Dowell v. Pletcher

• Decision Date: 15 July 2013
• Docket Number: No. 110,774.,110,774.
• Citation: 304 P.3d 457
• Court: Oklahoma Supreme Court
• Parties: Jerry DOWELL, d/b/a Jerry Dowell Bail Bonding Company, International Fidelity Insurance Company, Allegheny Casualty Company, American Surety Company, Accredited Surety & Casualty Company, Inc. and Lexington National Insurance Corporation, Plaintiffs/Appellants, v. Curt PLETCHER d/b/a Action Bail Bonds, Defendant/Appellee, v. The Court Clerk of Oklahoma County, Patricia Presley, Defendant.

304 P.3d 457

Jerry DOWELL, d/b/a Jerry Dowell Bail Bonding Company, International Fidelity Insurance Company, Allegheny Casualty Company, American Surety Company, Accredited Surety & Casualty Company, Inc. and Lexington National Insurance Corporation, Plaintiffs/Appellants,

v.Curt PLETCHER d/b/a Action Bail Bonds, Defendant/Appellee,

v.The Court Clerk of Oklahoma County, Patricia Presley, Defendant.

No. 110,774.

Supreme Court of Oklahoma.

June 25, 2013.

As Corrected July 15, 2013.

APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA, HON. ROGER H. STUART.

¶ 0 This is an interlocutory appeal from the trial court's denial of plaintiffs'/appellants' motion for temporary injunction to enjoin defendant/appellee from writing bonds in Oklahoma county in violation of the Ten Bond Rule. Pletcher argued that the rule has been held unconstitutional by the District Court of Sequoyah County. The trial court in this matter has not yet ruled on the issue of constitutionality of the statute. It was not an abuse of discretion to deny the temporary injunction before a trial on the merits to determine whether the statute is constitutional.

AFFIRMED.

Mark T. Hamby, P. Gae Widdows and Katherine R. Morelli, Bonham & Howard, P.L.L.C., Tulsa, Oklahoma, for the appellants.

Fourth Scoufos, Sallisaw, Oklahoma and Sharon K. Weaver, Riggs Abney Neal Turpen Orbison & Lewis, Inc., Tulsa, Oklahoma, for the appellee.

EDMONDSON, J.

¶ 1 Appellants are a licensed bail bondsman and several insurance companies that issue bail bonds who complain that the defendant, Curt Pletcher, a registered professional bail bondsman in Tulsa County, is violating the Ten Bond Rule, 59 O.S.2011 § 1320(B), of the Oklahoma Bail Bondsmen Act by using a surety bondsman to write more than ten bonds per year in Oklahoma County. The “Ten Bond Rule” provides, in pertinent part:

No bail bondsman shall become a surety on any undertaking unless he has first registered his license in the office of the sheriff and with the clerk of the district court in the county in which the bondsman resides or offices, but not both.... Notwithstanding the foregoing provisions of this section, a bondsman may write bonds on no more than ten defendants per year in each of the remaining seventy-six counties of this state in which the bondsman cannot register his license.

¶ 2 In Surety Bail Bondsmen v. Insurance Commissioner, 2010 OK 73, 243 P.3d 1177, 1185, this Court held that § 1320(B) limits a professional bondsman to writing bonds on no more than ten defendants a year in a county in which the professional bondsman is not registered and a bondsman cannot avoid the rule by delegating the power to a surety bondsman. The appellants maintain that Pletcher is violating Surety Bail Bondsmen by using a surety to write more than ten (10) bonds per year in Oklahoma County. They argue that after he has written bonds on ten defendants in one year, whether directly or through a surety bondsman, all bonds issued thereafter in Oklahoma County are illegal. The appellants sued Pletcher for damages for violations of the Deceptive Trade Practices Act, the Oklahoma Antitrust Reform Act and for engaging in unfair competition that has caused them to lose business.

¶ 3 Pletcher filed a motion to dismiss on the ground that the petition failed to state a claim because the Ten Bond Rule was held to be unconstitutional by District Judge Jeff Payton in Sequoyah County.¹ Judge Payton enjoined the Insurance Commissioner from enforcing the Ten Bond Rule. Pletcher argues that because the statute has been declared unconstitutional and an injunction entered against the Insurance Commissioner, the Ten Bond Rule cannot be enforced against him.² The appellants argue that the Sequoyah County case is not binding on the Oklahoma County District Court because it did not involve any of the same parties and the decision was not appealed. The trial judge denied Pletcher's motion to dismiss.

¶ 4 The appellants also sought temporary and permanent injunctions to enjoin Pletcher from continuing to write bonds in Oklahoma County in violation of the Ten Bond Rule, arguing that they are being irreparably harmed. The trial judge denied appellants' motion for temporary injunction and directed the parties to brief: 1) the constitutionality of 59 O.S. § 1320(B); 2) the effect of Judge Payton's ruling on his decision; and 3) whether the Insurance Commissioner is a necessary party to the action.³ Appellants appealed the order denying temporary injunction pursuant to Rule 1.60(c), Okla. Sup.Ct. Rules.⁴ We granted the appellants' motion to retain the appeal. Curt Pletcher filed a motion to dismiss the appeal and the motion is denied.⁵

¶ 5 Matters involving the grant or denial of injunctive relief are of equitable concern. A judgment issuing or refusing to issue an injunction will not be disturbed on appeal unless the lower court has abused its discretion or the decision is clearly against the weight of the evidence. Sharp v. 251st Street Landfill, Inc., 1996 OK 109, 925 P.2d 546. This Court will consider all the evidence on appeal to determine whether the trial court's denial of a temporary injunction was an abuse of discretion. ⁶

¶ 6 Injunction is an extraordinary remedy and relief by this means should not be granted lightly. Equity courts exercise discretionary power in granting or withholding extraordinary remedies, particularly where injunctive relief is sought, and its granting rests in the sound discretion of the court to be exercised in accordance with equitable principles and in light of all circumstances. Cloer v. Gillespie, 1963 OK 195, 386 P.2d 1015.

¶ 7 To obtain a preliminary injunction, a plaintiff must show that four factors weigh in his favor: 1) the likelihood of success on the merits; 2) irreparable harm to the party seeking injunction relief if the injunction is denied; 3) his threatened injury outweighs the injury the opposing party will suffer under the injunction; and 4) the injunction is in the public interest. Daffin v. State ex rel. Oklahoma Dept. of Mines, 2011 OK 22, 251 P.3d 741. The right to injunctive relief must be established by clear and convincing evidence and the nature of the injury must not be nominal, theoretical or speculative. Sharp v. 251st Street Landfill, Inc., 1996 OK 109, 925 P.2d 546.

¶ 8 Pletcher argues that appellants failed to show that they are entitled to injunctive relief because there is no evidence that he deprived any of the appellants from writing any bonds. The appellants contend that Pletcher's violation of the Ten Bond Rule “stole business from them” and that an injunction would mitigate their damages. Appellants argue that the status quo is in violation of this Court's opinion in Surety Bondsmen and should not be preserved. The trial judge took into account that the Commissioner's interpretation of the Ten Bond Rule prior to Surety Bondsmen had been followed for the majority of the lifetime of the rule and that the rule has since been declared unconstitutional by an Oklahoma district ...