Grider v. USX Corp.

Grider v. USX Corp.
1993 OK 13
847 P.2d 779
64 OBJ 597
Case Number: 74997
Decided: 02/23/1993
Supreme Court of Oklahoma

 
GUY GRIDER, APPELLANT,
v.
USX CORPORATION, A DELAWARE CORPORATION; TEXAS OIL
& GAS CORP., A DELWARE CORPORATION; TXO PRODUCTION CORP., A DELAWARE CORPORATION; RATLIFF EXPLORATION COMPANY, AN OKLAHOMA CORPORATION; RATLIFF
DRILLING COMPANY, AN OKLAHOMA CORPORATION; DIVERSIFIED OIL & GAS
EXPLORATION, INC., AN OKLAHOMA CORPORATION; DIVERSIFIED WELL SERVICING CORP., AN OKLAHOMA CORPORATION; BARTON W. RATLIFF, INDIVIDUALLY; AND JIM D.
BREWER, INDIVIDUALLY, APPELLEES.

Certiorari to the Oklahoma Court of Appeals, Division III; Charles L. Owens.

¶0 Certiorari granted to review the published opinion of the Court of Appeals, Division III. Appellant urges that his suit was timely filed. Appellees urge that 12 O.S. 1991 § 100 does not operate to "save" the action from the statute of limitations. We hold: (1) Section 100's one year period begins to run when the judgment has completed the appellate process. (2) Section 100 operated to save those theories of recovery which were timely filed. (3) The case is remanded for a factual determination of whether the original filing in federal court was timely. (4) The state claims were not waived during the federal appeals. (5) The appeal was premature only as to Defendant USX. COURT OF APPEAL'S OPINION IS VACATED; ORDER OF DISTRICT COURT REVERSED; APPEAL DISMISSED AS TO DEFENDANT USX; CASE REMANDED FOR FURTHER PROCEEDINGS.

Daniel J. Gamino, Daniel J. Gamino & Associates, P.C., Oklahoma City, for appellant.

James W. Dawson, Merson & Campbell, Oklahoma City, for appellees Diversified Oil & Gas Exploration, Inc., Diversified Well Servicing Corp., and Jim D. Brewer.

Robert D. Nelon, G. Babette Patton, Andrews, Davis, Legg, Bixler, Milsten & Price, Oklahoma City, for appellees USX Corp., and Texas Oil & Gas Corp., and TXO Productions Corp.

Robert D. Baron, Eric S. Eissenstat, Fellers, Snider, Blankenship, Bailey & Tippens, Oklahoma City, for appellees Ratliff Exploration Co., Ratliff Drilling Co., and Barton Ratliff.

 
SUMMERS, Justice:

[847 P.2d 781]

¶1 Although this appeal arrives here on certiorari in a seemingly complicated procedural posture, resolution of a single [847 P.2d 782] first-impression issue disposes of most of it. That issue requires our interpretation of 12 O.S. 1981 § 100 , the "savings" statute which allows an additional year to bring a new action after a suit fails for reasons other than upon its merits. Is the one year period counted from the dismissal order of the trial court, as defendants urge, or from the terminal date of a timely appeal, as argued by plaintiff? We resolve the question in favor of the plaintiff's theory, and thus reverse most of the trial court's order dismissing the latest suit as untimely. Only that portion of the lower court's dismissal as to defendant USX remains undisturbed, and that is because plaintiff's appeal as to the order dismissing that defendant was untimely (actually premature), and must be dismissed.

¶2 Plaintiff Grider, an Oklahoma City grocer, apparently experienced an unsuccessful oil and gas venture as a working interest owner in the early 1980's. In the aftermath he filed suit in state court on February 22, 1985, alleging fraud and embezzlement. The defendants were Ratliff Exploration Company (REC), Ratliff Drilling Company (RDC), TXO Production Corporation (TXO), and Texas Oil & Gas (TOG). On September 29, 1986, he dismissed the case without prejudice and refiled it the same day in federal court. The federal complaint was based on the same transactions as the state suit and contained the same allegations of fraud and embezzlement, as well as new allegations under the Racketeering Influenced and Corrupt Organizations Act (RICO) and antitrust violations. This suit named as defendants those first named in the state action, and added Diversified Oil and Gas Exploration Inc. (DOG), Diversified Well Servicing Corporation (DWS), Barton Ratliff individually and Jim Brewer individually. All theories of recovery centered on transactions which occurred during the years 1982 through 1985.

