RIVERO v. STAHLHEBER (2026)

¶1 This case resolves a first impression issue under the Oklahoma Citizens Participation Act (OCPA). The Act gives defendants the opportunity for an early off-ramp when sued for conduct protected by the First Amendment. There are, however, deadlines that trial courts, plaintiffs, and defendants must follow. In this case, the trial court heard argument on Defendant's OCPA motion to dismiss, decided to allow limited discovery, but then failed to rule on the dismissal motion for six years. Long before the trial court purported to grant Defendant's motion to dismiss, it had been denied by operation of law.

¶2 While we are compelled to reverse the trial court's dismissal under the OCPA, we do not decide the merits underlying Defendant's motion to dismiss. Defendant may still test whether Plaintiff has evidentiary support for his claims by filing a motion for summary judgment. But to take advantage of the OCPA's early off-ramp, a defendant and the trial court must follow the process set forth in 12 O.S. §§ 1430--1440. Six years removed, we confirm this process went awry.

¶3 The trial court's order granting Defendant's motion to dismiss is reversed, the opinion of the Court of Civil Appeals is vacated, and this case is remanded to the district court.

I.

¶4 In 2014, Defendant/Appellee Brad Stahlheber, D.O. (Dr. Stahlheber), reported Plaintiff/Appellant Dennis Rivero, M.D. (Dr. Rivero) to the Oklahoma Board of Medical Licensure and Supervision for performing a “wrong site” surgery.  ¹ The licensing board filed a formal complaint against Dr. Rivero and conducted a hearing pursuant to the Oklahoma Administrative Code. The licensing board heard testimony and argument by counsel and considered exhibits admitted into evidence before dismissing the complaint against Dr. Rivero.

¶5 Following the conclusion of those disciplinary proceedings, Dr. Rivero sued Dr. Stahlheber in Tulsa County District Court for intentional infliction of emotional distress, malicious prosecution, and tortious interference with business relations. Rivero served Stahlheber on November 1, 2018.

¶6 On December 7, 2018, Dr. Stahlheber filed a motion to dismiss pursuant to the OCPA, and the trial court set the matter for hearing on February 4, 2019, which was within the statutorily prescribed time. On January 3, 2019, Dr. Rivero filed a substantive response in opposition to Stahlheber's motion to dismiss arguing that the OCPA was inapplicable to this case and, even if the Act applied, Rivero has established a prima facie case to support his claims. On the same day, Rivero filed a motion seeking specific and limited discovery pursuant to 12 O.S. § 1435(B).

¶7 On February 4, 2019, the trial court called the case for hearing on Defendant's OCPA motion to dismiss. The district court heard substantive arguments from the parties as to whether Defendant's motion to dismiss should be granted. During the hearing, the trial court turned its attention to Rivero's motion for discovery. The parties agreed that some limited discovery was appropriate. At the hearing, the trial court announced: “Why don't you all work out a discovery plan. I'm going to grant the request by both sides to do some limited discovery and sort this out.” (ROA, Doc. 17, Tr. at 31:22--24.) The district court did not set a deadline for discovery, expressly continue or extend the motion to dismiss hearing to a later date, or rule on Stahlheber's motion to dismiss.

¶8 After the hearing on February 4, 2019, the district court entered an equally vague minute order:

CASE COMES ON FOR HEARING ON DF'S MOTION TO DISMISS; GERALD HILSHER APPEARS FOR PL; RANDY RANKIN APPEARS FOR DF. HEARING HELD ON THE RECORD WITH BRENDA EL HASSAN. CASE IS CONTINUED FOR COURT TO SET POSSIBLE DISCOVERY SCHEDULE; CASE WILL BE RESET BY COURT.

(ROA, Doc. 63, Docket.)

