House v. Town of Dickson

• Decision Date: 03 July 2007
• Docket Number: No. 102,721.,102,721.
• Citation: 193 P.3d 964,2007 OK 57
• Parties: Franklin HOUSE, for himself and all others similarly situated, Plaintiff/Appellee, v. The TOWN OF DICKSON, a Municipal Corporation, Defendant/Appellant.
• Court: Oklahoma Supreme Court

193 P.3d 964

2007 OK 57

Franklin HOUSE, for himself and all others similarly situated, Plaintiff/Appellee, v. The TOWN OF DICKSON, a Municipal Corporation, Defendant/Appellant.

No. 102,721.

Supreme Court of Oklahoma.

July 3, 2007.

ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION III

¶ 0 Plaintiff paid a fine of $389.00 to the Town of Dickson, Carter County, Oklahoma, for reckless driving in violation of a municipal traffic ordinance. Plaintiff filed a civil suit seeking injunctive relief prohibiting Dickson from assessing fines in excess of $50.00 for violations of the town's penal ordinances, damages of $339.00 for alleged overpayment of his fine, damages for all those who had allegedly been fined in excess of $50.00, and class certification. Plaintiff filed a motion for summary judgment. The town objected to the plaintiff's motion and filed a counter-motion for summary judgment. The district court granted the plaintiff's motion in part. It then dismissed the claim for injunctive relief and granted the motion for class certification. The town filed a petition in error. The Court of Civil Appeals affirmed the judgment. This Court granted certiorari.

COURT OF CIVIL APPEAL'S OPINION VACATED; DISTRICT COURT'S CLASS CERTIFICATION ORDER REVERSED; CAUSE REMANDED.

David Pyle, Dennis R. Morris, David O. Blankship, Ardmore, OK, plaintiff/appellee.

S. Brent Bahner, Julie J. Austin, Fischl, Culp, McMillin, Chaffin, Bahner & Long, Ardmore, OK, for defendant/appellant.

TAYLOR, J.

¶ 1 The questions before this Court are whether the district court's order of partial summary adjudication is appealable and whether the district court erred in ordering that the action be maintained as a class action pursuant to title 12, section 2023 of the Oklahoma Statutes. We answer the first question in the negative, and the second question in the affirmative.

I. Undisputed Facts and Allegations

¶ 2 Because the record before this court is abysmally deficient, the undisputed facts are few. The record on appeal shows the following undisputed facts. On January 20th, 2005, Franklin House (House), the plaintiff in this case, received a citation for reckless driving in violation of a Town of Dickson (Dickson) penal ordinance. On February 19, 2005, he paid a fine of $389.00 for the violation. At the time, the latest Dickson ordinances deposited in the county law library were dated 1992, and no resolutions for the Dickson governing body were on file at the Carter County Clerk's office.

¶ 3 House made the following allegations and arguments before the trial court in this case. The fine was excessive because Dickson had not filed any ordinances in the Carter County Law Library since November 1, 1992, and had not filed any resolutions with the county clerk. Under title 11, section 14-111(E),¹ a municipality cannot levy a fine of more than $50.00 until it has compiled and published its penal ordinances as required by sections 14-109² and 14-110.³ Section 14-109 requires a municipality to compile and publish its ordinances at least once every ten years and publish biennial supplements. Under section 14-110, upon a municipality compiling the permanent volume of its ordinances and biennial supplement, its governing body must adopt a resolution so notifying the public, must file it in the county clerk's office, and must deposit a copy in the county law library. Dickson did not comply with sections 14-109 and 14-110 by filing a copy of a resolution notifying the public of the publication of its penal ordinances and by depositing a copy of the compilation in the county law library. Thus, Dickson was statutorily prohibited by title 11, section 14-111(E) from levying a fine of more than $50.00.

¶ 4 House sought class certification for all persons who had paid fines to Dickson in excess of $50.00 since November 1, 2002. In his petition filed in the district court, House requested that Dickson be enjoined from collecting fines of more than $50.00 from "any member of the Plaintiff's class," sought judgment in his favor of $339.00 together with interest and costs, and judgment in favor of members of "the Plaintiff's class" in an amount of fines paid in excess of $50.00 with interest and costs.