¶3 On April 2, 1987, the suit was dismissed by the federal court. As the basis for its dismissal the federal court held that the complaint failed to state a RICO claim. Because the federal claims were dismissed, the pendent state claims were also dismissed. Grider filed an appeal and on March 21, 1989, the Tenth Circuit Court of Appeals affirmed the dismissal. On October 2, 1989, the U.S. Supreme Court denied certiorari. On October 12, 1989 Grider again filed suit in state court. This suit was based on the same set of facts as the first state suit and the federal suit. The same defendants were named as were named in the federal suit, and USX, the new owner of TXO and TOG, was added as a defendant. The defendants, appellees here, filed motions to dismiss. As grounds for dismissal all defendants urged that the claims were time-barred. The trial court granted the motions on January 17, 1990.

¶4 On appeal the Court of Appeals affirmed the trial court's dismissal in an opinion designated for publication. Relying on its understanding of Chandler v. Denton, 741 P.2d 855 (Okla. 1987), the appellate court held that the time period allowed by Section 100 began when the federal district judge dismissed the action, rather than when the United States Supreme Court denied certiorari. We granted certiorari on May 4, 1992, and now reverse and remand for further proceedings. We also dismiss the appeal as to defendant USX.

¶5 First, let it be understood that no defendant urges that the one-year savings period began to run with the September 29, 1986 voluntary dismissal of the first case filed in state court. Whether this is because no defendant named in that first suit believed that limitations had run as to it prior to dismissal, or because of some other reason, that first state court dismissal is of no consequence here. Our interpretation of Section 100 has been, and is, that it affords one and only one refiling if a case is dismissed after limitations has run. U.S. v. Swyden, 175 Okl. 475, 53 P.2d 284, 288 (Okla. 1936). This opinion answers only the questions briefed, foremost of which is whether the one-year period starts with dismissal of the federal suit at the trial level or with the finality of the federal appeal.

[847 P.2d 783]

¶6 Also, we take note that neither party asserts that Section 100 is inapplicable due to the fact that the dismissed case was filed in federal court. In Edmison v. Crutsinger, 165 Okl. 252, 25 P.2d 1103 (1933) we held that Section 100 applies to extend the limitations period regardless whether the dismissed suit was filed in state court or federal court sitting within the state of Oklahoma. See also Smith v. Ogle, 196 Okl. 295, 164 P.2d 992 (1945).

I. THE COMMENCEMENT OF THE LIMITATION PERIOD OF SECTION 100

Title 12 O.S. 1991 § 100 provides:

"if any action is commenced within due time and the judgment thereon for the plaintiff is reversed, or if the plaintiff fail in such action otherwise than upon the merits, the plaintiff . . . 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."

The statute has been termed a savings statute as it permits the filing of an action after the statute of limitations has run. See Ross v. Kelsey Hayes, Inc., 825 P.2d 1273, 1277 (Okla. 1991). It acts to extend the statutorily-established limitations period. Id.

¶7 Grider urges that his October 12, 1989 refiling was well within the one-year period allowed by Section 100. He claims that the one-year period did not begin to run until the judgment became final, and that it did not become final until the United States Supreme Court denied certiorari on October 2, 1989. The defendants, on the other hand, urge that the time period began when the federal District Court dismissed the state claims on April 2, 1987. In connection with that argument the defendants claim that Grider only appealed the federal court ruling as to the RICO and antitrust claims. They urge that he did not appeal the federal court's dismissal of the state claims of fraud and embezzlement.

