37 P.3d 866, 2001 OK 99

Supreme Court of Oklahoma.

Steve KORDIS, Plaintiff/Appellant,

v.

Lawrence KORDIS, Bertha Kordis, Lance Kordis and Tawnya Kordis,
Defendants/Appellees.

No. 92,680.
Nov. 13, 2001.

Inmate brought action for trespass on real property and conversion. After granting defendants' motion to dismiss, trial court denied inmate's motion to vacate, and inmate appealed. The Court of Civil Appeals affirmed. Upon grant of certiorari, the Supreme Court, Boudreau, J., held that trial court's failure to notify inmate that it had reconsidered order allowing inmate to attend hearing required reversal.
Trial court reversed and remanded.
*867 On Certiorari to the Court of Civil Appeals, Division 1.
¶ 0 Plaintiff, Steve Kordis, was an inmate in the custody of the department of corrections when he filed suit for trespass and conversion on October 7, 1997. Defendants asserted a statute of limitations defense and a hearing was set on Defendants Motion to Dismiss on October 2, 1998. Plaintiff filed a Writ Ad Testificandum, requesting an opportunity to appear at the hearing. The trial court granted the writ and issued a corresponding order of delivery to bring Plaintiff to court from his corrections facility. The hearing occurred on October 2nd, but Plaintiff was not permitted to attend, despite the fact the sheriff's office brought him to Oklahoma County for the hearing. After his return to the department of corrections, Plaintiff discovered judgment had been entered in favor of Defendants on October 9, 1998. Plaintiff filed a timely Motion to Vacate the October 9th judgment, taking issue with the fact he was denied the opportunity to appear at the hearing on October 2nd. The trial court denied this motion. This Court granted certiorari to determine if it was an abuse of discretion for the trial court to deny the Motion to Vacate in light of the manner in which the trial court conducted proceedings prior to entering judgment on October 9th. We find the trial court should have notified Plaintiff that it had reconsidered its previous order allowing him to attend the hearing; having failed Plaintiff in this regard, the trial court abused its discretion when it denied Plaintiff's Motion to Vacate the October 9th judgment.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; JUDGMENT OF THE TRIAL COURT REVERSED AND CAUSE REMANDED FOR FURTHER PROCEEDINGS.

*868 Steve Kordis, Hominy, Oklahoma, plaintiff/appellant pro se.
Kevin Krahl, Hornbeek, Krahl & Vitali, Oklahoma City, Oklahoma, for appellees/defendants.


BOUDREAU, J.
¶ 1 Steve Kordis, Plaintiff/Appellant/inmate, filed suit while in the custody of the department of corrections against Lawrence Kordis, Bertha Kordis, Lance Kordis and Tawnya Kordis, Defendants/Appellees, on October 7, 1997, alleging the Defendants trespassed upon his real property and wrongfully took his personal property. [FN1] Plaintiff sought restitution of his personal property or its value. In response, Defendants filed a Motion to Dismiss on October 27, 1997 in which they asserted that Plaintiff failed to state a claim upon which relief could be granted, because the two year statute of limitations had expired on his claims. The Defendants attached affidavits to the Motion to Dismiss in which each Defendant swore they had not entered Plaintiff's real property or taken any of Plaintiff's personal property at any time in the two years prior to the filing of Plaintiff's suit. Plaintiff filed a Response stating that he did not discover the alleged trespass and conversion until April 1996 and asserting that the statute of limitations was tolled until that date as a result. He also claimed the savings statute tolled the imposition of the statute of limitations because he had filed a counterclaim in a related action earlier brought by Lawrence and Bertha Kordis.
FN1. The case style in Plaintiff's filings for this case, CJ-97-7162, as well as the opinion of the Court of Civil Appeals contain only Lawrence and Bertha Kordis as the listed Defendants. However, Defendants' filings and the order appealed from, Order Denying Plaintiff's Motion to Vacate, contain additional listed Defendants, Lance and Tawnya Kordis. Due to the discrepancy, we will follow Supreme Court Rule 1.25(b), which provides that the style heading used in the appealed from order shall be the one used for purposes of appeal. Oklahoma Supreme Court Rules 12 O.S.Supp.2000, Ch. 15, App.


