*1 appeal-related costs to recover is entitled
under section
VI. CONCLUSION we find that the district
122 Because motion denying plaintiff's erred in verdict, not address the we need
for directed judg- appeal. in this
other issues raised case court is reversed. The
ment of the trial trial with instructions for the
is remanded summary adjudication partial
court to enter liability plain- in favor of the
on the issue defendants, against for trial
tiff and judg- damages only, and to enter
the issue to include plaintiff for the which is
ment
appeal-related costs. OPINION
COURT OF CIVIL APPEALS
VACATED; TRIAL COURTS JUDG- REVERSED; REMANDED WITH
MENT
INSTRUCTIONS. SUMMERS, HARGRAVE, C.J., HODGES, WATT,BOUDREAU,
V.C.J., JJ.-
concur. LAVENDER, OPALA,
WINCHESTER, JJ.-dissent. KAUGER, J.-recused.
Jerry Patterson Pest dba Control, Plaintiff/Appellant,
and Weed BEALL, and Bernice
Lonnie
Defendants/Appellees. 92,399.
No.
Supreme Court of Oklahoma.
Nov.
$41 *3 Firm, LaMunyon, Justin Faulkner Law OK, Enid, Appellant. Enid, Singer, OK, Appellees.
Steven D.
BOUDREAU, Justice:
presented
11 We are
with two issues
First,
summary judgment
on certiorari.
motions
Rule
under
18 of the Rules for Dis
Oklahoma,
trict Courts of
12 0.8.
ch.
(Rule
13),
app.
pur
inconsistent with the
pose
Act,
of the Small Claims Procedure
seq.-namely,
O.S. 1751et
the efficient and
prompt disposition of small claims?1 We
may review
alleged
claims which relate to
deprivations
process
despite
of due
lawof
preserve
failure to
error.
v.
Bottles State ex
rel. Oklahoma State Bd. Medical Licen
59, ¶4,
Supervision,
sure and
471, 472;
P.2d
Pettit v. American Nat'l
Bank,
(Okla.1982).
649 P.2d
Sec
ond,
conduct,
appraiser's alleged
does the
if
Certiorari,
Appellant
Proposition
first raised this issue in the trial
Petition for
he raised it in
Supplemental
VI
of his
Brief on certiorari. He
court on
in his brief in
May
opposition
granting
asserted that
the trial
court erred
to Defendants'
renewed motion for
summary judgment
Appellees.
argued
judgment.
being deprived
to
He
contended
He
he was
deprived
opportunity
the trial court
him of the
procedural
process by being subject
due
prove
case when the trial court used "the
his
availability
discovery.
Rule 13 without
summary judgment
aberration of
in small claims
Accordingly,
argued,
he
the trial court should not
discovery.
cases" without the benefit of
questions
be allowed to determine
of fact.
In his
alleged
Error,
Petition in
he
the trial court erred
alleged
We
review claims which relate to
finding
Appellees
were entitled to sum-
despite
derivations of due
of law
a failure
mary judgment.
Appeals
The Court of Civil
ad-
preserve
error.
ex rel.
Bottles
State
Okla
opinion
dressed his
in the
under re-
contention
Supervi
homa State Bd. Medical
Licensure
view,
sion,
471, 472;
¶4
summary judgment
and held that
motions
proven, constitute unfair trade under the Okla or an Patterson. Act, 15 O.S8.
homa
Protection
Consumer
[
permitted the
5 The trial court
(1991), §
seq.?
T51 et
In
summary judgment motions.
a writ-
file
order
the trial court addressed all re-
ten
{2
summary judgment mo-
We hold that
maining claims and counterclaims.
re-
With
purpose of the
are inconsistent with the
tions
counterclaims,
spect to
Beall's
the trial
Mrs.
and that
Act
Small Claims Procedure
specific
court concluded that the remedies
conduct,
if
appraiser's
alleged
real estate
performance
quiet
title are outside the
practice.
an unfair trade
proven, constitutes
Act.
seope of the Small Claims Procedure
proceed-
further
reverse and remand for
We
granted summary judg-
The trial court then
opinion.
ings consistent with this
against Mrs. Beall on her counterclaim
ment
*4
not
for breach of contract. Mrs. Beall did
I
rulings.
appeal from these adverse
claims,
respect
6 With
to Mr. Patterson's
FACTS
parties
trial court found the
settled Mr.
Patterson,
Jerry
Pest
13
dba Patterson
Patterson's
breach of contract claim when
(Mr. Patterson),
per-
and Weed Control
paid
Mrs. Beall
Mr. Patterson
The
$105.00.
inspection
a termite
for Lonnie and
formed
granted summary judgment
trial court then
Beall).
(collectively, Mrs.
Mr.
Bernice Beall
against Mr. Patterson on his claim that Mrs.
Patterson billed Mrs. Beall
She
$105.00.
Beall violated the Oklahoma Consumer Pro
because, according
pay
to
the bill
to
refused
Act. The trial court found that Mrs.
tection
her,
perform
him
a
she had not asked
to
alleged
deceptive
conduct was not
and
Beall's
inspection
requested
termite
but rather had
did not constitute a trade
under the
merely
dispute
a free
escalat-
estimate.
Consumer Protection Act. Mr.