¶8 Both Plaintiff and Defendants claim that Chandler v. Denton, 741 P.2d 855 (Okla. 1987) supports their position. In Chandler, we were called upon to decide whether the savings provision operated to protect a cause of action which was based on multiple theories of liability, some of which were barred before the original petition was filed. That action was first asserted as a counterclaim, which was ordered dismissed by the trial judge. The aggrieved defendant filed a "motion to reconsider". One of the questions was whether the one year commenced on the date of the original order of dismissal, or on the date the motion to reconsider was denied. We held that the one-year period commenced with the date the order of dismissal became final, rather than with the original order. Id. at 860, 863. Defendants here argue that an appeal in the first Chandler case indicated that we had held that an appeal does not delay commencement of the running of the one year. Such was not the Chandler holding, however. In Chandler we were not called upon to decide if an appeal could delay the running of the one-year period.

¶9 This "finality" requirement has recently been discussed by the Tenth Circuit Court of Appeals in Twashakarris, Inc., v. Immigration and Naturalization Serv., 890 F.2d 236 (10th Cir. 1989). Plaintiffs' first lawsuit in the Western District of Oklahoma was dismissed by the Court without prejudice. Rather than filing a new complaint plaintiffs appealed the dismissal. The dismissal was affirmed on appeal in March, 1986, and the plaintiffs refiled their complaint in February, 1987. The U.S. District Court dismissed this second complaint, stating that the statute of limitations had run.

¶10 The Tenth Circuit looked to the language of our Section 100. It observed that Section 100 provides two situations where an additional year to file is permitted: (1) in the instance of reversal of a judgment for the plaintiff and (2) if the plaintiff fails in an action otherwise than on the merits. [847 P.2d 784] Although the questioned action fell into the second category, the court found the wording of the first useful in deciding whether the limitations period began after the completion of an appeal:

The key to understanding this phrase is the word "action." We hold that an "action" includes the initial judgment and any validly filed appeals that suspend the finality of the judgment. Thus, if a plaintiff's case were dismissed otherwise than on the merits and the plaintiff filed a timely appeal or a timely motion that tolled the time required for appeal, the plaintiff would be given an additional year from the time the appeal or motion was adjudicated in which to refile a complaint. Under these circumstances, the "action" would continue until the appeal was resolved. This interpretation complements the first clause of the statute which does not take effect until after an appeal. Id. at 237.

Thus the Tenth Circuit held that, for Section 100 purposes, a validly-filed appeal would toll the limitations period until the appeal was resolved and the judgment became final.

¶11 While the definition of "final" has taken on different meanings in different contexts,

¶12 Our Section 100 tracks an identical statute from Kansas, originally General Statutes of Kansas, 1889, Paragraph 4100. The Kansas Supreme Court in New v. Smith, 86 Kan. 1, 119 P. 380 (1911)

"The appellee's contention would compel a party who deems himself prejudiced by such an order to forego his right of appeal, as frequently, perhaps generally, he cannot get a hearing thereon in the Supreme Court and commence a new action within one year. To commence a new action in the same court without an appeal is virtually to submit to what he regards as an illegal order. This is not the intent of the Code . . . We hold that the trustee had one year after the filing of the decision in the Supreme Court within which to commence a new action."

¶13 An overwhelming majority of jurisdictions agree with Kansas and the Tenth Circuit that the time of commencement of the savings provisions is the date the judgment is decided on appeal, not the date of determination in the trial court. See Whetsel v. Gosnell, 56 Del. 248, 193 A.2d 200 (1963); Dinerman v. Sutton, 45 Misc.2d 791, 258 N.Y.S.2d 13 (1965); Young v. Garrett, 212 Ark. 693, 208 S.W.2d 189 (1948), cert. denied, 335 U.S. 814, 69 S. Ct. 31, 93 L. Ed. 369 (1948).

¶14 Because we have held in Chandler that the date of finality of the order of dismissal is the determinative date, and because a judgment is not final, in this context, until the opportunity for appeal has passed or the appeal has been acted upon, we agree that the operative date here is that of the U.S. Supreme Court's denial of certiorari. Thus, Section 100's one-year saving period did not begin to run until certiorari was denied on October 2, 1989. Until the appeal process ended the proceeding was a continuation of the "action" commenced in the trial court. Mabee, 179 P.2d at 918; Twashakarris, 890 F.2d at 237. Any other decision could result in a waste of judicial time and resources, because a decision on appeal could negate any need for the refiling of a claim. Requiring the filing of a suit in District Court to proceed simultaneously with an appeal on the same issue would not be judicially efficient. Consistent with our prior case law and following that of a majority of our sister jurisdictions, we hold that the critical date is that date on which the appeal process is final. Grider's action was timely filed within this one-year period.