¶ 2 The trial court set a September 25, 1998 hearing date on Defendants' Motion to Dismiss. On September 23, 1998, Plaintiff filed a Petition for Writ of Habeas Corpus Ad Testificandum, in which he requested the trial court permit him to appear at the hearing, at his own cost, pursuant to 12 O.S.Supp.1993 § 397(C). [FN2] The trial court granted Plaintiff's writ and issued an Order of Delivery to the department of corrections to bring Plaintiff from the facility in which he was housed to the county courthouse for the scheduled hearing. The court changed the hearing to October 2, 1998. The sheriff subsequently transported Plaintiff to the Oklahoma County jail facility in time to attend the hearing on October 2nd. Although Plaintiff spent two weeks in the county jail, from September 29 to October 13, 1998, he did not attend the scheduled hearing nor did he come before the trial court for any matters relating to his case. The sheriff's office returned Plaintiff to his department of corrections facility on October 13th.
FN2. 12 O.S.Supp.1993 § 397(B) & (C). Prisoner as witness or complaining or defending party--Release for examination--Writ of habeas corpus

B. A prisoner confined in any prison or jail in this state who is the complaining party or defending party in a civil action brought pursuant to this title may apply for a Writ of Habeas Corpus for the purpose of appearing before the court. If the court issues such writ, it shall be issued to the custodian of the prisoner and shall order the prisoner to be delivered to the court the prisoner has named in the writ.

C. If upon application by the prisoner or the prisoner's attorney the court
issues a Writ of Habeas Corpus as provided in subsection B of this section, it shall order the person applying for such writ or other appropriate party to pay to the custodian executing the writ all costs of transporting the prisoner to and from the court. The writ shall serve as a judgment against the prisoner and may be enforced by the detaining governmental unit without further order of any court for a period of five (5) years after the date of the writ. The custodian executing the release shall notify the prisoner and the court, at the time of delivery, of the costs of transportation.


¶ 3 On October 9, 1998, a week after the hearing, the trial court signed an order granting Defendants' Motion to Dismiss reciting that the matter had come before the court on October 2, 1998. Because matters outside the pleadings were used to support the Motion to Dismiss, the order of *869 October 9th actually granted the Defendants a judgment pursuant to Rule 13. [FN3] The judgment made no mention of Plaintiff's absence from the proceeding.
FN3. With regard to the trial court's underlying dismissal of the case, it appears the trial court erred in its analysis of the statute of limitations. In actions for conversion or theft, the discovery rule,
which tolls the statute of limitations, applies. See In re 1973 John Deere 4030 Tractor, 1991 OK 79, 816 P.2d 1126; Murray v. Teape, 1953 OK 191, 260 P.2d 727. The discovery rule permits the limitations in tort cases to be tolled until the injured party knows, or in the exercise of due diligence, should have known of the injury. In the present case, Plaintiff asserted he did not discover the alleged theft until April 1996, which was less than two years from the filing of his Petition in October 1997. As a result, Plaintiff raised in his Response to the Defendants' Motion to Dismiss a genuine issue of material fact with regard to when the statute of limitations began to run. This fact issue should have precluded the October 9, 1998 order, which in effect granted Defendants summary judgment. See 12 O.S.1991 § 2012(b)(6); See also Shaffer v. Jeffery, 1996 OK 47, 915 P.2d 910, 913 (When matters outside the pleadings are used in support of a motion to dismiss, it is treated as a motion for summary judgment.).


¶ 4 Plaintiff filed a Motion to Vacate the October 9, 1998 judgment on November 2, 1998, complaining that the court conducted the scheduled hearing without him, despite the fact there was a standing order to deliver him to the hearing and he was available in the county jail. The Defendants filed a response to the Motion to Vacate asserting that no grounds existed to vacate the judgment, that Plaintiff was not entitled to attend the hearing, nor was he prejudiced. The Response acknowledges that the trial court conducted a hearing on October 2, 1998 at which Defendants were represented by counsel.
¶ 5 The trial court denied Plaintiff's Motion to Vacate the October 9th judgment without conducting a hearing, after which Plaintiff appealed to this Court. The Court of Civil Appeals found that the trial court did not abuse its discretion in failing to vacate the judgment. This Court then granted certiorari to examine whether the trial court abused its discretion in refusing to vacate the judgment in light of the manner in which the trial court conducted its proceedings before entering judgment.