Oklahoma
prop-
against
ed. He
lien
her
filed $105.00
appealed.2
Patterson
erty.
performed
She then asserted she had
him,
appraisal
for
a real estate
demanded
II
payment
appraisal
and
for
$115.00
OF REVIEW
STANDARD
attempted
file a
lien
his
to
$115.00
requested
property.
having
an
He denied
¶7
legal
We review the trial court's
appraisal
performed
had
an
and denied she
Brown,
rulings
Manley
de novo.
v.
appraisal
complained
him.
for
He
about her
79,
requires
$48 procedure special vides a for certain actions docket. Lee Co., Pruitt, Wayne Inc. v. APP CIV P.2d 1374. The Act money sought where amount be recovered does not exceed four thousand five requires that the motion to transfer be filed given and defendant ($4,500.00).3 be notice of the motion provides hundred dollars forty-eight prior at least hours to the trial. procedure "to informal facilitate access (1991), § parties simple, inexpensive speedy granting 0.8. 1757. The Scott, justice." discretionary v. motion is Johnson OK 702 with the trial court. Id. policy public P.2d 59. The unmistakable
goal provide of the Act is to small claims [ parties 12 The Act does not allow new courts, "people's uncomplicated forums as joined prohibits it other superior the formal demands of courts." intervening (1991), in the action. 12 O.S8. Co., Thayer Phillips Petroleum 1980 OK § 1760. 1041, 1044.4 613P.2d ¶13 requires The Act if either promoting In T9 the interest party jury notify desires must prompt disposition and efficient of small writing the court clerk in at least two work actions, the Act allows no formal ing days delay before the trial so as not to pleadings other than a small claims affidavit (1991), § the trial Regard 0.8. some cireumstances an answer. less of jury the whether the trial is or non- requires 0.8. 1758.5 The Act jury, the "rules of evidence are relaxed." sixty days the trial be set not more than nor *5 Co., Allen, Mgmt. Prudential Inc. v. days less than ten from the commencement 122, 1365, 1366; Littleton, Black v. (2000),§ the action. 12 0.8. 1756.6 If the 1975OK APP 532 CIV P.2d 487. The defendant desires to assert a counterclaim or hearing disposition and of a small claims answer, requires setoff verified Act the object action is "informal with the sole the defendant to file the answer with justice dispensing speedy par between seventy-two court clerk not later than hours (1991),§ ties." 12 O.S. 1761. prior delay to the trial as so not the trial. to (1991),§ 12 0.8. 1758. B ¶ 10 prohibits depositions, The Act all in terrogatories discovery proce all other and Summary Judgment Motions for except judgment dures after in aid of execu under Rule 18 (1991),§ tion. 12 0.8. 1760. ¶14 summary judgment Motions for pretrial governed by The Act mentions one Rule 18 of the Rules for District (1991), only. Oklahoma, (1991), § motion O.S. 1757. It al Courts of O.S. ch. lows the defendant to file a app. judgment motion to trans The standard for a regular specified fer the small action claims to the civil in Rule 18 there is no sub speci- 3. Because the Small Claims Procedure Act Co., v. Petroleum Phillips particular procedure fies a for small claims ac- 1041, 1042. Pleading gov- tions, the Oklahoma Code does not (1991), § ern such 12 O.S. actions. 2001. necessary only 5. An answer is when a defendant power The small claims division has to hear wishes to state new mater that constitutes a $4,500.00 less, for or exclusive of costs (1991), § or setoff. 12 O.S. counterclaim fees, (1) attorney's following in the actions: recovery money actions for the based on con- case, dispute 6. At the time of in this small tort, claims, including subrogation tract or but required thirty claims trial was to be set within slander; (2) excluding libel and for re- actions days after commencement of the action. This (3) plevin personal property; interpleader enlarged sixty days by time was to amendment (1991), 1751(A). § actions. 12 O.S. Small See 2000 Sess. effective June Okla. brought claims actions not be a collec- ("The appearance Laws ch. 380 3 date for claim, agency assignee except tion or an of a provider may bring assigned provided a health care an of the defendant as the order ad- in third-party claim an or insurer adminis- dressed on the affidavit shall not be more than 1751(B). (60) (10) trator. 12 O.S. sixty days days nor less ten than order."). the date of the simplified procedure 4. One of the reasons for the necessity lawyer. Thayer is to eliminate a discovery response produced fact have been in to controversy material stantial requests. Id. discovery by the affidavits and as shown Hamilton materials attached to the motion. 18(b) party opposing 116 Rule allows Allen, 697.7 1998OK 852 P.2d days opportunity, fifteen after ser- within motion, upon moving of the to serve vice 13(a) a party allows a to serve 115 Rule party and file with the court clerk written anytime summary judgment after motion for response in to the motion. The statement action, filing except if the written response must include a concise trial the must action has been set for motion of the material facts as to which statement twenty days before the be served at least opposing party genu- contends there is a accompanied trial date. The motion must be denying ine issue and the reasons by a concise written statement of the materi- statement must set motion. Id. The written no al facts as to which the movant contends specific material fact forth and number each why genuine explain issue exists and must controversy and must that is claimed to be summary judgment the movant believes specific pages include references to the granted. The statement must re- should paragraphs or lines in the attached affidavits evidentiary upon fer to materials which the discovery upon op- which the materials copies of these materials movant relies and posing party relies. Id. attached to the statement. Rule must be 18(d) 13(a). affidavits, Further, party exception of these Rule allows With the summary judgment always opposing a motion for materials almost take the form of by submitting discovery responses excerpts a continuance an affidavit such as of de- seek explaining why present positions, interrogatories and to he or she cannot answers admissions, justify requests opposition to the and documents that facts essential provides pertinent part: containing ment affidavits and other materials Rule 13 evidence, but facts that would be admissible party may a. A move for in his rely allegations the adverse cannot ground depositions, favor on the that the admis- statement, pleading. denials his In the *6 pleadings, stipulations, to sions the answers party parties adverse or shall set forth and num- admissions, interrogatories requests and to for specific ber each material fact which is claimed affidavits, and on filed with his file, exhibits controversy be in reference shall be made to and subsequently or with leave of court motion show pages, paragraphs, to the lines of the and/or controversy any that there is no substantial as to interrogato- admissions, answers to depositions, material fact. affidavits, ries and admissions, to for requests by accompanied a The motion shall be concise by exhibits and other materials whether filed the written statement of the material facts as to moving by party party, he or the adverse and genuine which the movant contends no issue portions attach to the statement the relied shall why summary judgment exists and the reasons upon. All material set forth in the state- facts granted. be should supported by ment of the movant which are shall to Reference be made in the statement admissible evidence shall be deemed admitted pages, deposi- paragraphs the lines of the and/or purpose judgment for the unless interrogatories tions, admissions, answers to and by specifically the the controverted statement of admissions, affidavits, to for exhibits requests supported by party adverse which is admissible moving and other materials whether filed judgment granted, evidence. If the is motion party party, copy or the adverse and a of the party parties opposing or the motion cannot material relied on shall be attached to the state- appeal rely any on fact or material that not is ment. to or included in the statement in order referred may any The motion be served at time after the controversy to show that a substantial exists. filing action, that, of the if the action has except trial, been set the motion shall be served appear it of a days d. Should from an affidavit twenty least before the trial date. mo- The party opposing the that he cannot party motion tion shall be served on the adverse or present justify parties facts essential to his and reasons stated filed with the court clerk. opposition, may deny party motion for b. If the or adverse wish motion, may permit oppose they granting or order a continuance to shall moving depositions party serve or to be and file with the court affidavits to obtained days discovery may or had or make such clerk within fifteen after service of the mo- taken to be just. tion a concise written statement of the material other order as is they genuine facts as he to which or contend denying issue for District Courts of OkKla- exists and the reasons for the mo- Rule Rules party tion. The shall attach to the adverse state- homa, 12 O.S. ch. app.