¶9 Though the minute provides that “the case is continued for the court to set possible discovery schedule,” no discovery schedule was ever set. Instead, the minute entry was superseded by a formal order entered eighteen days later. The February 22, 2019 order stated:

The Court will allow limited discovery on the issues pertaining to the motion to dismiss as Plaintiff objects to the attachments. Counsel should confer and consult the Court with other issues pertaining to scope and the OCPA time limits.

(Feb. 22, 2019 Order.)  ² This order did not continue or extend the motion to dismiss hearing to a later date. And nothing in the record indicates that either Stahlheber or Rivero advised the court on the deadline to decide the motion to dismiss or attempted to reset the motion to dismiss hearing in the months after the motion to dismiss came on for hearing on February 4, 2019.

¶10 More than four years passed before Dr. Rivero moved the trial court to enter an order confirming that Dr. Stahlheber's motion to dismiss had been denied by operation of law pursuant to 12 O.S. § 1437(A). Seven months later, the trial court ruled on that motion, denying Dr. Rivero's requested relief: “Motion to consider motion to dismiss by defendant[ ] denied by operation of law is respectfully denied․ [B]oth sides ․ asked for time to conduct discovery ․ which required various litigation in the appellate courts.” (ROA, Doc. 38, Jan. 3, 2024 Order.) Dr. Rivero subsequently moved the trial court to certify for interlocutory appeal its order denying the motion to deem Defendant's motion to dismiss denied by operation of law. The certification request was denied in May 2024, and another wave of discovery motions followed.

¶11 More than six years after Dr. Stahlheber's motion to dismiss first came on for hearing, the trial court again heard arguments on the motion to dismiss on March 5, 2025. Five days later, the trial court entered an order purporting to grant Dr. Stahlheber's motion to dismiss, finding “the heightened standards of the OCPA have not been met by [Dr. Rivero].” (ROA, Doc. 63, Mar. 10, 2025 Order.) “Specifically, the Court finds a lack of ‘clear and convincing’ evidence of a prima facie case under the OCPA ․” Id.

¶12 Dr. Rivero appealed on April 9, 2025. The appeal proceeded on an accelerated track without briefing pursuant to Okla. Sup. Ct. R. 1.36, and the case was assigned to the Court of Civil Appeals.

¶13 In filings at the district court, Dr. Rivero in part argued that the motion to dismiss filed pursuant to the OCPA should have been deemed denied by operation of law because the trial court did not rule on the motion within 30 days after the February 4, 2019 hearing. Dr. Stahlheber objected to that line of reasoning, arguing that the February 4, 2019 hearing on the motion to dismiss, although timely started, was continued and never brought to completion. According to Dr. Stahlheber, the OCPA's non-discretionary timing mandates were not triggered.

¶14 The Court of Civil Appeals agreed with Dr. Rivero and found that the “MTD was denied by operation of law on March 6, 2019, and the denial was not appealed. The non-discretionary deadline of the OCPA prevents our further review.” Rivero v. Stahlheber, No. 123,006, slip op. at ¶ 7 (Okla. Civ. App. Dec. 9, 2025). The Court of Civil Appeals reversed the decision of the trial court and remanded the case for further proceedings.

¶15 Dr. Stahlheber filed a petition for certiorari review of the Court of Civil Appeals’ decision, which this Court granted.

II.

A.

¶16 The OCPA “encourage[s] and safeguard[s] the constitutional rights of persons to petition, speak freely, associate freely and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect[s] the rights of a person to file meritorious lawsuits for demonstrable injury.” 12 O.S. § 1430(B). Consistent with this purpose, “the entire Act is devoted to deterring, preventing[,] and dismissing certain free speech/association/participation type lawsuits as soon as possible after filing.” Anagnost v. Tomecek, 2017 OK 7, ¶ 9, 390 P.3d 707, 710. This is accomplished by allowing parties to file motions to dismiss legal actions if the action is based on, relates to or is in response to the right of free speech, right of petition, or right of association. 12 O.S. § 1432(A).

