The Oklahoma Bar Journal January 2024

In footnote 12 of McBee , the court began with the history of §2012(A). The court noted that when Young was decided in 1991, §2012(A) provided that a defen dant could file “an appearance” together with a reservation of additional time because of the distinction between a “general appearance” (that resulted in the waiver of certain affir mative defenses) and a “spe cial appearance” (that did not waive defenses). 12 The court also acknowledged that the Legislature amended §2012(A) in 2002 by replacing “appearance” with “a reservation of time,” as noted above. 13 For these reasons, the court found that “the distinction between a special or general appearance would now appear inconsequential, and ostensibly, any reservation of time waives the defenses of paragraphs 2, 3, 4, 5, 6, and 9 of subsection B of [§2012].” 14

conflict by changing the statutory language in §2012(A) from the filing of “an appearance” to a “res ervation of time.” 8 The language, current as of 2004, now reads, “A defendant may file a reservation of time which shall extend the time to respond 20 days from the last date for answering. The filing of such a reservation of time waives defenses of paragraphs 2, 3, 4, 5, 6 and 9 of subsection B of this section.” 9 Despite the amendments to this statutory language, published cases in Oklahoma have continued to hold – without any analysis of this issue and as recently as 2020 10 – that a qualified/special entry of appear ance and reservation of time did not waive §2012(B) defenses pursuant to Young . In the past, practitioners have used this practice as an opportunity to effectively extend their client’s responsive pleading deadline from 20 days to 40 days without a waiver of affirmative defenses. THE OKLAHOMA SUPREME COURT WEIGHS IN: THE MCBEE FOOTNOTE In McBee v. Shanahan Home Design , the plaintiff filed lawsuits against multiple parties pertaining to the design and construction of her residence. 11 Summonses were issued and served on the defen dants. The defendants each filed special appearances, reserved additional time to answer the plaintiff’s petition and then moved to dismiss based on alleged defects in service of process in August 2020. The plaintiff did not assert a §2012(A) waiver argument, but the Oklahoma Supreme Court still took the opportunity to address the §2012(A) waiver issue as obiter dictum in a footnote of the opinion.

PRECEDENTIAL VALUE OF THE MCBEE FOOTNOTE AND FUTURE CONSIDERATIONS The plaintiff in McBee did not raise the §2012(A) waiver issue, and for this reason, the court did not consider the issue in the holding. Thus, the discussion on waiver based on the reservation of time in McBee was dictum and, while persuasive, is not binding. 15 Dicta can have a persuasive force, and “even dicta, once followed in subse quent opinions, can develop strong precedential value.” 16 The court’s pronouncement in footnote 12 of McBee , while dictum, provided an unambiguous and thorough historical and statutory interpre tation of §2012(A), which suggests the common practice of filing special entries of appearance and reservations of time by litigants in Oklahoma may constitute a waiver of certain affirmative defenses, including failure to state a claim. Rather than prescribing to the automatic extended 40-day answer date, practitioners should

Rather than prescribing to the automatic extended 40-day answer date, practitioners should now carefully examine the legal aspects of the petition to determine if §2012(B)(2)-(6) or (9) may give rise to a motion to dismiss before filing any reservations of time.

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