$45 responses, a continu- or the effect filing motion. The trial court order of not party response non-lawyer permit opposing litigant to obtain at all. faced ance discovery. summary judgment additional with a motion for affidavits or to conduct is far likely
more to need the services of an attor- C ney.
Analysis
Third,
the Small Claims Procedure
expressly prohibits discovery.
Act
In con
{18
primary goal
"The
of statuto
trast, summary judgment motions almost al
ry
legislative
construction is to determine
ways require
discovery
the use of
materials.8
intent. That intent is to be ascertained from
light
general purpose
the statute
its
Fourth,
the Act relaxes
object.
presumed
Legislature
contrast,
In
rules
evidence.
Rule 13 does
expressed its intent in a statute
has
not allow the rules of evidence to be relaxed.
expressed."
it intended what is so
TXO Pro
In order for material facts that are not con
Comm'n,
Corp.
Corp.
duction
v. Oklahoma
troverted
the adverse
to be deemed
1992OK 829 P.2d
968-69.
purpose
summary judg
admitted for the
{19
In our view motions for
ment,
supported
those material facts must be
judgment under Rule 13 are inconsistent
13(b).
by admissible evidence. Rule
purpose
with the intent and
of the Small
Claims Procedure Act-the
efficient and
Fifth,
"expressio
the maxim
uni-
prompt disposition of claims.
alterius,"
us est exelusio
that the mention of
First,
application
of Rule 18's
thing
impliedly
one
in a statute
excludes
timing requirements
to small claims actions
thing,
legisla
another
used
determine
very purpose
would encumber the
of the act.
Corporation
tive intent.
v. State ex rel.
PSO
timing requirements
designed
The Act's
Commission,
speed
efficiency in
with
mind. The Act
Legislature expressly
pre
allowed one
early
allows a small
trial to
be set as
trial motion
the Small Claims Procedure
days
as ten
after commencement of the ac- Act-a motion to transfer
the small claims
Any
setting
days
tion.
trial
between 10-20
action to another docket of the district court.
after commencement of the action
ei-
would
Legislature
declined to
allow for
(since
preclude
ther
Rule 183motions
a Rule
filing
pretrial
other
From
motions.
days prior
13 motion must be filed at least 20
Legislature's provision
only
for one and
trial)
require
would
a continuance of the
pretrial
Legisla
one
motion we conclude the
Any
setting
thirty
trial
days
trial.
within
ture did not
intend to allow motions for
*7
after commencement of the action would un-
summary judgment
in small claims actions.
instances,
doubtedly,
require
in most
a
also
Sixth,
either
who
access
desires
continuance.
panoply
pretrial
to the full
has a
motions
Second,
purpose
of the Act is to
procedures
method to avoid the limited
in the
simple, uncomplicated
"people's
create
a
plaintiff may simply
A
small claims division.
procedures
court" in
which
are informal
choose not to sue under the Act in the first
litigants
lawyers.
and the
do not need to hire
instance. A defendant sued
the Act
under
contrast,
procedures
In
of Rule 18 are
move,
(1991),
pursuant
to 12 O.S.
complex.
more technical and
Few non-law-
§
regular
to transfer
the action to the
yer litigants
in
dispute
embroiled
a
within
civil docket.
jurisdictional
limitations of the small
conclusion,
likely
are
to be
In
division
aware of Rule
we hold that motions
likely
they
13. It is even less
that
would summary judgment
under Rule 18 are
timing requirements,
purpose
understand its
its suffi-
inconsistent with the
of the Small
clency requirements
respect
with
to motions Claims Procedure Act-the
efficient and
recognize
occasionally
competing
8. We
that
a
affidavits.
response may rely only
motion and
Nevertheless, most of the state con
disposition
are not
action.
prompt
of claims-and
Oklahoma's,
applicable
acts,
claims actions.
including
small
protection
sumer
Center,
Law
National Consumer
do. See
IV
Practices,
Deceptive
and
Acts and
Unfair
(dth ed.1997) (includes
app. A
citations
THE OKLAHOMA CONSUMER
pro
of the states' consumer
ACT
and summaries
PROTECTION
acts).
private right
action in
tection
(1991),
at
the OCPA is found
15 O.S.
Introduction
statutory language,
§
761.1.10Based
1960's,
began
1127 In the
individual states
private
a
the four elements of
consumer's
protection
designed
laws
to enact consumer
(1)
under
the OCPA are:
that
action
supplement
5 of the
parallel and
Section
practice
engaged in an unlawful
as
defendant
Act, 15 U.S.C.
Federal Trade Commission
(2)
(1991),
758;
§
at 15
that the
defined
0.8.