¶ 5 Dickson filed an objection to House's motion for summary judgment and a counter-motion for summary judgment which it supported with evidentiary materials. Dickson's allegations follow. Dickson contracted with a company to codify all ordinances from 1991 to 2001 and to codify all new ordinances by June 30th of every year thereafter. On October 15, 2002, Dickson's Board of Trustees passed a resolution (1) notifying the public of the publication of the 2002 Supplement to the Code of Ordinances and making copies available for review in its clerk-treasurer's office, (2) directing its clerk-treasurer to file a copy of the resolution in the Carter County Clerk's office, (3) directing its clerk-treasurer to file a copy of the resolution and a copy of the supplement to the code with the Carter County Law Library, and (4) directing its clerk-treasurer to retain a copy in the office for public use, inspection, and examination. The Dickson clerk asked the Dickson Chief of Police to deliver a copy of the Dickson Code of Ordinances to the Carter County Law Librarian. When the police chief arrived at the Carter County Law Library, he could not get into the library, he asked a district attorney's employee for assistance, and the library was empty once he gained access. The police chief left a copy of Dickson's Code of Ordinances with a county employee who said she would deliver it to the county law librarian. Dickson in its counter-motion for summary judgment asserts that even if it had not fully complied with the statutory requirements, it was in substantial compliance.

II. Procedural History

¶ 6 On June 27, 2005, the district court sustained House's motion for summary judgment in part finding House had received and paid a traffic fine in excess of $50.00 and Dickson had not published its ordinances as required by the Oklahoma statutes. The district court limited the extent to which it sustained House's motion to these two finding.⁴ It did not assess any damages. Then on October 14, 2005, the district court entered an order certifying the class and dismissing House's claim for injunctive relief. Dickson appealed raising the issues of whether the trial court erred in granting House's motion for summary judgment and in certifying the class action. House did not appeal the dismissal of his claim for injunctive relief. The Court of Civil Appeals affirmed the district court, and this Court granted certiorari.

III. Appellate Review of District Court Orders

¶ 7 Title 12, section 993 provides that an appeal from an order certifying or refusing to certify an action to be maintained as a class action may be appealed without a final determination in the cause being entered. Thus, the district court's order certifying this action to be maintained as a class action is properly before this Court.

¶ 8 The order ruling on the House's motion for summary judgment states:

Accordingly, the Court finds the following as a matter of law: (1) Mr. House received and paid a traffic fine in excess of $50.00; (2) At the time the plaintiff received and paid the ticket, Dickson had not published its ordinances as required by Oklahoma statutes. The plaintiff's Motion for Summary judgment is therefore sustained to that limited extent.

This order leaves the issues of entitlement to and the amount of damages unresolved and questions of fact unanswered. The order also leaves Dickson's counter-motion for summary judgment pending. Thus, it is a partial summary adjudication or, in lawyer's parlance, a partial summary judgment. Reams v. Tulsa Cable Television, Inc., 1979 OK 171, ¶ 3, 604 P.2d 373, 374.

¶ 9 A partial summary adjudication is not a judgment under title 12, section 681 of the Oklahoma Statutes nor is it a final order under title 12, section 953. Reams, 1979 OK 171 at ¶ 3, 604 P.2d at 374. A partial summary adjudication is not appealable unless it is an interlocutory order (1) appealable by right under title 12, sections 952(b)(2) or 993 or other statutory provision or (2) certified for immediate appeal under title 12, section 952(b)(3), or (3) it is prepared as a final judgment, order, or decree at the direction of the court with a finding that there is no just reason for delay and disposes of some of the claims pursuant to title 12, section 994. Id. The district court's partial summary adjudication before us is not appealable by right nor does it contain the necessary language for review as required by title 12, sections 952(b)(3) or 994.

¶ 10 Even if the district court's partial summary adjudication had disposed of all the issues, it would have been improperly rendered as material facts remained in dispute. Summary judgment is proper only when "there is no substantial controversy as to any material fact...." 12 O.S.2001, ch. 2, app., rule 13(e). In this case, material facts necessary to support a summary judgment are not part of the record.

¶ 11 There remain factual questions which would show whether or not House's claims are an impermissible collateral attack on a judgment of the Dickson municipal court.⁵ A judgment or final order of a court is not subject to collateral attack unless the judgment is void. Stork v. Stork, 1995 OK 61, ¶ 12, 898 P.2d 732, 738. A judgment will be deemed void only when the face of the record reveals that one of three jurisdictional elements is missing: jurisdiction over the parties, jurisdiction over the subject matter, or power to pronounce the particular decision that was entered. Id. at n. 17. If extrinsic evidence is necessary to show the jurisdictional defect, the judgment or final order is not void. Id. ¶ 12, 898 P.2d at 738. Further, the legal existence of a de facto court acting under color of law is not subject to collateral attack. Morgan...