Eskridge v. Ladd , 62 O.B.A.J. 296 ( 1991 )

SUMMERS, Justice.

Today’s case calls for our interpretation of certain provisions contained in the Small Claims Procedure Act found at 12 O.S.1981 § 1751 et seq. The specific issue is whether a timely filed Motion to Transfer, accompanied by an untimely counterclaim seeking damages in excess of the statutory Small Claims limits, requires the Small Claims judge to transfer the case “to the district court.”¹ We conclude that the matter rests within the sound discretion of the court, and offer guidelines for reconsideration on remand.

The case arises out of an auto accident on January 10, 1988. Plaintiffs Walter and Evelyn Eskridge filed this action nine days later in the District Court of Oklahoma County, Small Claims Division, and the hearing was set for February 12, 1988. On February 10, 1988, Defendant Donna Ladd filed a Motion to Transfer, a Motion to Add Additional Party Defendants, and a counterclaim in the amount of $100,000. All three motions were filed more than 48 hours prior to the hearing. Section 1757 requires that Motions to Transfer from the small claims docket be filed at least 48 hours prior to the hearing.

The trial court, however, found that the counterclaim was not timely filed because it did not comply with 12 O.S.Supp.1985 § 1758 which required that it be filed at least 72 hours prior to trial. The court also overruled the Motion to Add Additional Party Defendants, and denied the Motion to Transfer. Trial proceeded on the petition and judgment was entered against the defendant Ladd for $1,327.

Ladd timely filed a Motion to Reconsider and Motion to Vacate Judgment. The small claims court then granted Ladd’s Motion to Vacate on the basis that it had lost jurisdiction over the case when the amount of the counterclaim filed by defendant exceeded the jurisdictional amount that a special judge could consider under 20 O.S.1985 § 123(A)(1). The court also withdrew its Order (1) dismissing the counterclaim, (2) overruling the Motion to Add Additional Party Defendants, and (3) denying the Motion to Transfer. By vacating the previous Order without directions to transfer, the small claims court left pending there plaintiffs’ petition and defendant’s motions. The Plaintiffs appealed. The Court of Appeals, Division I, in a memorandum opinion, affirmed the vacation of the judgment, but remanded with directions to grant the Motion to Transfer. The Eskridges petitioned for certiorari, which was granted by this Court.

The Eskridges assert that the trial court erred in finding that it did not have jurisdiction. They claim that the counterclaim was untimely, and thus the fact that it was in excess of the jurisdictional amount permissible under the SCPA is irrelevant. Defendant Ladd disagrees, arguing that the 72 hour requirement of the SCPA did not apply to the counterclaim at bar because the amount was greater than the jurisdictional amount. Ladd concludes that because of the amount sought, a transfer was mandatory. The Court of Appeals agreed with the Eskridges insofar as they argued that the counterclaim was untimely filed. Nevertheless, the appellate court concluded that while the transfer was not mandatory, it should have been granted under Section 1757, the section allowing for discretionary transfers.

There are two types of transfers that may be done under the Small Claims Procedure Act: A discretionary transfer under Section 1757, and a mandatory one under Section 1759. We must resolve whether transfer was required under either statute.

Section 1759, in reference to the second type, or mandatory, transfer, stated “if a claim, a counterclaim, or a setoff is filed for an amount in excess of $1500, the action shall be transferred to another docket of the district court....” (emphasis added) Section 1758 requires that any counterclaim be filed at least 72 hours prior to the hearing. Here, the counterclaim was filed less than 72 hours prior to the hearing and concededly did not comply with Section 1758. This Court specifically addressed this situation in Carter v. Gullett, 602 P.2d 640, 641 (Okl.1979), wherein a motion to transfer under Section 1759 was premised on a counterclaim which was untimely filed under Section 1758. This Court stated that “the act requires a strict compliance with the 48 [now amended to require 72 hours] hour provision of Section 1758.... If the counterclaim is disallowed, there is no basis for a transfer.” Id. at 641. (In Carter v. Gullett, however, there was no accompanying Motion for discretionary transfer, as here.)

Defendant Ladd argues that the 72 hour requirement does not apply to Section 1759 because counterclaims which exceed $1500² are outside the dollar limit for a small claim. Under this reasoning, Ladd concludes that the counterclaim is valid and requires a mandatory transfer. Her argument is based on the fact that Section 1759 does not specifically refer to the 72 hour requirement of Section 1758. Ladd asserts that a counterclaim in excess of $1500 automatically falls under Section 1759, while a counterclaim which does not exceed $1500 falls under Section 1758. In other words, the two statutes are to be considered separately, each without consideration of the other. Yet in Carter this Court specifically stated that Sections 1758 and 1759 are to be construed together and in pari mate-ria. Id. at 641. Any counterclaim, regardless of amount, must be filed no later than 72 hours prior to the hearing in order to comply with the SCPA. Because Ladd’s counterclaim was not timely filed, it is invalid and does not invoke the mandatory transfer under Section 1759.

In its initial ruling, the trial court reached this conclusion as to the mandatory transfer. He also refused a discretionary transfer, took testimony, and ruled for the plaintiffs. However, upon reconsideration, the judge concluded that he had lost jurisdiction when the counterclaim was filed, and therefore vacated his previous order.