45(a)(1),
adopted
pro
Congress
§
which
challenged practice occurred
the course of
practices.
against unfair trade
tect citizens
(8)
business;
plaintiff,
that the
as
defendant's
Lipson,
Leaffer and
Consumer Actions
Bee
fact;
consumer,
injury in
a
suffered an
Prac
Against
Deceptive
Acts or
Unfair
(4)
challenged practice
caused the
that
The Private
Federal Trade
tices
Uses of
Jurisprudence, 48 Geo. Wash.
injury.
plaintiff's
Commission
(1980).
laws, gener
L.Rev. 521
These state
proved
that
1 31 The first element to be
ally
protection acts
referred to as consumer
prac-
engaged
defendant
an unlawful
deceptive
practices
trade
or as unfair and
practices
tice under
OCPA. Unlawful
acts,
suggested
from
derived
various forms
(1)-(15)
§
identified in
758. Subsections
to the states
the Federal Trade Commis
(FTC)
specific
§
a number of
acts to be
753 declare
sion
and the Commissioners on Uni
form
Laws.9
(16)-(19)
State
practices.
unlawful
Subsections
(21)-(23)
§of
refer
to other
Oklahoma
%28 Oklahoma's Consumer Protec
violations of these stat-
statutes and declare
(OCPA)
tion Act
is codified
15 0.8.
Finally,
practices.
perti-
unlawful
utes to be
seq.
§
is remedial
751 et
Because
OCPA
(20)
case,
a
nent to the instant
subsection
liberally
in nature it is to be
construed to
provision
catchall
that declares unlawful the
See,
underlying purpose.
eg.,
effectuate its
deceptive
"unfair or
trade
commission any
Corp.,
Holmes v. LG Marion
258 Va.
B only right aggrieved of action to "an consum- Right Private Action under aggrieved requires er." It that an consumer *8 the Oklahoma Consumer damages as a result of the defen- sustain Protection Act practice. dant's unlawful The fourth ele- causation, ment, also derives 180 The Federal Trade Commission T6L1(A). requires provide private right plain- Act does not for a This subsection Act, In 1970 the alternative drafts an Uniform Consumer Sales Practices 7A FTC offered (1978). Unfair Trade Practices and Consumer Protection U.L.A. 1 Governments, Suggest- Law. See Council of State (1970). Legislation ed State Two of the Legislature C4-C5 enacted the OCPA 10. The Oklahoma adopted expressly uniform model acts that have been in a in 1972 and amended it in 1988 to variety Deceptive provide private right aggrieved of forms are The Uniform a of action to Okla.Sess.Laws, Act, ch. Trade U.L.A. 35 and the consumers. 1988 Practices 7A
847 (12) practice" "Unfair trade means prove damages or her tiff to that his were practice. practice which public the defendant's unlawful offends established caused policy practice immoral, ifor unethi- minority have states cal, oppressive, unserupulous or substan- adopted alleged a fifth element-that tially injurious to consumers. practice public unlawful affects the interest. (12). (1991),§ 15 0.8. While this statu- Walter, See, .g. e Hall v. tory practice" definition of "unlawful trade (Colo.1998); Surfacing v. Lusterstone Nelson unique. Many broad it is not state consumer Co., (Neb. Neb. N.W.2d protection specifically statutes do not define 2000); Stables, Hangman Ridge Training what an practice constitutes unfair trade but Co., Inc. v. Title Ins. 105 Wash.2d Safeco provide protection instead broad and leave it in These states to the specific courts determine whether public ferred interest element from cer qualifies. conduct generally, See M. Donald language respective tain used in their con Annotation, Zupanee, Practices Forbidden protection sumer acts that is not used Deceptive State Trade Practices and Con- Thus, require OCPA. we decline to as an Acts, sumer Protection 89 ALRB3d 449 private element of a claim that the OCPA (1979 Supp.2000). & challenged public conduct affect the interes alleged 135 Whether conduct consti t.11 an practice tutes unfair trade under question OCPA is a fact the trial court C must determine on a case case basis. case, unique Under the cireumstances of this Conduct, Proven, Does Mrs. Beall's if difficulty concluding we have no that if Mrs. Constitute Trade Unfair payment Beall demanded from Mr. Patterson Practice? appraisal for a real estate that was neither requested performed, 1383 The trial court determined nor and filed or at tempted Mr. Patterson failed to establish the first a to file false lien Mr. Pat private right property, element of his of action under terson's her conduct constituted an practice. practice the OCPA-an unlawful unfair phrase trial trade as that is de conduct, court concluded that Mrs. Beall's fined in the OCPA. proven, even if did not violate the OCPA $36 Accordingly, we vacate
because the conduct did not constitute an Appeals opinion, Court Civil reverse the practice unfair trade under the OCPA. We | summary judgment against trial court's Mr. disagree.12 claim, Patterson on his OCPA and remand 134 The OCPA defines an unfair trade proceedings the case for further consistent practice as follows: opinion.13 with this alleged deceptive capacity actions have the contrast, In General is not al- Attorney proceed lowed to under the OCPA unless he unique deceive the consumer. Under the cir- investigation challenged she believes that an of a case, cumstances this since Mr. Patterson practice public would be in the interest. O.S. clearly requested knew he had not a real estate (1991), § 757. Beall, appraisal from Mrs. the trial correct ly determined Mrs. Beall's actions did not have 12. The trial court also found that Mrs. Beall's capacity to deceive Mr. Patterson. deceptive conduct did not constitute a trade practice. agree part We with this of the trial analysis only 13. The under this section addresses ruling. deceptive court's Section 752 a defines " the first element of Mr. Patterson's claim. On practice Deceptive trade as follows: trade remand, the trial court will determine whether means omission or practice' misrepresentation, second, Mr. Patterson can establish the third and practice other that has deceived or could reason- private fourth elements of his cause of action ably expected person to deceive or mislead a there person. Further, under the OCPA. are two first to the detriment of that Such *9 by before, impression issues raised which the may during occur or after a consumer trial court did address. Since we will not act may not transaction is entered into and be written or (1991), (11). any statutory § untried issue as a tribunal of first in- 15 0.8. oral." speak necessity definition not does to the of an stance, Leavitt, Toxic Waste Inc. v. Impact Group, deceive, intent but it does that we defer to the require WITH THIS OPIN- INGS CONSISTENT
V ION. THE AP- OF AWARD OF VACATION
PELLATE
AND
ATTORNEY'S FEES
KAUGER,
HODGES, LAVENDER,
BEALL
TO MRS.
