Fuller v. SIGHTN SOUND APPLIANCE CENTERS

• Decision Date: 12 February 1999
• Docket Number: No. 91,292.,91,292.
• Citation: 1999 OK CIV APP 53,982 P.2d 528
• Parties: Dinah FULLER, Plaintiff, and Gloria Smith, Velma T. Taylor, David Hale, Diane Slaten, Clarence Lee Nickell, Karen Nickell, Kerri Zimmerman, and Jon Zimmerman, Plaintiffs/Appellants, v. SIGHT `N SOUND APPLIANCE CENTERS, INC., Defendant/Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

982 P.2d 528

1999 OK CIV APP 53

Dinah FULLER, Plaintiff, and Gloria Smith, Velma T. Taylor, David Hale, Diane Slaten, Clarence Lee Nickell, Karen Nickell, Kerri Zimmerman, and Jon Zimmerman, Plaintiffs/Appellants, v. SIGHT `N SOUND APPLIANCE CENTERS, INC., Defendant/Appellee.

No. 91,292.

Court of Civil Appeals of Oklahoma, Division No. 3.

February 12, 1999.

Certiorari Denied May 4, 1999.

David Humphreys, Luke J. Wallace, Humphreys, Wallace, Humphreys, Tulsa, Oklahoma, For Plaintiffs/Appellants.

Joseph R. Farris, Paula J. Quillin, Feldman, Franden, Woodard & Farris, Tulsa, Oklahoma, For Defendant/Appellee.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3.

OPINION

ADAMS, Judge:

¶ 1 Plaintiffs/Appellants Taylor, the Nickells, Slaten, and the Zimmermans seek reversal of a trial court order which granted judgment to Defendant/Appellee (SSAC) on their claims against SSAC for deceit and alleged violations of the Oklahoma Consumer Protection Act (the Act), 15 O.S.Supp.1994 § 751 et seq.¹ Plaintiffs/Appellants Smith and Hale seek reversal of an order which concluded they were improperly joined as plaintiffs and struck their claims under the Act from the petition.² The essence of Consumers'³ claims is that SSAC sold each of them merchandise represented to be new or original which SSAC knew was reconditioned, reclaimed, used, damaged or secondhand.⁴

STANDARD OF REVIEW

¶ 2 SSAC attacked all of the claims on three grounds and the claims by Smith and the Nickells on the additional basis of improper venue, filing a Motion to Dismiss and an alternative Motion to Strike. In doing so SSAC relied upon evidentiary material outside the petition. After arguing that SSAC's motion should be treated as a motion for summary judgment and listing the material facts which prevent dismissal and summary judgment, Consumers attached additional evidentiary material outside the petition to support their arguments. Because the trial court did not expressly exclude the parties' evidentiary materials, we treat its orders which disposed of claims on the merits (the claims by Taylor, the Nickells, Slaten, and the Zimmermans) as a summary judgment. See 12 O.S.1991 § 2012(B).

¶ 3 In reviewing those orders, we must examine the pleadings, depositions, affidavits and other evidentiary materials submitted by the parties and affirm if there is no genuine issue as to any material fact and SSAC is entitled to judgment as a matter of law. Perry v. Green, 1970 OK 70, 468 P.2d 483. All inferences and conclusions to be drawn from the evidentiary materials must be viewed in a light most favorable to Consumers. Ross v. City of Shawnee, 1984 OK 43, 683 P.2d 535. We are limited to the issues actually presented below, as reflected by the record which was before the trial court rather than on one that could have been assembled. Frey v. Independence Fire and Casualty Co., 1985 OK 25, 698 P.2d 17.

ANALYSIS

STATUTE OF LIMITATIONS

¶ 4 The trial court concluded that (1) the claims of Taylor and the Nickells were barred by, and that (2) "the statute of limitations is not tolled in that such Plaintiffs would not have been members of any class action filed in Garfield County, Oklahoma," citing as its authority American Pipe and Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974). Consumers agree the three-year period provided by § 95(2) applies, but argue American Pipe requires tolling of the limitation period while the class action was pending. SSAC contends the one-year period provided by applies and that American Pipe requires that the limitation period not be tolled under the circumstances of this case.⁵

¶ 5 Because Taylor and the Nickells alleged SSAC violated the Act "in the summer of 1992" and on "January 19, 1994," respectively, but did not file their petition until February 5, 1997, both of their claims would be barred under either § 95(2) or (4), if the trial court's interpretation that American Pipe does not require tolling is correct. Therefore, we begin our analysis with that legal issue.