Insofar as the small claims judge determined that he was without jurisdiction, we must disagree. Clearly, the special judge had the power to make an initial determination of the timeliness of the counterclaim, along with the authority to consider the transfer. See 12 O.S.1981, § 1757-59. Even though the counterclaim was not timely filed, the small claims judge did not lose control of the case. It remained on the small claims docket. The question yet to be determined is whether the case should be transferred to another docket of the District Court pursuant to Section 1757.

That is the provision allowing for a discretionary transfer out of the Small Claims division, and it provides as follows:

“On motion of the defendant the action may, in the discretion of the court, be transferred from the small claims docket to another docket of the court, provided said motion is filed and notice given by the defendant to opposing party by mailing a copy of the motion at least forty-eight (48) hours prior to the time fixed in the order for defendant to appear or answer.... The motion shall be heard at the time fixed in the order and consideration shall be given to the hardship on the plaintiff, complexity of the case, reason for transfer, and other relevant matters. If the motion is denied, the action shall remain on the small claims dock-et_” 12 O.S.1981 § 1757 (emphasis added)

The motion filed by Defendant Ladd made reference to this section. The trial court stated in its Journal Entry of Judgment that defendant’s Motion to Transfer should be denied for the reasons that defendant’s counterclaim has been stricken, that a trial by jury may be had under the SCPA, 12 O.S.1981 § 1761, but that defendant had failed to follow the requirements thereof, and that a transfer of this matter would create a hardship upon plaintiffs.

Where a matter rests in the discretion of the trial court its action will not be disturbed unless the discretion is abused. In re Crane’s Estate, 201 Okl. 354, 206 P.2d 726 (1949). Abuse of discretion by the trial court cannot be presumed. Phillips Petroleum Co. v. United States Fidelity & Guaranty Co., 442 P.2d 303 (Okl.1968); Chase v. Watson, 294 P.2d 801 (Okl.1956).

The order shows that the trial judge considered the first three factors set forth in Section 1757 and determined that a discretionary transfer was not warranted. While these factors must be considered, Section 1757 also allows consideration to be given to “other relevant matters.” We believe that these “other relevant matters” must necessarily include a balancing of the competing interests of the parties. The interest of the plaintiff centers around the right to litigate his small claim quickly and inexpensively. As recognized by the legislature in enacting the SCPA, a valid interest is served by allowing certain cases below a specified dollar amount to be tried quickly. The SCPA also serves to reduce the case load of the other dockets within the district court.

The defendant also has interests which must be protected. As Ladd argues here, the time limits required by the SCPA may effectively bar her from litigating her counterclaim at a later time. We must agree that the trial judge, in entering judgment for the Eskridges, in effect made a determination that liability rested with Ladd. Although we do not rule on this point, we acknowledge that if that judgment were allowed to stand, Ladd’s counterclaim may be forever barred under the theories of collateral estoppel or res judi-cata. Wabaunsee v. Harris, 610 P.2d 782, 785 (Okl.1980); Am. Bank of Oklahoma v. Adams, 514 P.2d 1191, 1193 (Okl.1973); Boy Scouts of Am. v. Thompson, 380 P.2d 705, 708 (Okl.1963).

In balancing these interests, we do not rule that any time an untimely counterclaim is filed in excess of the statutory limit for cases on the small claims docket, a discretionary transfer must be granted. Such a ruling would invite abuse by defendants who seek to stall the litigation of a claim. It would also deny the small claims court the discretion specifically allowed under Section 1757. But we do hold that careful consideration by the small claims court is required to determine whether a defendant’s untimely filed counterclaim in excess of small claims limits is arguably meritorious, or whether it appears to have been filed merely as a delay tactic. If the counterclaim is such that it arguably appears recoverable in a sum in excess of small claims court dollar limits, this will weigh heavily in favor of a transfer.

The order of the small claims judge does not reflect that consideration was given to these competing interests. The record is completely devoid of the allegations made in the counterclaim. The counterclaim itself (mistakenly called “Cross-Petition” by defendant) is not contained in the record, and we cannot adequately determine whether the counterclaim mandates the exercise of discretion in favor of transfer. Ladd does state in her brief that settlement negotiations were ongoing with the Esk-ridges. This, however, without more, is insufficient to determine whether the counterclaim was filed merely as a delay tactic.

The trial judge’s error was in concluding upon reconsideration that it had lost jurisdiction to consider the Motion to Transfer. Hence, we remand this matter to the trial court for further consideration of Ladd’s request for a discretionary transfer under Section 1757. The opinion of the Court of Appeals is vacated. The Judgment originally rendered below remains vacated. The trial judge shall once more consider the requested transfer, and proceed in a manner consistent with the opinion here.

OPALA, C.J., HODGES, V.C.J., and LAVENDER, DOOLIN, HARGRAVE, ALMA WILSON and KAUGER, JJ., concur. SIMMS, J., concurs in result.

1 . In this context “district court” is courthouse vernacular for a division of court with authority to adjudicate suits seeking any amount of money. In truth the "Small Claims Court” is but a division of our omnicompetent District Court. See Okla.Const.Art. 7 § 7(a)'.

2 . The limit has since been raised to $2500.00. 12 O.S.1989 Supp. § 1751.