COSTS
JJ., concur;
WATT, WINCHESTER,
HARGRAVE,
SUMMERS, C.J.,
V.C.J.,
{37
Appeals
awarded
The Court Civil
OPALA,
part;
in
attorney's
part
and dissent
appeal-related
fees
concur
Mrs. Beall her
J.,
opinion.
from the Court's
of Civil
dissents
and costs. Since we vacate
Court
Appeals'
the trial éourt's
decision
reverse
OPALA, J., dissenting from the court's
ap-
judgment, we also vacate the award
opinion.
peal-related
attorney's
fees
costs.
Thompson
Independent
School Dist. No.
today T1 The court vacates
Court
judgment entered in a small claim as missible the context of the Small Claims VI Act1 and remands the cause to Procedure SUMMARY whether the defendants' conduct determine practice unfair constitutes an trade under {38 that We hold motions Protection Act Oklahoma Consumer are inconsistent with the intent [OCPA]2 purpose Claims Oklahoma Small and, therefore, Procedure Act T2 I not recede from the While do judgment motions cannot be filed or consid- join Ayperglo- disposition, I cannot court's its of the dis- ered the small claims division pronouncement ignores bal the much Mr. trict court. We further hold that if presented the record. marrower issues pre- Patterson's OCPA claimis not otherwise sponte question the invoked sua proves if he Mrs. Beall's conduct cluded and today's reversal and now answers- alleged, then Mrs. Beall's conduct consti- summary process whether can be fitted into tuted an unfair trade under legislatively procedure crafted scheme OCPA. litigation-is pure for small-claims exercise THE THE OPINION OF COURT OF produces supererogation3 no more VACATED; pausing to IS THE than obiter dictuni.4 Without CIVIL APPEALS APPEAL RELATED AWARD OF ATTOR- summary process may arbitrarily consider if VACATED; litigants, FEES AND IS be barred from a whole class of NEYVS COSTS THE TRIAL COURTS JUDGMENT IS today's lawyers pronouncement lures into a AND THE RE- REVERSED CAUSE IS security. false sense of This is so because MANDED FOR FURTHER PROCEED- stopped testing superfi short the court its following THirp Dictionary trial court to determine the issues on Wesster's New Internationat (1961). (a) alleged remand: whether Mrs. Beall's con- exempt duct from the OCPA under 15 O.S. 754(2), judicial provides § "[al The term "obiter dictum" means OCPA which delivering during comment made the course of apply regu- shall not transactions "actions or opinion, unnecessary that is to the [court] but one lated under laws administered ... ... prece- not decision in the case and therefore regulatory body acting authority or officer under (though persua- State;" (b) dential it be considered whether this Mr. Paiterson's Dictionary sive)." (7th ed.1999) Law Brack's claim is barred statute of frauds. added). (emphasis "Because precedent-issu- beyond ing stepped court has the bounds of its 0.$.1991 seq. § 1. 12 1751et authority speaks when it law not essential resolving parties' dispute, its courts successor 0.$.1991 seq. 2. 15 et nonbinding." are free to dismiss such talk as Cappalli, B. Tee American CommonLaw Richard (1997). "supererogation" "Dissenting page The term means "the act or Merson 2.18 at performing or an instance of more than judgments considered in order to sometimes required by majority." Rupert duty obligation clarify [or] ... more the statements of the Precepent Cross, necessary undertaking." complete than is In Encuse Law 90 *10 by analysis cial the of uni brought against minator] mandated norms a claim Lonnie symmetry by formity and as well as the [collectively and Bernice Beall called Beall or appraiser] notion of fundamental law's fairness that un for breach contract and for of 5, 46, Const.,5 § derlies Art. Ok. to be exam violation the pressed OCPA.6 Beall a coun of together ined with state and federal due (a) terclaim the exterminator (b) Equal contract, standards the Protection breach of "violation" of the (c) OCPA, (d) quiet specific perfor title and Today's of the Clause XIVth Amendment. summary-process blanket ban from small mance. Both sought summary rel myopically literal, simplistically Responding claims quests, to these the trial ief.7 utterly rigid and disposed parties' insensitive to the state what it called "dismissal" and directed each of and federal I constitutional commands. would, record, pay on this leave undisturbed the them to its own counsel fees.8 The law party-initiated clearly requires trial court's utilization of sum prius we treat the nisi summary judgment.9 dismissal as mary process timely whose use was not Appeals Court of Civil Only frontally affirmed. challenged the as unauthorized I small claims. Instead would reverse sum appealed. extermanator The latter seeks re mary judgment as flawed and lief certiorari. remand cause for first-instance determination wheth II (a) appraiser's er conduct lies dekors the purview agency-regulated OCPA's as an ac TODAY'S PRONOUNCEMENT IS HY- (b) tivity allegations the exterminator's PERGLOBAL AND TOTALLY DE- (of deceptive practices) and unfair trade TACHED FROM THE CON- support sufficient to a breach of the OCPA. THE OF RECORD T4 The court's absolute ban of
I
process from
litigation
small-claims
is over-
THE ANATOMY OF LITIGATION
beyond
broad.
present
extends
the issues
Jerry
Patterson
Patterson
ed
simply
record.10 This case
d/b/a
does not
[Patterson
Weed and Pest Control
or exier-
tender the issue
summary-judgment
whether
judgment procedure
§
must
used and the resul
5. For
5,
46,
terms of Art.
OkL Const.
see
ruling
note 35.
dispositive
tant
be considered
infra
0.$.1991
2012(B).
quest.
§
See
this
Supra
note 2.
connection Ouellette v. State Farm Mut. Auto. Ins.
¶
Co.,
6,
10;
1994 OK
procedure
explanation,
to be tested
he refers
ther
claim
question whether in this small
summary
judgment
narrow
in small-claims
of
""
ap
upon
to act
reversible error
it was
be
if these remarks
cases.12
Even
summary judgment on the
praiser's quest for
argument
the use of
accepted as
claim. That
issue should
exterminator's
claims,
summary process
they
in
came
small
by holding
than that
no more
answered
stage.
In time-
late at certiorari
too
much
summary
inappropriate
because
relief was
they are to be
appellate practice
honored
disputed
of
unsuited for resolution
it
afterthought.13
mere
dismissed as
fact issues.
