case in which they can refile their dismissed claims on remand; and 2) this refiling will take place either within the remaining statute of limitations, or the one-year grace period afforded by the savings statute.
¶ 20 In this case, the latter requirement was in danger of expiring on some if not all claims, as almost a year had passed with no mandate in Appeal No. 111,014. Hence, Plaintiff filed a new case, attempting to preserve the voluntarily dismissed claims. We find this procedure was not effective.
¶ 21 The Oklahoma Supreme Court has held that the "rule against splitting of a cause of action is applicable to bar a second action predicated upon the same cause of action." Lowder v. Oklahoma Farm Bureau Mut. Ins. Co., 1967 OK 245, ¶ 14, 436 P.2d 654. "The reasons for the rule against splitting a single cause of action have been given as including the prevention of multiplicity of suits and vexatious litigation for defendant." Id. ¶ 16.
¶ 22 The Oklahoma Supreme Court "has explained that a cause of action (or claim for relief) is defined using the transaction, occurrence, or wrongful act." Chandler U.S.A., Inc. v. Tyree, 2004 OK 16, n. 3, 87 P.3d 598 (citing Retherford v. Halliburton Co., 1977 OK 178, ¶ 11, 572 P.2d 966). The Supreme Court in Retherford held:
Id. ¶ 13.
¶ 23 The Restatement (Second) of Judgments, provides that "where one act causes a number of harms to, or invades a number of different interests of the same person, there is still but one transaction." Restatement (Second) of Judgments § 24, cmt. c (1982).
Restatement (Second) of Judgments § 24, cmt. d (1982).
¶ 24 Pursuant to the Restatement (Second) of Judgments § 25 (1982), the rule against claim splitting may operate to bar a plaintiff's claim even if in the second action plaintiff is prepared: "(1) To present evidence or grounds or theories of the case not presented in the first action, or (2) To seek remedies or forms of relief not demanded in the first action." Comment d of this section provides:
¶ 25 We conclude Patel II raises the same claims arising from the same facts/transactions as Patel I. Clearly, both cases involve the same parties, and the allegations in both cases arise from and relate to Plaintiff's employment relationship with Defendants over the same time period for which Plaintiff seeks actual and punitive damages. Plaintiff has represented in the record that "[t]he claims brought in this lawsuit . . . arise out of the same factual transaction(s) that underlie the claims on appeal in Patel I." Plaintiff states that all "of these claims relate to Plaintiff's employment relationship with TPC and his ownership interest in TPC and shareholder relationship with Defendants Revelis and Martucci." Plaintiff informed the trial court he anticipated filing a motion to consolidate this case with Patel I after the appellate decision was issued because "the claims in both actions all relate to the same issues, discovery" and "discovery will inevitably overlap." Plaintiff further stated that both "actions involve the same witnesses and the same transactions, documents and other evidence." We conclude Plaintiff impermissibly split his claims, subjecting Patel II to dismissal.
¶ 26 Plaintiff also argues the trial court erred in dismissing his claims pursuant to 12 O.S.2011 § 2012(B)(8). This provision states:
Section 2012(B)(8) authorizes filing a motion to dismiss on the grounds of another action pending. "A defendant may by motion interpose the pendency of other litigation as a bar to going forward with the action being prosecuted." McCutcheon v. Britton, Ramsey & Gray, P.C., 2006 OK CIV APP 83, ¶ 4, 137 P.3d 1268 (citing State ex rel. Tal v. Norick, 1999 OK 85, ¶ 6, 991 P.2d 999). The McCutcheon Court explained that the common law rule of abatement provides the background for the current statutory provision. The rule of abatement states:
Id. (quoting Myers v. Garland, 1927 OK 20, ¶ 14, 252 P. 1090)(emphasis added). "The purpose of the rule is to prevent a conflict of jurisdiction between courts, as well as expensive and vexatious litigation." Id. After applying
¶ 27 As set forth above, Patel II is based on the same claims and transactions as Patel I. Both cases involve the same parties, and the allegations in both cases arise from and relate to Plaintiff's employment relationship with Defendants over the time period for which Plaintiff seeks actual and punitive damages.
¶ 28 The dispositive question is whether Patel I was pending when Plaintiff filed this action. When Plaintiff filed the current action on March 16, 2012, Patel I was pending on appeal before this Court, and our decision in that matter was issued on July 11, 2013. Therefore, when Plaintiff filed Patel II, Patel I had not been finally adjudicated.
¶ 29 We conclude the trial court did not err as a matter of law in dismissing this action pursuant to 12 O.S.2011 § 2012(B)(8), which requires the dismissal of an action when another action is currently pending between the same parties for the same claim.
¶ 30 Plaintiff argues he properly dismissed his claims pursuant to 12 O.S. Supp. 2009 § 683(1) which allows him to dismiss his action "without prejudice to a future action" before "final submission of the case to the jury, or to the court." Plaintiff contends he then timely refiled his action as allowed by "12 O.S. § 100." We agree with Plaintiff that § 683 permits a plaintiff to dismiss his case voluntarily "without prejudice to a future action" and that § 100 allows him to refile that action within a year of that dismissal. However, the filing or refiling of any action is always subject to affirmative defenses pled by a defendant. In this case, Defendants filed a motion to dismiss based on the prohibition against claim splitting and on 12 O.S.2011 § 2012(B)(8). Empire Oil & Ref. Co. v. Chapman, 1938 OK 253, ¶ 0, 79 P.2d 608 ("The rule against splitting causes of action is for the benefit of defendant, who may expressly or impliedly waive its benefits.")(syl. no. 2 by the court). We cannot conclude the trial court erred in granting Defendants' motion to dismiss.
¶ 31 After considering the record, the arguments of the parties, and relevant law, we conclude that the trial court correctly granted Defendants' motion to dismiss and we affirm its order.
¶ 32
BARNES, J., and FISCHER, J. (sitting by designation), concur.