II. ABANDONMENT OF STATE CLAIMS ON APPEAL

¶15 The next issue presented is whether Grider abandoned his state claims by failing to raise them in the federal appeals. The Defendants urge that even if the savings period starts from the finality of the appeal as to issues decided in the appeal, Grider did not appeal the federal district court's dismissal of the pendent state claims, and thus Grider was required to proceed by refiling these claims within one-year of the date of the federal district court's dismissal. Grider insists that he did not abandon these appeals, and in fact raised the issues on appeal to the Tenth Circuit. The Tenth Circuit, in its opinion, recognized the presence of pendent state claims but did not address the correctness of the dismissal of those claims in light of the decision it reached.

¶16 The briefs of the parties in the Tenth Circuit appeal are not before this Court. Other than the Tenth Circuit opinion, there is nothing else in the record to indicate whether the state claims were abandoned. However, the Tenth Circuit opinion makes it clear that the state claims were dismissed only because the federal claims were dismissed and the federal court declined to retain jurisdiction over the pendent state claims. The Tenth Circuit specifically stated that Grider did not intend to waive any state claims, should the RICO claims be reinstated, but rather intended to pursue them under principles of pendent jurisdiction.

¶17 The parties have not argued that the pendent state issues were separate causes of action rather than alternative theories of recovery. The record indicates that the same operative events which allegedly occurred from 1982 to 1985 gave rise to the RICO theory and the antitrust theory as well as the state-law based theories of fraud and embezzlement. Grider's entire cause of action was based on the series of transactions in which he was allegedly deprived of proceeds from oil operations. Based on this and the Tenth Circuit opinion, we conclude that Grider did not abandon his right to pursue the state claims.

III. DOG, DWS AND BREWER'S DEFENSE OF STATUTE OF LIMITATIONS

¶18 Appellees DOG, DWS and Brewer assert that the action filed against them was time-barred. They assert that regardless of whether this Court applies the two-year limitation period for fraud or the three-year limitation period for "money had and received", the action was barred because it was brought more than three years after the operative events. Hence, they argue that because the original claim was time-barred, it cannot now be saved by Section 100.

¶19 DOG, DWS and Brewer were not named as parties until the action was filed in federal court in 1986. The complaint filed in federal court alleged that DOG [847 P.2d 786] fraudulently refused to remit revenues to Grider during 1982 and 1983, that DOG charged excessive rates in 1984 and 1985, and that DOG was involved in a conspiracy with DWS and Brewer to charge excessive rates. The federal court dismissed the federal claims for failure to state a claim and also dismissed the state claims. The federal court did not reach the question of whether these state claims were barred by the statute of limitations.

¶20 DOG, DWS and Brewer assert that they were not named as parties to the original action filed in state court, and that because the federal action was filed in 1986 after the limitations period had run, these particular theories of recovery are now time-barred. Grider does not directly address this argument, but instead focuses on the question of Section 100's commencement. The state trial court did not address this question either, but dismissed, holding that the operative date for starting the Section 100 one year was the date of the federal district court's dismissal.

¶21 We agree that if the original claim was time-barred, it cannot be "saved" by Section 100. Chandler, 741 P.2d at 863; Brown v. Hartshorne Public School Dist., 926 F.2d 959, 962 (10th Cir. 1991). A claim based on fraud must be brought within two years of the discovery of the fraudulent acts. 12 O.S. 1991 § 95 (Third); Richey v. Westinghouse Credit Corp., 667 F. Supp. 752 (W.D.Okla. 1986). Whether plaintiff Grider brought his 1986 federal action within that period, or within the three year period to recover "money had and received," under Section 95 (Second),

IV. MATURITY OF APPEAL AS TO TOG, TXO AND USX

¶22 TOG, TXO and USX urge that the Grider's appeal was filed prematurely. The trial court announced his decision to TXO and TOG in a letter on January 17, 1990. This letter did not include anything regarding USX. Later, on March 6, 1990, the trial court issued an order with regard to TOG and TXO, incorporating the January letter. He also, at that time, issued an order sustaining USX's motion to dismiss, in which no reference was made to the January letter. Clearly no decision as to USX was made until March 6, 1990. Grider had filed his petition-in-error on February 15, 1990, and thus before any adjudication as to USX. The Court of Appeals held that the appeal was premature as to USX.