¶17 The OCPA sets specific deadlines for filing, hearing, and ruling on motions to dismiss authorized by 12 O.S. § 1432(A) that modify the standard procedure for adjudicating dismissal motions under 12 O.S. § 2012(B). These purposeful time restrictions imposed by the OCPA require attentiveness by litigants and district courts.

¶18 Filing Deadline. In legal actions based on, related to, or in response to a party's exercise of the rights of free speech, right to petition, or right of association, a litigant may lodge a motion to dismiss that “shall be filed no later than sixty (60) days after the date of service of the legal action.” 12 O.S. § 1432(B); see also id. § 1432(A). “The court may extend the time to file a motion under this section on a showing of good cause.” Id. § 1432(B). While the OCPA does not specify how long the time for filing may be extended for good cause, district courts should be mindful that the text of the Act manifests intent to resolve these motions to dismiss as soon as possible. See Anagnost, 2017 OK 7, ¶ 9, 390 P.3d at 710.

¶19 Once an OCPA motion to dismiss is filed “all discovery ․ shall be suspended until the court has ruled on the motion to dismiss.” 12 O.S. § 1432(C). But there is a limited exception. “On a motion by a party or on the court's own motion and on a showing of good cause, the court may allow specified and limited discovery relevant to the motion to dismiss.” Id. § 1435(B).

¶20 Hearing Deadline. The OCPA imposes deadlines for hearing motions to dismiss. The default rule is that OCPA motions to dismiss shall be heard no later than 60 days after the service of the motion. Id. § 1433(A). However, if docket conditions of the court require, a party makes a showing of good cause, or the parties agree, the hearing date can be extended by 30 days such that the hearing on the motion occurs no later than 90 days after service of the motion. Id. § 1433(A)--(B). Moreover, if the court allows specified and limited discovery relevant to the motion to dismiss as permitted by § 1435(B), “the court may extend the hearing date to allow discovery ․, but in no event shall the hearing occur more than one hundred twenty (120) days after the service of the motion to dismiss.” Id. § 1433(C).

¶21 In BS&B Safety Sys., L.L.C. v. Edgerton, 2023 OK 89, 535 P.3d 1283, this Court considered the consequence of a district court failing to hear a motion to dismiss within the hearing deadlines imposed by 12 O.S. § 1433. We granted extraordinary relief to set aside a district court order deeming a motion to dismiss denied based on the trial court's failure to hold any hearing on a motion to dismiss before § 1433’s hearing deadline expired. BS&B Safety Sys., 2023 OK 89, ¶ 2, 535 P.3d at 1284. “While the OCPA states that a failure to rule on a motion filed pursuant to the OCPA within 30 days of a hearing results in the denial of the motion by operation of law, nothing in the Act states that the failure to set a hearing results in a denial of the motion by operation of law.” Id. ¶ 6, 535 P.3d at 1284. BS&B teaches that (1) a litigant should seek mandamus relief if a trial court fails to hear a motion to dismiss within the 60 to 120-day period mandated by § 1433; but (2) an OCPA motion to dismiss is not deemed denied based on the failure to set a hearing within § 1433’s deadline.

¶22 Though helpful in our analysis, BS&B does not resolve the case at hand. In contrast with BS&B, the district court set the motion for hearing and the parties appeared at a hearing on Defendant's motion to dismiss.

¶23 Ruling Deadline. The third deadline under the OCPA dictates when a district court must decide an OCPA motion to dismiss. “The court shall rule on a motion [to dismiss] ․ no later than thirty (30) days following the date of the hearing on the motion.” 12 O.S. § 1434(A). If the district court fails to rule on an OCPA motion to dismiss within 30 days following the date of the hearing on the motion, “the motion shall be considered denied by operation of law and the moving party may appeal.” Id. § 1437(A).