Tolling

¶ 6 American Pipe held "the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action," 94 S.Ct. at 766. A subsequent case, Crown, Cork & Seal Company Inc., v. Parker, 462 U.S. 345, 354, 103 S.Ct. 2392, 2397-2398, 76 L.Ed.2d 628 (1983) concluded the American Pipe rule applies not only to those members who intervene after the denial of class certification but also those who file actions on their own and that "[o]nce the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied." (Emphasis added.)

¶ 7 SSAC argues there was no tolling because American Pipe limited the effect of its ruling to individuals who were denied class status because of an inability to satisfy the numerosity requirement of the federal class action rules. Although American Pipe noted that it was addressing only a case where class certification was denied because of lack of numerosity, nothing in American Pipe suggests that it would be improper to apply the rule in other cases. Any doubt about the application of American Pipe to cases involving classes which were denied certification on other grounds was removed by Crown, Cork & Seal Company Inc. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983), which involved a denial based on other factors.

¶ 8 Relying principally upon language in a specially concurring opinion in Crown, Cork & Seal, SSAC also argues the tolling rule does not apply because the allegations of the plaintiffs in the Garfield County case were too broad to give SSAC fair notice of the claims. For purposes of this case we need not decide whether such an evaluation of the class action pleadings in the earlier case is required for tolling to apply.

¶ 9 In Crown, Cork & Seal the Court concluded that the limitation period for Mr. Parker's individual discrimination action against his employer was tolled until the requested class which would have included Mr. Parker was denied certification in a class action filed by other black individuals alleging racial discrimination in employment. The Court concluded the filing of that class action tolled Mr. Parker's individual action, despite the class action complaint's very broad class description. Faced with that decision, we cannot conclude that the much narrower class description involved here did not give SSAC fair notice of the claims in this lawsuit. Although Consumers were not ultimately determined to be part of the class certified in the Garfield County action, they would have been if the class proposed by the Garfield County plaintiffs had been certified. We hold the statute of limitations was tolled by the Garfield County class action.

Other Limitation Issues

¶ 10 SSAC argues § 95(4)'s one-year period applicable to "an action upon a statute for penalty" applies because the Act provides for civil penalties under some circumstances. See 15 O.S.Supp.1994 § 761.1(B) and (C).⁶ Consumers argue § 95(2)'s three-year period for "an action upon a liability created by statute other than a forfeiture or penalty" applies.

¶ 11 The test for determining whether a statute is penal or not is whether its purpose is to afford a private remedy to a person injured by the wrongful act, or for the benefit of the state to punish an offense against the state. Tulsa Ready-Mix Concrete Company v. McMichael Concrete Co., 1972 OK 53, 495 P.2d 1279. As evidenced by the Legislature's use of the terms "civil penalty" and "forfeiture," to some extent at least, the Act must be considered to be penal.

¶ 12 However, a statute can be both penal and remedial. Culbertson v. McCann, 1983 OK 57, 664 P.2d 388. A "penal action" is one founded entirely on statute and brought with the sole object of recovering a penalty or forfeiture imposed as punishment for a specific offense, while a "remedial action" is one brought to obtain compensation or indemnity. Smith Engineering Works v. Custer, 194 Okl. 318, 151 P.2d 404 (1944).

¶ 13 The Act authorizes the recovery of damages by either a private citizen, e.g., § 761.1(A), or the Attorney General or the district attorney, e.g., 15 O.S.Supp.1994 § 756.1(A)(3), and neither § 761.1(B) nor (C) limits the recovery of civil penalties by the State. Therefore, the Act is penal in some respects and remedial in others, depending on who is suing and what they are seeking to recover. When different portions of the statutes of limitations apply to different portions of a statute that is penal in one respect and remedial in another, they should be so employed. Cummings v. Board of Education of Oklahoma City, 190 Okl. 533, 125 P.2d 989 (1942). Because Consumers, in their individual capacities, are seeking only damages, we agree with the trial court that the three-year period applies to their claims.

¶ 14 The Nickells produced undisputed evidentiary material showing their claim arose on January 19, 1994. The limitations period was tolled from October 4, 1994, when the class action was filed, until June 20, 1996, when the Garfield County court denied certification to a class which included the Nickells. When this action was filed on February 5, 1997, only seventeen months of the limitation period had expired. Based upon the undisputed evidence, the Nickells' claim was not time-barred, as a matter of law.

¶ 15 Taylor's claim, however, presents a question of fact on this issue. Taylor alleges her claim arose "in the summer of 1992," and SSAC did not dispute this date. Without a more precise date, it is impossible to determine whether the limitations period, even when excluding the time it was tolled, has run on her claim. Summary judgment on a statute of limitations defense in favor of the moving party is inappropriate where the...