*1 42 ap- interlocutory injunction is May § 993(3).
pealable by right. O.S. 1981 to com- may not be heard here
Marshall extraordinary use of
plain it
process.
Third, against law erects barrier upon adjudicative de-
successive attacks Principles to be void.
cision that is claimed jurisdictional judicata apply to a con-
of res
troversy they same force as do to with the
other Weaver issues Mfg. Co., dispute. 582 F.2d [1980] White v. and Eaton v. White, Cir.
[10th 1978]. presently prudent No assessment can — skimpy paperwork be- — Bray’s failure to fore us of the effect
appeal from the Commission’s refusal to
vacate No. 208017 have Order prosecution injunc- of the district court
his prohibit Marshall seeks
tion suit which
here. deny appli-
I would therefore Marshall’s original jurisdiction.
cation to assume
deciding jurisdictional contest the dis- from, entirely
trict free court should be
unhampered by, premature and hence guidance.
apt-to-be-improvident IRWIN, J.,
I am authorized to state that my views.
concurs K. and Linda
Warren MITCHELL C. Mitchell, Appellees, COMPANY, CREDIT
FORD MOTOR Recovery and Able Auto Appellants.
Company,
No. 57267.
Supreme Court of Oklahoma.
April
Rehearing Denied June
$6,500.00
accepted
each. The creditor
installment on the first
initial annual
trac-
approximately
days
after it was due.
tor
payment
Apparently unaware
on the
second tractor had been received two
earlier,
repos-
creditor elected to
weeks
*3
engaged
second tractor.
It
for
sess the
Recovery
purpose
Auto
Able
[Recover-
the
tractor could not be
When
second
er].
found,
days
after the debtor
some
it,
the
payment on
the creditor instructed
repossess the first
tractor.
recoverer to
repossession
The creditor did effect
of the
it
two
first
tractor and then returned
later.
weeks
brought
conversion,
The
suit for
debtor
alleging
wrongfully
had
the tractor
been
Goodman,
Dunlevy,
Jim K.
Crowe &
repossessed when he was not in default.
Atkinson,
City, and Jack L.
Law-
Oklahoma
separate
In a
cause of action the debtor
ton,
appellants.
for
sought
extinguishing
security
the
a decree
Nelson, Park, Nelson, Caywood
M.
John
in
interest in that tractor. The verdict was
Park, Chickasha,
appellees.
&
for
damages
favor of the debtor for actual
of
$60,-
punitive damages
and for
$843.74
ALA,
OP
Justice:
Judgment
rendered on the
000.00.
was
security
verdict and the creditor’s
interest
dispositive
The
issue on certiorari
repossessed
in
extin-
tractor was
supports
the evidence
an award of
whether
guished.
Appeals
affirmed
Court
a se-
actual and
where
opinion.
by summary
Because the case
repossessed
collateral in the
cured
appeared
in-depth
to merit an
examination
in
erroneous belief that
the debtor was
pressed
error
into the claims of
for
question in the
default.1 We answer this
review,
granted
joint
certiorari on the
we
affirmative.
petition of the creditor and recoverer.
time
separate
transactions a short
pur-
of the Uniform
apart Mr. and Mrs. Mitchell
Section 9-503
Com
[debtor]
party
credit. The
allows a secured
to use
chased two farm tractors on
mercial Code
self-help
repossession
Company
ac-
in the
of collateral
Ford Motor Credit
[creditor]
in default.3 A secured
quired the installment contracts on these when the debtor is
agreement provided
party
provisions
has invoked the
vehicles.2 Each
who
§ 1-208,
approximately
op-
12A
which afford an
four annual installments of
O.S.1981
insecure,
portion
Property
right
Seller shall have the
1. We must decline to review that
extinguished
judgment
Ford
court’s
which
trial
to declare all amounts due or to become due
personalty.
Company's
Credit
lien on the
immediately
payable
Motor
due and
hereunder to be
petition
it-
for certiorari does not address
and Seller shall have all the
and remedies
peti-
self to that error.
Issues not raised in
Party
of a Secured
under the Uniform Commer-
given
tion for writ of certiorari will not be
Code, including
right
repossess
cial
Wade, Okl.,
Johnson v.
consideration.