¶24 With this statutory framework in mind, we must decide (1) whether the proceeding on February 4, 2019 was a “hearing on the motion to dismiss”; (2) whether the trial court chose to “extend the hearing date” when it allowed limited discovery; and (3) whether the district court was permitted to grant Defendant's OCPA motion to dismiss if it was already denied by operation of law. Each of these questions is pure statutory interpretation, which we review de novo. McIntosh v. Watkins, 2019 OK 6, ¶ 4, 441 P.3d 1094, 1096.

B.

¶25 The proceeding on February 4, 2019 was a “hearing on the motion” triggering 12 O.S. § 1434(A)’s 30-day deadline for the district court to rule on Dr. Stahlheber's motion to dismiss. As noted, the OCPA dictates specific deadlines by which motion to dismiss hearings must be “set” and “occur.” 12 O.S. § 1433(A)--(B). Then a district court “shall rule ․ no later than thirty (30) days following the date of the hearing on the motion.” Id. § 1434(A).

¶26 While the OCPA does not expressly define “hearing,” its plain and ordinary meaning is not difficult to discern. A hearing is “[a] formal, scheduled setting in which an affected person presents arguments to a decision-maker.” Hearing, Black's Law Dictionary (12th ed. 2024). The record in this case demonstrates that the February 4, 2019 proceeding was a hearing on Dr. Stahlheber's motion to dismiss.

¶27 The trial court called the matter what it was while on the record: “The matter comes on on [sic] a hearing--or a Motion to Dismiss pursuant to the Oklahoma Citizens Participation Act.” (ROA, Doc. 17, Tr. at 2 (Feb. 4, 2019).) The trial court also received evidence in support of the motion to dismiss. (Id. at 9 ([Dr. Stahlheber's counsel]: “We'll offer [a letter drafted by Dr. Rivero] as Defendant's Exhibit No. 1 to the Motion to Dismiss, Your Honor.” The Court: “All right. It'll be received.”).)

¶28 Each party separately acknowledged that the day's hearing was, in fact, a hearing on the motion to dismiss. (Id. at 3 ([Dr. Stahlheber's counsel]: “[I]n response to [Dr. Rivero's] lawsuit this Motion to Dismiss was filed and is urged today.”); id. at 20 ([Dr. Rivero's counsel]: “[I]t's very possible that this matter could go up on appeal․ [I]f you grant Defendant's Motion to Dismiss under the record that you're going to hear today ․”).) During the February 4 proceeding, Dr. Stahlheber's counsel presented argument and offered evidence for granting the motion to dismiss. (Id. at 3--4, 9, 11, and 14--15.) Likewise, Dr. Rivero argued that the motion to dismiss should be denied, and he presented evidence in support of his position. (Id. at 23--24, 32--34.)

¶29 At the conclusion of the hearing, the district court entered a minute order again confirming that a hearing on the motion to dismiss had occurred. The court's February 4th minute entry begins: “CASE COMES ON FOR HEARING ON DF'S MOTION TO DISMISS ․” The fact that the district court did not rule from the bench on Dr. Stahlheber's motion to dismiss does not take the February 4th proceeding out of the hearing rubric. Neither does the fact that the parties pivoted to discussing Dr. Rivero's pending motion for discovery during the hearing. The OCPA contemplates that a district court's ruling on a defendant's OCPA motion to dismiss may not issue contemporaneously with the motion to dismiss hearing. This may be because limited discovery is appropriate or simply because a court needs to carefully consider the parties’ arguments. Regardless, the act expressly imposes a deadline for the court to rule “no later than thirty (30) days following the date of the hearing on the motion.” 12 O.S. § 1434(A). We hold that the proceeding on February 4, 2019 was a “hearing on the motion” to dismiss. Accordingly, we must next consider whether the trial court exercised discretion to “extend the hearing date” and continued the dismissal hearing sometime after February 4, 2019.

C.

¶30 Though the district court chose to allow limited discovery after the February 4, 2019 hearing, the trial court did not “extend the hearing date” as permitted by 12 O.S. § 1433(C). Thus, the 30-day deadline to rule on the motion to dismiss began running on February 4, 2019 and expired on March 6, 2019.

