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Clonts v. State ex rel Dep't of Health9/27/2005
ent of dismissal and argues the appeal was not dismissible because it was filed within thirty days and therefore timely, and §1-1914.2 (C) is not a statute of repose. We agree with Mr. Clonts. First, under all statutes with even possible relevance to the question of timeliness here, he had thirty days to file his administrative appeal. See 63 O.S. 2001, §1-830 (C) and (D); 63 O.S.2001, §1-1943; 63 O.S. Supp. 2002, §1-1914.2(C) and 75 O.S. 2001, §318. Second, §1-1914.2 (C) is not a statute of repose.
A statute of repose bars a cause of action before it accrues. It "sets an outer boundary in time beyond which no cause of action may arise for conduct that would otherwise be actionable, as opposed to a statute of limitation which disturbs a vested substantive right. St. Paul Fire & Marine Ins. Co. v. Getty Oil Co., 1989 OK 139, 782 P.2d 915, 919. In Smith v. Westinghouse Elec. Corp., 1987 OK 3, 732 P.2d 466, we considered issues concerning the application of a statute of repose, 12 O.S. 1981 §109, which mandates that "No action in tort to recover damages . . . for any deficiency in . . . design, planning, supervision or observation of construction or construction of an improvement to real property . . . shall be brought. . . more than ten (10) years after substantial completion of improvement." We observed that existing statutes of repose enacted in the various states appeared to affect claims brought for: (a) products liability; (b) medical malpractice; and (c) defective improvements to real property, and we noted that statutes of repose and statutes of limitation have legal characteristics which are both similar and significantly different from each other. They are similar in that they both give repose to a defendant; but different in that a statute of limitation extinguishes the remedy for an accrued cause of action by putting a limit on the time to bring an action, while a statute of repose restricts liability by barring a cause of action before it accrues. Id. at 468, n. 11.
Section 1-1914.2(C), while not a statute of repose, is an obvious reflection of legislative regard for the importance of affording immediate judicial review to one in the position of Mr. Clonts, who has had his property and personal rights taken from him by an ex-parte order of an administrative body. It informs the District Court that appeals for review from such an action are entitled to, and should be afforded, high priority on the court's docket. The trial court's dismissal of this appeal because Mr. Clonts, for whatever reason, did not file it within five days of the Department's action, is contrary to the purpose of this protective provision.
This administrative appeal was timely filed. The district court's dismissal was erroneous and must be reversed. As we are concerned here only with the question of the dismissal, we do not address any issues regarding the merits of the case raised by appellant. The matter is remanded for hearing and consideration of those issues.
ALL JUSTICES CONCUR
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