From a footnote comment
the ex
T6
sought summary
appraiser
relief
15 The
May
for
19
1998 motion
sum
terminator's
small claim and later
the exterminator's
from
appraiser's counter
mary
on the
counterclaim.
'The extermi
pressed her own
(cum response
opposition
to the
claim
(a)
appropriateness
of
challenged the
nator
summary
motion for
appraiser's
renewed
belief that
summary disposition based on his
claim), the court
judgment on exterminator's
disputed
questions
fact
presented
record
leap
the exter
giant
takes a
to conclude that
(b)
suramary
sought
relief from
himself
below,
challenged
on due
broadly
minator
appraiser's counterclaim. Neither
summary
grounds,
process
of
process
the use
that
consti
argued below
relief
eryp
The exterminator's
in a small claim.14
in small
process inappropriate
use
tutes
for
are no more than a realistic
tic comments
Instead,
agreed
"expressly
both
claims.
summary pro
observation about the limits
free to file
any litigant
shall be
litigation.
cess when utilized
small-claims
11
ap
dispositive pre-trial motions...."
They
challenge to
fall short of a frontal
response
petition
in error
praiser's
summary process
in a small
the use of
agreement
parties
submit
notes that
claim.
judge
to the trial
for resolution
ted the case
pronouncement un-
Today's
broad
only negative
by summary
ex
summary process'
condemming
qualifiedly
process
is that
pression about
issues,
justifies
Non-jurisdictional
raised
rule that
courts articulate
narrowest
for
first
certiorari,
generally
rehearing
time on
or on
citing
Collier,
Charles W.
Prece-
decision,"
History,
Authority:
Legal
A Critical
dent and
review. See in this connection Hallibur
unfit
L.Rev, 771,
(1988)(where
775-76
Collier
Wis.
Producing
Grothaus,
Oil
Co. v.
1998 OK
ton
Stupy
Eugene Wambaugh, Tas
Or Cases:
discusses
1244, 1253;
981 P.2d
Oklahoma
¶ 23,
City
City
(1894)). Cappalli points
A Course Or Instruction
Labor,
Dept.
1995 OK
v. State ex rel. Oklahoma
criticized Justices
out that "Justice Powell has
(supplemental
107, ¶ 4,
opinion
necessary
broadly
writing
than
to de-
more
rehearing);
Loan Ass'n
on
First Federal Sav. and
issues,
thereby
particular
cide the
facts and
Nath,
¶
'creat{ing]
future
attacks
incentives
'
opinions,"
quoting
F.
Id. at
Lewis
Court's
page 8 of
brief:
14. The exterminator states at
his
Restraint,
Powell,
Jr., State Decisis and Judicial
appraisal
has never received an
"Plaintiff
L.Rev.
Wash & Lee
In footnote 1 he states: "Without
Defendants.?"
11. The "RECITATION OF AGREEMENT
discovery, Plaintiff is unable to
the benefit of
1998)
(entered
part:
April
states in
ORDER"
compel production of documents
from Defen-
day April,
comes
"NOW ON this 16th
or
dants, nor submit Defendants
deposition
scheduling
captioned
on for
review the above
interrogatories.
Pursuant
to Rule 13 of
by way
parties
appear
matter. The
each
Courts, parties
rely
can
Rules for District
undersigned attorneys and announce to
their
pleadings. stipula-
depositions,
admissions
any statutory
notwithstanding
Court that
affidavits
and exhib-
tions, answers
to discovery,
it is
ofr] decisional
law to
contrary,
express-
summary judg-
request
oppose
to either
or
its
ly agreed
any litigant herein shall be
free
Because we are within the small-claims
ment.
dispositive pre-trial motions in this matter
file
and exhibits are avail-
affidavits
_..
only
procedure,
ORDERED, AD-
IT IS THEREFORE
then,
procedural due
It seems
able.
JUDGED and DECREED that the
here-
of these
would at least
limit the consideration
pre-trial
and all
in shall be allowed to file
questions
ques-
purely
of law and not
matters to
...."
motions
questions of law or fact."
tions of fact or mixed
added).
(emphasis
supplemental
certiorari brief
Exterminator's
pages
15 and 19.
clearly
Simple prudence
use in small claims is
«unwarranted
T9
dictates that we es-
reaching today-either
chew from
directly
the record.
purely
dicta-the
question
abstract
IH
summary process
whether
entirely
is to be
*12
banished
litigation.
small-claims
THE USE OF SUMMARY
RE-
PROCESS
CEIVING TODAY'S SUA SPONTE
IV
BLANKET CONDEMNATION IS
TENABLE
NO
LEGAL BASIS EXISTS
BANNED
A
UPON REVERSAL THE-
FOR BARRING LITIGANTS' ACCESS
ORY THAT
IN
WAS NOT URGED
TO SUMMARY PROCESS
THE TRIAL COURT
Today's rigid
approach to the small-
appellate
An
jurisprudential
court's
regime
claims
is
short-sight-
ill-advisedand
gloss upon
by
an issue not
tendered
question
ed. The
neatly summary
is not how
aggrieved party
judgment's
for the
reversal
can
statutory
be fitted into the
represents
gratuitous
no more than
commen
procedure
scheme of
litiga-
for small-claims
tary
futility.15
and an exercise in
Because
tion, but whether there is a constitutional or
press
exterminator did not
for the blan
statutory
exeluding summary
command for
summary process
ket
prius,
ban of
at nisi
process from small claims. This record is
neither
appellate
intermediate
nor this
any
barren
legal ground
of
tenable
glob-
(on certiorari)
may
court
reach that issue on
ally depriving litigants of access to the valu-
reviewing
give
review. No
is free to
able
mechanism that
relief affords.
theory
corrective relief on a
not
tendered
(a)
Summary process
is
by
not condemned
aggrieved party
judgment's
for the
(b)
legislature,
if properly applied, bears
Moreover,
reversal.16
courts are not allowed
injurious
mo characteristics
to
or-
fair
they might
to
what
do about an issue
forecast
(c)
derly procedure,
poses
incongrui-
no
that is not
them.17
before
Were the court
ty with the minimum
pro-
standards
due
affirming
prius
in this
case
nisi
refusal
cess.
summary process
consider
in the context of a
claim,
ruling
small
its
could
be rested on
A.
applicable theory consistent with the record
The Small Claims Procedure Act Affords
reversal,
presented for
review.