¶31 The OCPA does not contemplate full-scale discovery before a district court rules on a motion to dismiss. The default is that “all discovery ․ shall be suspended until the court has ruled on the motion to dismiss.” 12 O.S. § 1432(C). It is only “on a showing of good cause” that the district “court may allow specified and limited discovery relevant to the motion to dismiss.” Id. § 1435(B).

¶32 If a district court allows limited discovery, it may “extend the hearing date.” Id. § 1433(C). Interpreting a statute identical to 12 O.S. § 1433(C) under the Texas Citizens Participation Act, several Texas appellate courts ³ have concluded that the authority to “extend the hearing date” permits a trial court to continue a motion to dismiss hearing so long as it is completed no more than 120 days after the service of the motion to dismiss. Jones v. Heslin, 587 S.W.3d 134, 136--37 (Tex. App.--Austin 2019); CBS Stations Grp. of Texas, LLC v. Burns, No. 05-20-00700-CV, 2020 WL 7065827, at *2 (Tex. App.--Dallas Dec. 3, 2020). But permitting limited discovery does not automatically continue the hearing and toll the court's 30-day deadline to rule. The plain text of 12 O.S. § 1433(C) demonstrates that whether to extend the hearing date is in the trial court's discretion.

¶33 Whether to allow discovery and whether to extend the hearing date are separate decisions governed by separate statutes. Discovery is permitted by 12 O.S. § 1435(B): “On a motion by a party or on the court's own motion and on a showing of good cause, the court may allow specified and limited discovery relevant to the motion to dismiss.” Permitting discovery is necessary, but not sufficient, to extend the hearing date pursuant to 12 O.S. § 1433(C).

If the court allows discovery under subsection B of [§ 1435], the court may extend the hearing date to allow discovery under that subsection, but in no event shall the hearing occur more than one hundred twenty (120) days after the service of the motion to dismiss.

Id. If the court allows discovery, then the court may extend the hearing date. “May” is permissive. BS&B Safety Sys., 2023 OK 89, ¶ 4, 535 P.3d at 1284; see also MLC Mortg. Corp. v. Sun Am. Mortg. Co., 2009 OK 37, n.17, 212 P.3d 1199, 1204 n.17. The statute does not say that the hearing date shall or must be extended if the court allows discovery.

¶34 On the record before this Court, we conclude the district court did not extend the hearing date and continue the motion to dismiss to some later setting within 120 days of the service of the motion to dismiss. Immediately after the motion to dismiss hearing, the trial court entered a minute entry on the district court docket.

CASE COMES ON FOR HEARING ON DF'S MOTION TO DISMISS; GERALD HILSHER APPEARS FOR PL; RANDY RANKIN APPEARS FOR DF. HEARING HELD ON THE RECORD WITH BRENDA EL HASSAN. CASE IS CONTINUED FOR COURT TO SET POSSIBLE DISCOVERY SCHEDULE; CASE WILL BE RESET BY COURT.

Though the minute provides that “the case is continued for the court to set possible discovery schedule,” no discovery schedule was ever set. Instead, the minute entry was superseded by a formal order entered eighteen days later. The February 22, 2019 order stated:

The Court will allow limited discovery on the issues pertaining to the motion to dismiss as Plaintiff objects to the attachments. Counsel should confer and consult the Court with other issues pertaining to scope and the OCPA time limits.

This order did not continue or extend the motion to dismiss hearing to a later date. Nothing in the record indicates that either Dr. Stahlheber or Dr. Rivero advised the district court on the deadline to decide the motion to dismiss or attempted to reset the motion to dismiss hearing in the months immediately after the motion to dismiss came on for hearing on February 4, 2019.

¶35 Applying the plain text of the OCPA, it is clear that the district court permitted discovery pursuant to 12 O.S. § 1435(B). However, it is also apparent that the court did not extend the hearing date to another time within 120 days of service. Since the hearing date was not extended, the 30-day deadline for the court to rule on the OCPA motion to dismiss was not tolled. The district court was required to rule on the motion to dismiss by March 6, 2019. When the trial court failed to do so, the motion was denied by operation of law.

