H & En, Inc. v. Oklahoma Dept. of Labor, 103,126.

• Decision Date: 05 May 2006
• Docket Number: No. 103,126.,Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.,103,126.
• Citation: 2006 OK CIV APP 70,136 P.3d 1070
• Parties: H & EN, INC., Plaintiff/Appellant, v. OKLAHOMA DEPARTMENT OF LABOR, Defendant/Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

136 P.3d 1070

2006 OK CIV APP 70

H & EN, INC., Plaintiff/Appellant, v. OKLAHOMA DEPARTMENT OF LABOR, Defendant/Appellee.

No. 103,126.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.

Court of Civil Appeals of Oklahoma, Division No. 1.

May 5, 2006.

Appeal from the District Court of Oklahoma County, Oklahoma; Honorable Daniel L. Owens, Trial Judge.

AFFIRMED.

Joan A. Renegar, Kornfeld, Franklin, Renegar & Randall, Edmond, OK, for Plaintiff/Appellant.

Don A. Schooler, Oklahoma Department of Labor, Oklahoma City, OK, for Defendant/Appellee.

Opinion by CAROL M. HANSEN, Judge.

¶ 1 Appellant, H & EN, Inc. (Employer), appeals from the trial court's order granting Appellee, Oklahoma Department of Labor's (Department), Motion to Dismiss for Lack of Subject Matter Jurisdiction.¹ We hold the trial court properly granted Department's motion to dismiss because Employer failed to include its wage claimant employee as a party to the action. We affirm.

¶ 2 The record reflects that Virginia R. Milner (Employee), filed a Wage Claim with Department seeking wages she alleged were due and unpaid by Employer. Employer denied that Employee was in its employ. Department determined Employee was due wages of $36,200.55, and, pursuant to 40 O.S. 2001 § 165.3(B), was entitled to liquidated damages in an equal amount. Employer disputed the determination and made a timely request for an administrative hearing.

¶ 3 The matter was heard by an Administrative Law Judge (ALJ), as designee of the Commissioner of Labor. After the hearing, which included introduction of documentary evidence, testimony by Employee, and testimony by others on behalf of Employer, the ALJ concluded Employee was entitled to wages of $7,395.60, with liquidated damages of an equal amount. The ALJ also concluded, inter alia, that Employer and Employee met the definition of those terms under 40 O.S.2001 § 165.1. The ALJ's Final Agency Determination awarded judgment against Employer consistent with the foregoing conclusions of law.

¶ 4 Employer filed its Petition for Review in the trial court, alleging that pursuant to 75 O.S.2001 § 318, which is part of the Oklahoma Administrative Procedures Act (the Act), it was entitled to judicial review of Department's determination as a "final agency order."² Employer asked that it be determined not liable for wages or mandatory liquidated damages to Employee. Employer named Department as the only defendant in its Petition.

¶ 5 Department entered a special appearance in the trial court, filing concurrently its Motion to Dismiss for Lack of Subject Matter Jurisdiction. Department argued subject matter jurisdiction was lacking over Employer's Petition because [1] Employer failed to name Employee as a defendant, and [2] Employee, "the real party in interest" was an indispensable and necessary party under § 318(C) of the Act.

¶ 6 In its Response to Department's motion to dismiss, Employer asserted it had complied with the statutory requirement of notice under § 318(C) because it had served Department and Employee "was represented by [Department] during the hearing regarding [Employee's] wage claim." Employer further asserts only the "administrative agency is a necessary party to a petition because it is review of that agency's determination that is sought."

¶ 7 The trial court granted Department's motion to dismiss. It found lack of subject matter jurisdiction over Employer's § 318 petition "due to the absence herein of the 75 O.S. § 318 indispensable and necessary party, the real party in interest, i.e., the pro se wage claimant." Employer appeals from the trial court's judgment. Generally, Employer contends the trial court's judgment should be reversed because [a] Oklahoma courts do not favor motions to dismiss, and [b] Employer complied with statutory requirements for notice. We find no merit in either contention.

¶ 8 Employer's contention that Oklahoma courts do not favor motions to dismiss may in some cases be true, but, as presented in Employer's response to Department's motion to dismiss, this rule pertains to motions to dismiss for failure to state a claim upon which relief can be granted, not to cases where the court finds it lacks jurisdiction. Where jurisdiction is statutory, "the terms of the statute must be complied with before a court can acquire jurisdiction." Edmondson v. Siegfried Ins. Agcy., Inc., 1978 OK 45, 577 P.2d 72. If jurisdiction is lacking, the court has no discretion and the question of whether motions to dismiss are viewed with disfavor is irrelevant.

¶ 9 With respect to Employer's contentions regarding compliance with "notice" requirements under § 318(C), we are persuaded by the Court of Civil Appeals reasoning in Transwestern Pub., L.L.C. v. Langdon, 2004 OK CIV APP 21, 84 P.3d 804. In Langdon, the Court was considering facts similar to those now before us. There, in its petition for review by the district court from a wage determination in favor of an employee, the employer named only the employee as defendant. Both the employee and the Department of Labor, the latter appearing specially, moved for dismissal for failure to join Department as a necessary party defendant. The trial court granted the motion to dismiss and the employer appealed.

¶ 10 The Langdon Court, at 806, concluded § 318(C) implicitly requires that all those who are entitled to be served copies of the petition be made a party to the petition. Section 318(C) provides:

Copies of the petition shall be served upon the agency and all other parties of record,. . . The court, in its discretion, may permit other interested parties to intervene.

¶ 11 The Langdon Court held that joinder of Department, and all other parties of record, was necessary for jurisdiction over a request for judicial review of an agency order. While the facts in Langdon were reverse of the facts...