¶23 In Oklahomans for Life, Inc. v. State Fair, 634 P.2d 704, 706 (Okla. 1981), we held that when an entire cause of action is resolved against one of several parties, that resolution is final and appealable. We held that failure to appeal from such a summary judgment would result in a final judgment in favor of the moving party. Id.

¶24 We disagree with the assertion of TXO and TOG that the petition-in-error was also premature as to them. They make the argument that plaintiff's appeal was premature because it was filed prior to the order of March 6 which memorialized the trial court's decision of January 17. However, this Court has consistently held that under the statutes in effect until January 1, 1991, the time period for filing a petition-in-error began to run when the court pronounced its decision. Miller v. Miller, 664 P.2d 1032, 1034 (Okla. 1983). "A judgment or order begins its legal life as soon as it is pronounced from the bench and before it is ever reduced to writing for entry of record by the clerk." Depuy, 775 P.2d at 1343.

CONCLUSION

¶25 The operative date to trigger the one-year savings provision of Section 100 is the date the judgment of dismissal became final. Thus the one-year period began to run on the date that the U.S. Supreme Court denied certiorari and brought finality to the action. The re-filing in state court was timely insofar as Section 100 is concerned.

¶26 Whether the filing in federal court on September 29, 1986 was timely under applicable statutes of limitations as to certain defendants is not factually ascertainable on the record before us and has not been ruled on by the trial court. On remand the District Court will make this determination.

¶27 As to the timeliness of plaintiffs' appeal, the arguments of TXO and TOG are rejected. The appeal as to them was brought to this court in a timely fashion. The appeal as to USX, however, must be and is hereby ordered dismissed. It was brought prematurely and gave this Court no jurisdiction to disturb the judgment in favor of USX.

¶28 The Court of Appeal's opinion is vacated. The District Court's order of dismissal is reversed as to all defendants over which this Court has appellate jurisdiction. The matter is remanded to the District Court for further proceedings consistent with our decision here.

¶29 SIMMS, HARGRAVE, KAUGER and WATT, JJ., concur.

¶30 OPALA, J., concurs in result.

¶31 LAVENDER, V.C.J., concurs in parts 1, 3, and 4; concurs in result as to 2.

¶32 HODGES, C.J., concurs in parts 1, 3, and 4; dissents from 2.

Footnotes:

1 For example, we say that an order is "final" when it "determines the action and prevents a judgment", 12 O.S. 1981 § 953 , meaning that it is ripe for appeal. Such an order is not "final," however, for res judicata purposes, if a timely appeal of its correctness still pends. Depuy, 775 P.2d at 1343; Kerr-McGee, 516 P.2d at 820.

2 New v. Smith was disapproved, but only as to certain other issues, in Campbell v. Dick, 71 Okl. 186, 176 P. 520, 522 (1918).

3 For a more extensive list of the jurisdictions which hold similarly, see 79 A.L.R.2d 1270, 1276-1281 (1961).

4 See Liberty Nat'l Bank of Weatherford v. Lewis, 172 Okl. 103, 44 P.2d 127 (1935).

5 In 1991 12 O.S. 1991 § 1006 was enacted to permit an appeal from a judgment which resolves one or more of the claims against one or more of the parties if that judgment expressly states that there is no just reason for delay. However, this statute was not in effect at the time of the trial court's ruling. Section 1006 now renders inoperative that portion of Oklahomans For Life, supra, referred to herein.

6 The current statute, which was not in effect for the purposes of this case, 12 O.S. 1991 § 990A , starts the time for appeal with "the date the final order or judgment is filed." (emphasis added)

OPALA, Justice, concurring in result.

