VANGUARD BUILDERS, INC. v. GRANITE RE, INC. ( 2014 )

FISCHER, P.J.,

dissenting:

1 1 In my view, the amendments to 61 0.8. § 2 discussed by the Majority were made to conform the statute with other lien statutes. In my view, section 2 is still "an ordinary statute of limitation, not an extinguishment provision of the rights, liabilities and cause of action referred to in 61 0.9.1961 §§ 1 and 2." Phillips Petroleum Co. v. U.S. Fid. & Guar. Co., 1968 OK 23, ¶ 0, 442 P.2d 303, 304 (Syllabus 1). Accepting as true Vanguard's argument that it was a direct subcontractor, it is undisputed that Vanguard did not file suit against Granite within the one-year limitation period required by section 2(A). Further, in its response to Granite's motion for summary judgment, Vanguard only asserted that its delay in filing this case resulted from its reliance on misleading statements by the contractor and its employee. 'Any suit on the bond not filed within the one-year limitation period is barred "unless the acts or conduct of the surety against whom the judgment is sought operates to estop such surety from pleading the limitation." Id. ¶ 0, 442 P.2d at 304 (Syllabus 2). No such "acts or conduct" of Granite are asserted by Vanguard. I would affirm the judgment of the district court and, therefore, respectfully dissent.