¶36 We reject Dr. Stahlheber's argument that the trial court's post hoc description of events is relevant to our conclusion that neither the hearing deadline nor the ruling deadline were extended before the dismissal motion was denied by operation of law. Dr. Stahlheber notes that in rejecting Dr. Rivero's 2023 motion to deem Dr. Stahlheber's motion to dismiss denied by operation of law the trial court wrote: “the hearing [on the motion to dismiss] was held timely and continued so that discovery could be held ․” (ROA, Doc. 38, Order.) This characterization by the district court in 2024 does not comport with what actually happened and is immaterial to our analysis. In the February 4, 2019 minute entry, the trial court stated that the “case is continued for court to set possible discovery schedule,” but no discovery schedule was set. Instead, the minute entry was supplanted by an actual order that allowed discovery, required the parties to consult the trial court on OCPA deadlines (which they apparently did not do), and said nothing about extending the hearing date and continuing the motion to dismiss. The trial court's order denying Dr. Rivero's motion to deem the motion to dismiss denied is inapposite.

¶37 Moreover, even under Dr. Stahlheber's continuation theory, the district court was powerless to delay ruling on the motion to dismiss for six years. Even when discovery is allowed, the hearing on the motion to dismiss must occur within 120 days after service of the dismissal motion. 12 O.S. § 1433(C). Under the OCPA, the latest possible date to which the motion to dismiss hearing could have been continued was April 8, 2019. If the hearing date would have been extended, and if the court would have re-heard the motion to dismiss, the OCPA would have required a ruling by May 8, 2019. The district court did not attempt to rule on the motion to dismiss until March 10, 2025.

¶38 The hearing date on the motion to dismiss was not extended when the district court decided to allow discovery. The 30-day deadline for the district court to rule expired on March 6, 2019. Dr. Stahlheber's motion to dismiss was denied by operation of law six years before the trial court purported to grant it on March 10, 2025.

D.

¶39 Last, we consider whether the trial court was permitted to grant Dr. Stahlheber's OCPA motion to dismiss six years after it was denied by operation of law. The trial court had no such authority.

¶40 The OCPA provides an orderly process for adjudicating motions to dismiss and allows for interlocutory appellate review. See 12 O.S. § 1437. If a motion to dismiss is denied by operation of law due to the trial court's failure to rule, the moving party may appeal. Id. § 1437(A); Okla.Sup.Ct.R. 1.60(k). Interlocutory appeals for decisions appealable as a matter of right must be filed within 30 days. Okla.Sup.Ct.R. 1.61; see also R. 1.40(e). While the Texas Supreme Court, interpreting its Citizens Participation Act, has determined it is harmless error for a trial court to rule after the motion to dismiss has been denied by operation of law but before an appeal is initiated, see First Sabrepoint Cap. Mgmt., L.P. v. Farmland Partners Inc., 712 S.W.3d 75, 83 (Tex. 2025), there is no support for the proposition that a trial court can forestall a ruling on an OCPA motion to dismiss years after the appellate deadline has expired. Though potentially helpful for Dr. Stahlheber in this case, allowing a trial court to sit on a motion to dismiss for years runs counter to the deadlines expressly recited in the Act. It certainly would not facilitate deciding motions to dismiss as soon as possible.

¶41 Though admittedly obscured both by the tack taken by the trial court and by the parties’ apparent failure to consult with the court on OCPA deadlines as invited, Dr. Stahlheber could have lodged an interlocutory appeal on the OCPA motion to dismiss in 2019. See Thacker v. Walton, 2021 OK CIV APP 5, ¶¶ 2--3, 499 P.3d 1255, 1258. Dr. Stahlheber did not, and he must now test whether Dr. Rivero has the requisite evidentiary support for his claims via summary judgment.  ⁴ The district court's opportunity to rule on Dr. Stahlheber's motion to dismiss terminated when the motion was denied by operation of law and the time to initiate an interlocutory appeal expired.