¶1 The United States District Court for the Western District of Oklahoma dismissed plaintiff's [Grider's] RICO

¶2 I write separately to counsel that the pendency of federal reviews should not extend the one-year limit for refiling the dismissed claims in a state court unless the pendent claims' dismissal had been urged as error on reviews, or unless the plaintiff makes a convincing record-supported showing that mid-appeal dichotomizing of his complaint into separate federal- and state-law claims (by pressing the latter in a state court) would have harmed the prosecution of federal litigation.

I

THE PRE-STATUTORY DOCTRINE OF "PENDENT" JURISDICTION GOVERNS THE FEDERAL COURT'S DISMISSAL OF GRIDER'S STATE-LAW CLAIMS

¶3 A case-law doctrine known as "pendent" jurisdiction,

¶4 The court's explanation for allowing Grider to delay bringing a state suit for one year beyond the end of federal reviews is far too open-ended to be workable as a sound rule of our jurisprudence. Although pendent claims are often used as alternative grounds of recovery to federal claims, they are not ipso facto incapable of independent prosecution in a state court.

II

THE SAVINGS PERIOD PROVIDED IN § 100 FOR RECOMMENCEMENT OF STATE-LAW CLAIMS THAT FAIL DEHORS THE MERITS IS ORDINARILY TRIGGERED BY THEIR FEDERAL TRIAL-COURT DISMISSAL, WHICH FREES THEM FOR RESOLUTION BY A STATE TRIBUNAL

¶5 Although limitation periods are statutory, common law governs their construction.

III

ASSESSMENT OF THE RECORD IN THIS CAUSE

¶6 The record before us is incomplete; the parties incorporated for our guidance neither the federal district court's judgment roll nor the briefs submitted at various stages of federal reviews.

SUMMARY

¶7 In sum, I would pronounce today that the § 100 savings period may be triggered by the end of federal reviews either when (1) the pendent claims' dismissal is challenged as error both on appeal and on certiorari, or (2) if error in that dismissal is not urged in federal reviews, when a convincing record-supported showing is made that a mid-appeal commencement of a state-court action would have adversely affected the prosecution of federal claims. Because the course I would chart for Oklahoma jurisprudence today is new to the body of our decisional law, I would give the pronouncement a purely prospective application from the date mandate issues herein.

Footnotes:

"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 . . . 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." [Emphasis supplied.]

Edmison v. Crutsinger, 165 Okl. 252, 25 P.2d 1103, 1109 (1933); Smith v. Ogle, 196 Okl. 295, 164 P.2d 992, 995 (1946). But see Morris v. Wise, Okl., 293 P.2d 547, 550 (1956), a case that relies on Herron v. Miller, 96 Okl. 59, 220 P. 36 (1923). Morris holds § 100 uninvocable to save an action which was originally brought in a federal district court in Texas and was later recommenced in an Oklahoma state court. The teaching of Morris came under severe criticism in Bockweg v. Anderson, 328 N.C. 436, 402 S.E.2d 627, 633 (1991), reh'g denied 329 N.C. 277, 406 S.E.2d 599 (1991), for affording out-of-state federal-court dismissals dehors the merits a different treatment from that which is accorded in-state federal-court dismissals.

"(a) . . . in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." [Emphasis supplied.]

13 Grider's federal court complaint was filed Sept. 29, 1986. Congress' codification of pendent jurisdiction in 28 U.S.C. § 1367 applies to civil actions commenced on or after December 1, 1990. See supra note 12.

14 Gibbs, 383 U.S. at 727, 86 S. Ct. at 1139.

15 See Wright, Miller, and Cooper, FEDERAL PRACTICE AND PROCEDURE JURISDICTION 2D § 3567.1, 133 (1984), citing the rule in Gibbs, 383 U.S. at 726, 86 S. Ct. at 1139, for the statement that state-law claims should be dismissed if the underlying federal claims or questions are dismissed before trial. Later jurisprudence recognizes that this rule is discretionary. See Annotation, DISCRETIONARY EXERCISE OF PENDENT JURISDICTION OF FEDERAL COURT OVER STATE CLAIM WHEN JOINED WITH CLAIM ARISING UNDER LAWS, TREATIES, OR CONSTITUTION OF UNITED STATES, 76 ALR Fed 46 (1986).