No Basis For An Across-the-board Con-
hand, may
grounded
other
neither be
Summary
demnation of
Process
sua@
theory
sponte
some
invoked
nor on
¶ 11
any pressed argument
only expression
in the Act to
which lacks record
support.18
may point
perhaps inhospitable
one
as
which
15.
Cappalli, supra
(emphasis
tinction between
They
facts not before it. Here
no such
the laws it
the needs of the
cide that
Another
that need
edential court is to state the "law on issues and
"law" is
In
lawmaking body supreme.
discussing
can
added).
powerful
liberty.
potentially
dispute. Any pronouncements beyond
carry
only
wants.
note
no
issue the law
legislatures
badge
tool in the
Their
impact
controversy
before the
p.
latter,
power
authority.
is
grasp
necessary
and courts. All
the courts, have
dicta,
former;
is confined
3.14(b),
before them.
dramatic dis-
simply
Professor
states:
this is
writes
to de-
prec-
Auth.,
which such
phasis
which
expositions
proved,
qualified by
note 4 at 37.
Com'n,
quoted
Westinghouse
''Every judgment
Quin
particular
added.)
1986 OK
the small-claims very It serves the not in that rubric. Bar Rule 13 Does Not Small-Claims - accelerating a opposite purpose that of Litigants from Access disposition by isolating, advance claim's Summary Process trial, controversy.20 A that are not issues Summary process prius at nisi €13 dilatory is not motion by Rule That rule does governed solely 13.23 when, here, discovery unneces is either the reach of small claims from mot exclude sary mamage- easily be limited to a or cam *13 practice. There is no summary-disposition accomplishable ably microscopic dimension deciding small rule-imposed impediment to Summary practice also af self-help.21 by in by summary process, in whole or claims and sereen fords an effective useful any employing to Nor is there obstacle part. spurious defenses.22 questionable or claims and summary a "mini-form" of in small judges hear small priving who De judge to process that would authorize upon procedural device foists claims of this individually and "any decide examine and easily lengthy that could be them trials that is claimed to clearty defined fact issue avoided. supported undisputed and shown to be be the mov- solely by consistent with inferences construing in Today's rigidity 112 24 position in the case." ant's only places Act not undue constraints {14 bring statutory time limits for The summary exam- process, of it also fails to use summary pressing ing a claim and for philosophical underpinnings that small ine the 2, (12 Pleading O.S.Supp. App. Code pertinent § 1. 1984 terms of 12 0.S.1991 1760 The 19. provision seq.) are: no for et contains 1984 2001 by regulation summary dispositions * * * either of depositions interrog- taken or No shall be pre-trial elimination of uncon- discovery proceeding be atories or other shall troverted issues. The Code's omission indica- except procedure used under the small claims summary legislative to leave relief tive of intent in aid execution. No new shall be of regulation by the Court's rule-mak- to Supreme action, brought be into the and no shall O.S.Supp. ing. Comment to 12 The Committee in the action. allowed to intervene pertinent part in that 1984 2012 states added). (emphasis permitting function "...[the essential 81, 14, summary disposition of cases that do not involve Copeland Corp., 996 20. v. Tela 1999 OK any dispute justifies that a full trial substantive Co., 1998 931, 932; P.2d v. Avemco Ins. Wynn summary effectively under can be handled Oil Co. ¶ 24, 572, 576; OK 963 P.2d Union 75, judgment procedure Oklahoma District Court Equalization v. Bd. Beckham California Rule 13 ..." ¶ 10, 1330, 1333; P.2d 40, 913 County, OK Television, Inc., v. Tulsa Cable 1979 Reams 376. 171, 19, 373, Center, Inc., Medical 1999 24. See Patel v. OMH 33, ¶18, (emphasis in 1193 dilatory summary may regarded applica original), Rule 13 is not What which holds that summary By very process proceedings. postjudgment relief is not the motion for its ble to discovery. disposition prejudgment applies When that issues but need terms Rule 13 to readily today, only. are need is absent because the materials Id. at at 1193. Unlike sought judi- discovery legal impediment to be can to available or the court in Patel found no summary any postjudgment process use of cially manageably microscopic to a be confined dimension, underlying policy Today's opinion proceedings. of the law should vacation incompatible should not be viewed as with relief minimum, at a followed the wisdom of have, by summary process. encourage, claims, use in small precedent mini-summary process, Patel-approved craft Co., See, application pro eg., McCreery Lilly dehors the Rule 13 v. Eli and 87 ed there for (1978); Cal.App.3d Cal.Rptr. 736 contest cedure, "to eliminate from adversary Mare, individually clearly Cal.App.3d Cal. defined fact issue that is Baron v. Rptr. sup undisputed and shown to be claimed to be solely by consistent with the ported inferences position Id. at (Summary Judgment), in the case." Rules for Dis- movant's Rule 13 Oklahoma, original). (emphasis 0.$.Supp.1993, Ch. trict Courts of applied only as an in discovering legisla aid an relief do not raise insurmountable barrier Judges to this conclusion. who hear small tive intent. It is to be never followed to the clearly charge claims are of their dockets defeating extent of it. may, necessary, enlarge statutory if T17 The Small Claims Procedure Act's time nondilatory limits to accommodate a reference, 1757,28 in 12 0.8.8upp.1994 § quest legisla Recent motions for gen transfer of the cause to the changes procedure, tive in the small-claims eral docket does not exclude proce resort elongated which have setting time for dural devices that are consistent with the days,26 claim to be heard from 80 to 60 are object of the Act-the prompt efficient compatible summary process' with the use disposition claims and defenses.29 designed expense to eliminate both not infer from the mention of a delay of trial when no material facts are at motion to transfer that other motions stand issue. excluded from procedure. small-claims litigant 115 No should be denied access ground valid prohib must be raised for first relief unless the use of that iting judge entertaining the use of is banned the constitution or summary process in a small claim before pass enactment will fundamental procedural valuable mechanism can be with ° law's muster. Since no such barriers litigant held from a on that.docket. *14 here, present today's hyperglobal pronounce- utterly ment unwarranted. is VI
V
TODAY'S ABSOLUTE EXCLUSION OF
SMALL-CLAIMS LITIGANTS FROM
THE RULE OF EXPRESSIO UNIUS EST
THE BENEFIT OF SUMMARYPRO-
EXCLUSION
INAP-
ALTERIUS IS
EQUAL
CESS
THE
OFFENDS
PRO-
IN
PLICABLE
DETERMINING THE
TECTION CLAUSE
APPROPRIATENESS
OF
SUM-
MARY
IN THE
PROCESS
CONTEXT
Absolutely excising
T18
from the bene
OF SMALL-CLAIMS PROCEDURE
summary process
of
fits
every small-claims
{16
general
rule
express
litigant,
including even those who need not
mention of one matter excludes other similar
discovery,
resort
is no less offensive to the
27
matters that are not
mentioned
has no
Equal
subjecting
Protection Clause than
application here. The maxim an auzsiliary
prisoners
is
(nonju-
to a different mode of trial
construction,
statutory
rule
ry)
not an abso-
for mental-health commitment from that
of
tute norm
law.