¶42 We hold that the trial court lacked authority to grant Dr. Stahlheber's motion to dismiss on March 10, 2025.

III.

¶43 For a case that began more than eight years ago, we realize that today's decision reopens litigation that had seemingly reached its conclusion. Yet, we are bound to enforce the text of the controlling legislation. The OCPA directs us to construe the enactment liberally to effectuate its purpose and intent, which includes the expeditious resolution of motions to dismiss by imposing the measure's “clear, non-discretionary deadlines for the district court to follow.” BS&B Safety Sys., 2023 OK 89, ¶ 5, 535 P.3d at 1284; see also 12 O.S. § 1440(B). Although the opportunity for expeditious resolution of the motion to dismiss has long passed, we are nevertheless bound to impose the OCPA's clear, non-discretionary deadlines.

* * *

¶44 The proceeding on February 4, 2019 was a hearing on the motion to dismiss. Though the court allowed discovery, it did not extend the hearing date to continue the motion to dismiss. Thus, the trial court was required to rule on the motion to dismiss within 30 days after the hearing. When the trial court failed to rule by March 6, 2019, the motion to dismiss was denied by operation of law. Dr. Stahlheber did not appeal that denial, and the trial court lacked authority to grant the motion to dismiss on March 10, 2025. We reverse the trial court's order granting Defendant's motion to dismiss and remand this case to the trial court for further proceedings.

CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS’ OPINION VACATED; TRIAL COURT JUDGMENT REVERSED; AND CASE REMANDED FOR FURTHER PROCEEDINGS

FOOTNOTES

1.   The administrative proceeding spawned an unrelated appeal decided by this Court. State ex rel. Oklahoma State Bd. of Med. Licensure v. Rivero, 2021 OK 31, 489 P.3d 36.

2.   The order memorializing the trial court's ruling from the February 4, 2019 hearing--the focal point of this appeal--is not in the record. Order, https://www.oscn.net/dockets/GetDocument.aspx?ct=Tulsa&bc=1042836254&cn=CJ-2018-3569&fmt=pdf. This deficiency stems from the application of Okla.Sup.Ct.R. 1.36(c)(B), which by its plain terms is inapplicable to OCPA motions to dismiss. Okla.Sup.Ct.R. 1.36(a)(2). It is not surprising the litigants did not include the order based on the Court of Civil Appeals’ analysis in Steidley v. Cmty. Newspaper Holdings, Inc., 2016 OK CIV APP 63, n.3., 383 P.3d 780, 782 n.3. This Court has regularly taken judicial notice of the dockets of the district courts, In re Estate of Williams, 2023 OK 103, n.2, 538 P.3d 176, 178 n.2 (collecting cases), and we do so in this case.

3.   The OCPA was passed after the Texas Citizens Participation Act, 2011 Tex. Sess. Ch. 341, § 1, and contains various provisions that are identical or substantially similar to the Texas Act. See Krimbill v. Talarico, 2018 OK CIV APP 37, ¶ 5, 417 P.3d 1240, 1245. Though not binding, we may look to Texas decisions as persuasive authority in construing the OCPA. See id.

4.   According to 12 O.S. § 2056(C), a defendant moving for summary judgment will prevail “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact” and the defendant “is entitled to judgment as a matter of law.” On a motion for summary judgment, if Defendant raises lack of evidentiary support for the essential elements of Plaintiff's claims, and Plaintiff cannot make a sufficient evidentiary showing, Defendant would be entitled to summary judgment.

JETT, J.:

CONCUR: ROWE, C.J., KUEHN, V.C.J., WINCHESTER, EDMONDSON, COMBS, GURICH and JETT, JJ. CONCUR IN RESULT: KANE, J. NOT PRESENT: DARBY, J.