16 Gibbs, 383 U.S. at 727, 86 S. Ct. at 1139. When Congress codified pendent jurisdiction, it enacted a federal "savings" clause. The pertinent terms of 28 U.S.C. § 1367(d) (1990) are:

"The period of limitations for any claim asserted under subsection (a)['s] [supplemental jurisdiction] . . . shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless state law provides a longer tolling period." [Emphasis supplied.]

A commentator upon § 1367(d) strongly suggests that litigants measure its savings time from the district court dismissal and not from the end of federal reviews. See D. Siegel, PRACTICE COMMENTARY, 28 U.S.C. § 1367 (1990) at p. 236, which states in pertinent part:

"The dismissal moment [for purposes of § 1367(d)] should be taken to be the moment of dismissal in the district court. Even if an appeal is taken to a court of appeals from the district court dismissal, the party whose claim has been dismissed under § 1367 does best to commence the state action within the prescribed time measured from the district court dismissal, and not from some later appellate affirmance of it. Perhaps, after commencing the state court action in such a situation, the plaintiff can ask the state court to stay the action - now timely commenced and pending - while the federal appeal proceeds. This seems to be the safest course until there is a definitive federal ruling about whether the 30-day period may be measured from an appellate determination. The matter is not addressed by § 1367(d) and anything connected with the statute of limitations must be handled conservatively. . . ." [Emphasis supplied.]

Under § 100, a time-barred claim that is dismissed otherwise than upon the merits may not be refiled more than once. U.S. Fire Ins. Co. v. Swyden, 175 Okl. 475, 53 P.2d 284, 288 (1936).

17 The 1990 codification of pendent jurisdiction in § 1367 leaves undisturbed the federal trial courts' discretion to dismiss pendent claims if it "has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3) (1990).

18 Where the federal trial-court dismissal of pendent claims is not challenged in federal reviews, allowing § 100 to extend the time bar past the very end of the review process would be entirely inappropriate if the federal court had declined to exercise pendent jurisdiction because (1) the state-law claims substantially predominate over federal claims either in terms of proof, of the range of issues raised or of the comprehensiveness of the remedy sought, (2) state claims tender issues of unsettled state-law dimensions or (3) trying the federal and state claims together would tend to confuse the jury.

19 An open-ended extension of § 100's one-year limit past the full length of federal reviews is the inevitable consequence of today's pronouncement which puts a premium on delay.

20 Reynolds v. Porter, Okl., 760 P.2d 816, 819 n. 6 (1988); Lake v. Lietch, Okl., 550 P.2d 935, 937 (1976). See Pryse Monument Co. v. District Court Etc., Okl., 595 P.2d 435, 438 n. 14 (1979).

21 MBA Commercial Const. v. Roy J. Hannaford, Okl., 818 P.2d 469, 473 (1991).

22 State-court recommencement of pendent claims during federal reviews might be prejudicial to the prosecution of federal claims if, for example, the state-law claim is so closely tied to questions of federal policy that another pending action would make the federal litigation dismissible, or if the federal reviews were to include questions of federal pre-emption of state-law claims.

23 Although Grider tried to supplement the record on this appeal by incorporation of materials from the federal-court litigation which were not timely tendered below, his attempt to cure the deficient record came too late. Material that was not before the trial court at the time of its adjudication may not be considered on appeal. Chamberlin v. Chamberlin, Okl., 720 P.2d 721, 723 (1986); Frey v. Independence Fire and Casualty Co., Okl., 698 P.2d 17, 20 (1985); Eckel v. Adair, Okl., 698 P.2d 921, 925 (1985).

24 See supra note 6.

25 While Grider argues that judicial economy strongly favored keeping the federal- and state-law claims together until federal reviews stood completed, he neither suggests nor offers to demonstrate that their separation would have harmed his federal litigation.

26 The text of § 100 gives us no clear guidance as to when its savings period begins to run in those instances where another forum's dismissal dehors the merits is challenged on review. Extant jurisprudence of this court and that from other states fails to provide a definitive solution. Purely prospective application should hence be given the rule I counsel the court to adopt today. See Poafpybitty and its progeny, supra note 10.

27 Poafpybitty, and its progeny, supra note 10.