Hitchcock v. Allison

• Decision Date: 15 November 1977
• Docket Number: No. 50525,50525
• Citation: 572 P.2d 982
• Parties: Sharon D. and James H. HITCHCOCK, husband and wife, Appellants, v. Ted S. and Nell ALLISON, husband and wife, d/b/a Prairie View Mobile Home Park, Appellees.
• Court: Oklahoma Supreme Court

Page 982

572 P.2d 982

Sharon D. and James H. HITCHCOCK, husband and wife, Appellants, v. Ted S. and Nell ALLISON, husband and wife, d/b/a Prairie View Mobile Home Park, Appellees.

No. 50525.

Supreme Court of Oklahoma.

Nov. 15, 1977.

Appeal from the District Court of Tulsa County; S. Thomas Coleman, judge.

Appellants (tenants) brought a replevin action against Appellees (landlord) for certain household goods, furniture and personal effects belonging to Appellants, which were seized and stored by Appellees, who claimed a statutory lien thereon to satisfy a sum claimed as unpaid rentals and for damages to the premises. The Trial Court denied replevin and rendered judgment for Appellees for the aforementioned sum, establishing the same as a lien on the personal property of Appellants, pursuant to 41 O.S.Supp.1973, § 42. Appellants bring the present appeal challenging the constitutionality of said statute.

AFFIRMED.

James H. Werner, Tulsa, for appellants.

Garrison & Pigman by Paul E. Garrison and Mark O. Thurston, Tulsa, for appellees.

BARNES, Justice:

The single question presented is whether 41 O.S.Supp.1973, § 42, is unconstitutional when tested by the Fourteenth Amendment of the United States Constitution as applied through 42 U.S.C., § 1983, for the reason that a private person acting under the authority of the statute does so under color of State law.

The parties are in agreement on the facts. Appellants-Plaintiffs, Sharon D. and James H. Hitchcock, husband and wife, rented a mobile home from Appellees-Defendants, Ted S. and Nell Allison, husband and wife, d/b/a Prairie View Mobile Home Park, Tulsa, Oklahoma, on an oral tenancy from month to month (January 1, 1976, through January 28, 1976) and furnished the home with their own furniture and household goods.

The petition states that on January 5, 1976, Appellant, Sharon Hitchcock, filed her petition for divorce against Appellant, James H. Hitchcock. She took the children and went home to mother, leaving behind the furniture and household goods, clothing, pictures, and family items, which are, in the main, mortgaged to several Oklahoma banks. These items were specifically enumerated in a list attached to Appellant's petition. The Appellant husband left several days later, also leaving behind the aforementioned property.

The mobile home was without heat, as the furnace was not working properly, and the Appellant husband left the cooking range and oven on when the home was vacated. Sub-freezing weather occurred around January 10th, which caused the pipes to burst, resulting in water damage in and about the premises.

Thereafter, Appellees entered the home, caused the pipes to be repaired, removed Appellants' property and stored the same. Appellees were at no time officials of the State of Oklahoma, nor did they seek or receive help from State officials. Further, there was no private contract between the parties setting forth the landlord's right to repossession of such goods on default. Appellants had no notice at the time of entering into the oral lease agreement that Appellees could seize their belongings on default. Nothing in the dealings of the parties permits the conclusion that Appellants agreed or consented in advance to the seizure, either explicitly or by implication.

Subsequent to vacating the premises, Appellant, Sharon Hitchcock, allegedly asked for the return of the property, but was refused by Appellees unless payment was made for unpaid rent and plumbing repairs. Appellees' Response indicates they never refused to deliver the property belonging to Appellants which was exempt from a lien under 41 O.S.Supp.1973, § 41(5). ¹

On February 26, 1976, Appellants filed a replevin action against the Appellees. On March 5, 1976, Appellees filed a Response, Answer, Cross-Petition, and subsequently an Amendment to the Cross-Petition, claiming damages for repairs, unpaid rentals, and cleaning, in the amount of $453.54, and a statutory lien on the personal property. The Trial Court entered its order denying the Writ of Replevin, rendering a money judgment for Appellees for $450.54, and establishing a lien upon the personal property in the possession of Appellees owned by Appellants.

