The Oklahoma Bar Journal January 2024

L itigation & T rial P ractice The McBee Footnote and

Waiving Affirmative Defenses Through Reservations of Time By Spencer C. Pittman U PON A CLIENT’S RECEIPT OF A SUMMONS AND PETITION IN OKLAHOMA state court, it is common practice for civil litigators to instinctively file a template special entry of appearance and reservation of time to extend their client’s responsive pleading deadline by an additional 20 days. Reserving time to otherwise file a respon sive pleading waives certain affirmative defenses, including those relating to jurisdic tion, venue, service of process, capacity of a party to be sued and failure to state a claim. 1

Since 1991, legal precedent in Oklahoma has held that filing a reservation of time preserves the listed affirmative defenses so long as it is accompanied by an entry of appearance that is qual ified (or special) but not general. 2 The Oklahoma Supreme Court in McBee v. Shanahan Home Design 3 cast doubt on this longstanding practice in a footnoted obiter dic tum . The court’s dictum suggested that a statutory amendment by the Legislature in 2002 eliminated this popular practice. This article explores the history and current status of the special entry of appear ance and reservation of time statute and the (purportedly) resulting waiver of affirmative defenses resulting therefrom after McBee .

The Oklahoma Supreme Court first addressed the waiver issue in Young v. Walton . In Young , the plain tiff argued that the defendants’ filings of “special appearances” in response to the petition waived the defenses of improper venue and failure to state a claim under §2012(A). The court found the timely filing of “an appearance” extended the time for the defen dants to respond and operated as a waiver of certain defenses, but the waiver of the §2012(B) defenses “applie[d] only to a defendant’s general or perhaps to an unspeci fied appearance, not to one that is explicitly qualified.” 6 Young teaches that the qualification of the appear ance is crucial. By way of example, in Turpen v. Hamby , 7 the defen dants filed unqualified “entries of appearance,” reserved additional

THE HISTORY OF OKLA. STAT. TIT. 12 §2012(A) It is a well-established legal principle that a general entry of appearance by a party to an action results in a waiver of the right to raise jurisdictional defects, such as improper service of process or venue. 4 When the Oklahoma Pleading Code was first enacted, the drafters included language in §2012(A) consistent with the waiver doctrine: Within 20 days after the service of the summons and petition upon him, a defendant may file an appearance which shall extend the time to respond 20 days from the last date for answering. The filing of such an appearance waives defenses of paragraphs 2, 3, 4, 5, 6 and 9 of subsection B of this section . 5

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

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THE OKLAHOMA BAR JOURNAL