substantive
It should
persons.30
be which is accorded other
In both
Cleveland,
184,
Hambright
City
Division,
25.
v.
desty
OK
Corp.-Webster
1960
v. Andro
1976 OK
129, 123,
360 P.2d
555 P.2d
(effec-
0.S.Supp.2000
26. The
terms of 12
1767
pertinent
O.S.Supp.1994
28. The
terms of 12
2000)
tive 7 June
are:
§ 1757 are:
appearance
The date for the
of the defendant
A. On motion of the defendant,
a small claims
provided
in the order endorsed on the affi-
court,
may,
action
in the discretion of the
be
(60)
sixty
davit
days
shall not be more than
nor
transferred from the small claims docket
(10) days
less than ten
from the date of the
court;
another docket of the
...
order....
{emphasis supplied).
maxim,
expressio
27. This
known as
unius est
alterius,
auxiliary
statutory
exclusio
is an
Johnson
v.
rule of
Scott,
50, ¶ 14,
("the purpose
of the Small Claims Proce
applied
great
construction to be
with
caution and
disposition
speedy justice").
dure Act is the
is not conclusive in the search
statute's
meaning.
only
It is used
where in the natural
spe
association of ideas the
imposed today
contrast between a
30. The ban
is as offensive to con-
subject
expressed
cific
matter which is
and one
stitutional
standards
as that which the Court
which is not mentioned leads to an inference that
found in
Herold,
Baxstrom v.
383 U.S.
the latter was not intended to be included within
S.Ct. 760, 15 LEd.2d
where exclud-
Co.,
Spiers Magnolia
ing
only
statute.
jury
Petroleum
convicts
from the benefit of
trial
852, 856-857;
Har
was held to violate the XIVth Amendment. See
avoid a needless
judgment in an effort to
procedural
critical
a valuable and
instances
New-
pressed by the other.
rela
trial on the claim
any rational
is denied without
device
Summary
that would make
sought discovery.
characteristic
party
tion to some
ther
impermissibly
by the exterminator
judgment was resisted
the distinction
free
discriminatory impact.31
made its
issues
on the contention
fact
appraiser's
application impermissible.
deprived
litigant
be
cannot
summarily disposed of
was
counterclaim
device,
procedural
otherwise
of a valued
necessity
this ree-
of trial. On
without
liti
to other
available in the district
ord,
jurisprudential
today's
hyperglobal
bears a rational
gants, unless the exclusion
plainly injurious
is
bench
treatment
objective
legitimate
relationship to
practitioners
as well as
lures
and bar.
objective of small-
attained. The remedial
security
not
judges into a
sense of
false
prevent delay
procedure is to
in-depth examination into
affording them an
Only
decision-making.32
expeditious
foster
the court's
impact
law's
the fundamental
discovery
delay-causing
is banned. When
relief,
to-
condemnation of
blanket
summary process would cause
utilization
partial.
tal or
relationship
delay,
is no rational
no
there
summary process and
exclusion of
between
VII
eliminating delay.33
legislative purpose of
UNIFORMITY
THE
PROCEDURAL
Summary
clearly
compatible
is
BY ART.
COMMANDED
legislatively
speed factor
with the
REQUIRES
OKLCONST.,35
THAT
delay
purpose
Its
is to eliminate
infused.
SANS DIS
SUMMARY PROCESS
expense
a needless trial where
and the
TO
BE AVAILABLE
COVERY
to be exami
there
no material
fact issue
LITIGANTS
SMALL-CLAIMS
absurdly
Today's myopically and
ned.34
prohibits
Act
rigid construction
sum
Today's pronouncement is insensi
*15
litigants
mary
all small-claims
uniformity
norms of
relief for
tive to the constitutional
ap
discovery
required.
This
where no
Const.,
5,
46,
§
symmetry. Art.
and
Ok.
process
equal
and
proach plainly offends due
terms,
mandates,
pro
in absolute
statewide
protection standards.
uniformity
of simi
for an entire class
cedural
larly
persons
things.36 Its rele
situated
or
delay component
present
in
121 No
was
legislature
summary
expressly prohibit
parties pressed for
vant terms
this case. Both
504,
¶
Cady,
Humphrey
405 U.S.
92 S.Ct.
also
v.
4,
932;
34.
note 20 at
at
Wynn,
supra
Copeland,
124,
Oil,
576;
supra
supra
at
at
Union
note 20
1048,
VIII SUMMARY Today's pronouncement, overbroad court,
in which acting sponts, sua takes
summary process out of the pro- small-claims circumstances,
cedure under all is obiter jurisprudential
dictum- rank ballast of no
efficacy. litigant No below or appeal
pressed
contrary,
To the
safeguards
dural
is our main assurance
Maule,
note 36 at 203-204;
supra
Reynolds,
'
822;
supra note 36 at
Joiner,
Great Plains Federal S & L
equal justice
there will be
law."
under
¶
Assn.