No Court Reporter was available to report the proceedings. Appellants filed an appeal in this Court, Case No. 49,584, and subsequently attempted to get Appellees to approve a narrative statement of the evidence and a Journal Entry of Judgment, which Appellees refused to do, contending no final order or judgment had been entered by the Court.

On December 29, 1976, the Trial Court entered a final judgment, which constitutes the present appeal by Appellants. Thereafter, upon Appellants' motion and by order of this Court, Case No. 49,584 was dismissed as being prematurely filed.

The landlord's lien statute, 41 O.S.1973 Supp., § 42, which is the subject of this appeal, provides:

"An operator shall have a lien upon that part of the property belonging to the tenant which has a value not to exceed the amount of the proper charges owed by the tenant, which may be in a rental unit used by him at the time notice is given, for the proper charges owed by the tenant, and for the cost of enforcing the lien, with the right to possession of the property until the debt obligation is paid to the operator. Provided, however, that such lien shall be secondary to the claim of any prior bona fide holder of a chattel mortgage or to the rights of a conditional seller of such property, other than the tenant."

The other pertinent statute is 42 U.S.C., § 1983, which provides in part "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

Appellants bring this appeal stating the main question to be decided is whether a private person acting under the authority of the State statute, 41 O.S.1973 Supp., § 42, does so under color of the State law.

It is well established that purely private action is immune from the restrictions of the Fourteenth Amendment, but to distinguish between private action and State action can sometimes be difficult. See Jackson v. Metropolitan Edison Company, 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). State action is an elusive concept and cannot be discerned by a precise formula. Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). The many factors involved must be sifted and all circumstances weighed.

The authorization by statute of the challenged conduct does not by itself require a finding of State action. See Culbertson v. Leland, 528 F.2d 426 (9th Cir. 1975), and Adams v. Southern California First National Bank, 492 F.2d 324 (9th Cir. 1973).

In challenging the constitutionality of 41 O.S.Supp.1973, § 42, Appellants rely on Culbertson v. Leland, supra, involving the Arizona Innkeeper's Lien Statute, and Hall v. Garson, 430 F.2d 430 (5th Cir. 1970).

In Culbertson, supra, the statute authorized the keeper of a hotel or lodging house to seize, without notice or judicial procedure, the personal property of a lodger who failed to pay rent. The Culbertsons were renting a hotel room at $20.00 per week beginning in September, 1972. In November they fell one week in arrears and were evicted. Upon eviction, the hotel manager seized, as security for the unpaid rent, personal possessions of the Culbertsons remaining in the room. The Culbertsons brought suit claiming the seizure of their property was made under color of State law, and, in the absence of notice and hearing, violated their constitutional right to due process of law.

That Court considered the question of whether actions of a creditor, acting solely on the authority of a statute, who takes possession of a debtor's property which is unrelated to the debt and which is not subject to prior contractual agreement, were sufficient to constitute State action. The Ninth Circuit in Culbertson, supra, found the statute was Appellee Leland's sole authority for the seizure, which would not otherwise have been even colorably legal, and, since the statute was the sine qua non for the activity in question, the State's involvement through that statute was not insignificant. The Court held the State of Arizona had significantly involved itself in the seizure of Appellants' property.

The Court in the Culbertson case, supra, recognized its decision was squarely in conflict with Davis v. Richmond, 512 F.2d 201 (1st Cir. 1975), and stated as follows:

" * * * The facts in Davis v. Richmond, supra, could hardly be closer to the ones in this case. We agree with the court in Davis that 'The focus for state action purposes should always be on the impact of the law upon private ordering.' 512 F.2d at 204, quoting Burke and Reber, State Action, Congressional Power and Creditors Rights: An Essay on the Fourteenth Amendment, 47 S.Cal.L.Rev. 1, 47 (1973). But we disagree with the proposition that lien statutes which create new rights in favor of creditor landlords have only a minimal impact on private ordering, especially when the parties themselves have failed to agree on a like ordering in the particular case.

"Davis seems to turn on the judgment of the court that a landlord's seizure of the belongings of an evicted tenant was something to be expected in the ordinary course of private affairs, statute or no; the court described that action as 'an obvious and not surprising course.' 512 F.2d at 203. In the circumstances of this case, we find ourselves unable to agree since we cannot say with confidence that appellants should have expected appellee Leland to do what she did."

The effect of the decision in Culbertson is that the Arizona...