Property
wherever the same
be found with
[1982],
right
entry
free
...”
retail installment contract contains the
2. The
provides
pertinent
in
§
3. 12A O.S.1981
following paragraph:
part:
Buyer
any payment,
"In the event
defaults in
or
agreed
party
has on
"Unless otherwise
secured
comply
any
provisions here-
fails to
with
right
possession
default the
to take
collat-
of,
Property
... or the Seller deems the
in
party may
taking possession
eral. In
a secured
confiscation,
danger of misuse or
or Seller oth-
judicial process
proceed without
...”
reasonably
erwise
deems the indebtedness
§ 61, provides that the
when
23 O.S.1981
meas-
the debt at will
to accelerate
tion
arise,
damages for a tort of conversion is
ure of
must show
proper conditions
compensate
in-
the amount which will
not exercised arbitrar-
statutory power was
jured party
proximate-
for all the detriment
good-faith
belief
ily
irresponsibly but
loss,
ly
im-
whether it could have
payment was
caused
prospect of
anticipated or not. The debtor was
been
paired.4
just
hence not limited to
a difference
claimed at trial that
The creditor
of the tractor before its conversion
value
repossess
made in an
was
its decision
property,
return.
and after
When
the debtor
good-faith
belief that
honest
and then re-
which has been converted
default, (2)
attempting to
was
value,
stored, has a distinct
one measure of
in violation of the con
the collateral
sell
use value for
is the reasonable
the state
had moved from
tract and
wrongful
deter-
period
detention as
notifying the creditor. The debt-
without
*4
by the fair market rental value.6
mined
competent proof show
claim rested on
or’s
argues punitive damages
The creditor
default, (2)
(1)
in
ing
account was not
improperly awarded because the ac-
were
approved
had
the sale
the creditor
representatives
its
were free from
tions of
(3) the
party
to a third
and
first tractor
fraud, oppression malice. In the
or
alter-
cognizant of the
new
debtor’s
creditor
native,
punitive damages
it asserts that the
conflicting evidence has
address. Where
award was excessive.7
jury
is
presented to the
and its verdict
been
evidence, it will
by competent
supported
damages
Punitive
are allowable
appeal.5
not be disturbed on
there
evidence of reckless and wan
when
of another’s
complains that
ton
The creditor
may
intent
inf
of the cost of which malice and evil
be
court admitted evidence
trial
statute,
proof
by
erred.8 The
adduced
the debtor
renting
tractor. The
a substitute
ordinarily
provide:
evidence.
it is
demurrer to the
While
§
terms of 12A O.S.1981 1-208
4. jury
inadmissible exhibits in the
error to allow
room,
party
providing
or his succes-
“A term
that one
prejudiced
the creditor was not here
per-
may
payment
accelerate
or
sor in interest
thereby
judge
since the trial
limited actual dam-
require
additional col-
or
collateral or
formance
expenses
ages to the cost of rental and
incurred
inse-
‘at will’ or 'when he deems
lateral
himself
recovering the tractor.
import
in words of similar
shall
cure’ or
power
that he shall have
to
construed to mean
good
only
believes that the
so
he in
the U.C.C. does not
§
do
prospect
7. 23 O.S.1981 9. While
if
faith
payment
performance
damages,
or
is im-
explicitly provide
punitive
§
establishing
good
lack of
paired.
burden of
damages
permits
punitive
based
party against
power
whom the
faith is on the
finding
law. After a
that there was a
non-Code
[Emphasis
exercised."
conversion,
added].
has been
may
be awarded
Quinn’s
Commercial Code
See also
Uniform
existing statutory and case law. See
under
Commentary
Digest,
and Law
1983 Cumulative
Co., Yale,
v. First Nat'l Bank & Trust
Davidson
2,
pp.
Supp.
and
No.
at
S1-57-59
§
208[A][1]
Okl.,
1259,
(20 U.S.C.Rep.
1 -
P.2d
1261 [1977]
609
pp.
at
S9-317-321.
§ 9-503[A][7][c]
562).
Okl.,
700,
Ittner,
418 P.2d
701
5. Vickers v.
Brown, Okl.,
67,
Sunray DX Oil Co.
477 P.2d
v.
good-faith belief in default
A creditor’s
[1966].
[1970];
McCoy,
Corporation v.
70-71
Okl.,
Oil
Gulf
judged by
objective
insecurity
an
will be
or
948,
[1966];
P.2d
Dilworth v. Forti
416
952
standard, based on commercial reasonableness.
38,
er,
[1965];
Neun
405 P.2d
45
Fuller v.
Gilmore, Security
in Personal
II
Interests
See
Property,
317,
[1956];
dorf,
320
see also
293
43.4,
[1965];
U.Chi.L.R.
30
§
Few,
Mining Company
&
Garland Coal
666, 672 [1962-63].
785,
Cir.1959]; Wootan v.
F.2d
790-791 [10th
Shaw,
205 Okl.
Tecumseh, 32
Thomas v. First Nat’l Bank
addition,
punitive
The misconduct for which
[1912], In
Okl.
121 P.
23 O.S.1981
be exacted is characterized
objects
the fact that
inadmissible
creditor
to
"op
culpability of
go
9 in terms of defendant's
§
pression,
crop
to
to the
exhibits on
loss were allowed
malice,
presumed
judge
fraud or
actual
jury
during
The trial
room
deliberation.
construing
[emphasis
speculative
...”
Case law
crop
added].
the evidence
loss too
found
op-
language recognizes
that malicious
recovery
creditor’s
to warrant
and sustained the
show,
(1)
among
things:
other
lowed were for less than the amount of
did tend to
punitive damages.10
arriving
default; (2)
at
had
the debtor
no note was
damages required
amount
deter oth-
to determine the bal-
contacted the creditor
jury may
and
punish,
properly
ers
because he wanted to
*5
agency
allegations
relationship. The
were
very
effected
repossession
that
be
of the
recoverer,
request
that the
at the
equipment
constituted
for
that
collateral
creditor,
possession
the
took
of
tractor
obligations
jury
not then in
The
default.
knowledge
without the
or consent of the
presented
could conclude from the evidence
undisputed
debtor.
facts
The
showed
only
that
the creditor not
indifferent to
trying
that in the course of
to locate the
actions,
consequences
the
of its
also
but
tractor,
employees
the recoverer’s
process
that
flawed work flow
demon
telephone
two
calls to the creditor—one to
disregard
a reckless
for the
strated
ascertain
procedure
locating
the
for
the
long
span during
of its
time
debtors.
serial
on the tractor and
number
the other
which the creditor was shown to have re
to inform the
creditor
tractor it
ignorant
mained
of salient facts with re
available,
was seeking was not
and
that
spect
repossession
suggestive
to its
also is
creditor,
receiving
the
this informa
extraordinary degree
negligence
of
of
that
tion, knowingly directed the recoverer to
easily
regarded
gross.9
which could
as
repossess
wrong
tractor.
In
opin
argues
ion,
The creditor further
these
on
facts are relevant
of
issue
pro
out of
agency
is
relationship
between
portion
injury
inflicted.
cannot
to
We
and
relied upon
recoverer. Where facts
agree.
necessarily subject
A
is not
agency
verdict
establish the existence of the
are
undisputed
conflicting
because actual
al-
reversal
and no
inferences
9.In
supra;
Mining Company v.
covery
pressive
indifference to
even
reckless
held that
143,
ing could be inferences facts, instruction was at
undisputed argument harmless error.
most is that each
contractor and reeoverer damages for punitive
have been assessed if the recover- the other. Even
the acts of independent contrac- in fact an
er had been
tor, be of no complained error of would the two defend- This is so because
avail. In the Matter of the ESTATE OF Sam regarded joint tortfeasors would be as ants ZARROW, Deceased. severally and liable for jointly and hence damages.13 all RENBERG, Renberg, George Donald and Appeals opinion is with- The Court of Renberg Kaplan, Sherri Co-Executors judgment trial court’s drawn and the Dorothy Zarrow Ren of the Estate of affirmed. berg, Appellants, v. LAVENDER, SIMMS, V.C.J., DOO-
LIN, HARGRAVE, and KAU- WILSON ZARROW, Appellee. Jack GER, JJ., concur. No. 57999. HODGES, J.,
BARNES, C.J., and concur part. part and dissent Supreme of Oklahoma. Court Justice, HODGES, dissenting part: May majority part I dissent to that puni- the award of opinion which affirms Sept. As Corrected opinion damages. my the award tive *6 $60,000 and a remittitur should is excessive required. case where a defendant
This is not a property of
intentionally confiscated anoth- Here, plain- provocation.
er without their misfortune.
tiffs were the creators of obligation, their secured
They defaulted on and anxieties
thereby creating insecurities
which, reac- unfortunately, caused an over pro- in an effort to
tion the defendants defendants’ ad- collateral. While
tect their inefficiency may justify the
ministrative and wanton conclusion of reckless
jury’s rights, the de- plaintiffs’ rectify wrong attempt to their
fendants did weeks after
by returning the tractor two facts, an this state of
repossession. Given damages does for actual $843.71 $60,- punitive award of fully justify not Merritt, Corp., Company v. 13. Cities Service Oil 12. Keel v. Titan Construction 683 [1958]. ance notes of both into take account the financial condition of auction; (3) sell at the second the tractors the defendant.11 The award—for much sold at auction with the credi- tractor was ($400,000)— sought less than the amount purchase; acceptance tor’s was far from excessive when considered mailing the correct ad- possessed light of the facts adduced and of the credi- creditor, and dress of the debtor tor’s net worth. disclosed facts, though of all the salient never- aware repos- instructed the recoverer to theless Lastly, complains the creditor did sess a tractor it knew not stand as erroneously that the trial court instructed thought mistakenly collateral for the note jury relationship principal-agent that a to be in default. and existed between the creditor recoverer as a matter of law. This instruction is This, in the and other evidence challenged the recoverer is assert because record, internal indicates creditor’s independent ed to have contractor. been operations so inefficient that there were pleadings specifically While do not was both scant coordination and communi issue, state that this was an debtor met among employees. cation While some by alleging proving the burden facts payments in accepting on them were necessary to establish the existence contracts, busily others stallment directed