RAVEN RESOURCES, LLC v. LEGACY BANK
| Decision Date | 17 November 2009 |
| Docket Number | 203. Released for Publication by Order of the Court of Civil Appeals of Oklahoma,Division No. 2.,No. 106,106 |
| Citation | 2009 OK CIV APP 101,229 P.3d 1273 |
| Parties | RAVEN RESOURCES, L.L.C., and David A. Stewart and Terry P. Stewart, Plaintiffs/Appellants, v. LEGACY BANK; R. Stephen Carmack; Samuel Carmack; Lorie Carmack; Dan Haynes; Patricia Ross; Kenneth Ross; Richard Horton; Jacqueline Bradshaw; Connie Frazier; and John Does 1-10 and Persons Unknown, Defendants/Appellees. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
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William B. Federman, Federman & Sherwood, Oklahoma City, OK, for Appellants.
Richard P. Propester, Joe E. Edwards, Day, Edwards, Propester & Christensen, P.C., Oklahoma City, OK, for Appellees.
¶ 1 Raven Resources L.L.C., its owner and managing member David A. Stewart, and his wife Terry Stewart (collectively, Raven) appeal the district court's August 1, 2008, order dismissing certain of Raven's claims against Legacy Bank (Bank).1 The appeal was assigned to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36(a)(2), 12 O.S.2001 and Supp.2003, ch. 15, app. 1.
¶ 2 Raven is an oil and gas company that maintained an account with Bank. Raven alleged that its ex-employee Michael Lee forged various documents, executed unauthorized checks on Raven's account, conducted unauthorized transactions through the Bank, and embezzled millions of dollars of Raven's money for his own use.2 Raven alleged Lee was able to do so only because of the negligence, fraud, or collusion of Bank and its employees.
¶ 3 Raven's petition describes the acts of Bank and its employees acting in concert with Lee that resulted in the loss for which it seeks to recover. Raven asserts thirteen "Claims for Relief" in support of its claim against Bank: (1) breach of contract; (2) facilitating forgery; (3) gross negligence; (4) facilitating fraud; (5) aiding and abetting conversion; (6) civil conspiracy; (7) violation of Uniform Commercial Code, 12A O.S.2001 § 4-401; (8) engaging in unsafe and unsound banking practices; (9) breach of implied covenant of good faith and fair dealing; (10) the need for a declaratory judgment of rights and obligations of certain promissory notes and mortgages; (11) the need for a declaratory judgment of rights and obligations regarding a certain revolving credit agreement; (12) violation of Oklahoma Banking Code, 6 O.S.2001 §§ 712-713; and (13) facilitating money laundering.3 Raven seeks actual and punitive damages, a declaration that certain debt instruments be declared void and statutory penalties.
¶ 4 Bank filed a motion to dismiss Raven's petition arguing various grounds. On August 1, 2008, the district court denied Bank's motion to dismiss the 2nd, 4th, 7th, 10th, and 11th grounds for recovery. The court granted Bank's motion with respect to Raven's 1st, 3rd, 5th, 6th, 9th, and 12th grounds for recovery finding that they were based on fraud and had not been pled with the required particularity but granted Raven leave to amend. The merits of this appeal concern the district court's dismissal of Raven's 8th (unsafe and unsound banking practices) and 13th (facilitating money laundering) grounds for recovery (collectively, the Banking Claims), on the basis that no private right of action existed to enforce these claims. The district court dismissed these claims without leave to amend presumably because it concluded that "the defect could not be remedied." 12 O.S. Supp.2004 § 2012(G). Consequently, the dismissal of the Banking Claims finally determined Bank's liability as to those grounds for recovery.
¶ 5 On August 14, 2008, prior to the deadline for amendment, Raven voluntarily dismissed without prejudice all grounds for recovery still pending in the district court, and all grounds for recovery the court had previously dismissed with leave to amend. Because Raven did not amend claims 1, 3, 5, 6, 9 and 12 within the time allowed by the district court, they would have been deemed to be dismissed with prejudice pursuant to section 2012. However, sub-paragraph (G) of section 2012 states that "within the time allowed by the court for filing an amended pleading, a plaintiff may voluntarily dismiss the action without prejudice." Consequently, Raven's voluntary dismissal before the amendment period expired avoided dismissal with prejudice of claims 1, 3, 5, 6, 9 and 12. Raven appeals the order dismissing its Banking Claims.
¶ 6 In every appeal, an appellate court is required to inquire into its jurisdiction. Broadway Clinic v. Liberty Mut. Ins. Co., 2006 OK 29, ¶ 25, 139 P.3d 873, 880; Cray v. Deloitte Haskins & Sells, 1996 OK 102, ¶ 7, 925 P.2d 60, 62. "Determination of jurisdiction is a question of law." State ex rel. Cartwright v. Okla. Ordnance Works Auth., 1980 OK 94, ¶ 4, 613 P.2d 476, 479. Further, appellate review of a motion to dismiss involves a de novo consideration as to whether the petition is legally sufficient. Indiana Nat'l Bank v. State Dep't of Human Servs., 1994 OK 98, ¶ 2, 880 P.2d 371, 375. Finally, a district court's construction of statutes also presents questions of law that are reviewed de novo. State ex rel. Okla. State Dep't of Health v. Robertson, 2006 OK 99, ¶ 5, 152 P.3d 875, 877; Fulsom v. Fulsom, 2003 OK 96, ¶ 2, 81 P.3d 652, 654.
¶ 7 The initial issue raised in this appeal is whether the district court's order dismissing Raven's Banking Claims, clearly interlocutory at the time it was entered, became appealable as a result of Raven's voluntary dismissal of all other claims. Bank's response to Raven's petition in error seeks dismissal of the appeal for lack of an appealable order.4 Bank argues that Raven's subsequent dismissal of all remaining claims cannot convert the interlocutory dismissal of the Banking Claims into an appealable order, and that order is not appealable unless certified by the district court for immediate appeal pursuant to 12 O.S.2001 § 994.5 The district court did not certify its order dismissing the Banking Claims for immediate appeal, and the record does not show that Raven requested such certification. Bank further contends that, if Raven's appeal is not dismissed, the district court's dismissal of the Banking Claims should be affirmed.
¶ 8 Bank's jurisdictional challenge raises an issue not previously decided in Oklahoma: whether a party may appeal an order that is not appealable when entered but becomes potentially appealable as a result of subsequent voluntary action by that party. This Court's jurisdiction is limited to appeals from judgments, 12 O.S.2001 § 952(a), final orders, 12 O.S.2001 § 952(b)(1), orders regarding provisional remedies, 12 O.S.2001 § 952(b)(2), certain interlocutory orders, 12 O.S.2001 § 993, interlocutory orders certified for appeal by the trial court, 12 O.S.2001 § 952(b)(3), and interlocutory orders in multi-party multi-claim cases certified for immediate appeal, 12 O.S.2001 § 994.6 When the district court's August 1, 2008, order dismissing Raven's Banking Claims was entered, it was not appealable because it satisfied none of these statutory requirements. Bank argues that Raven cannot make that order appealable by dismissing all of its remaining grounds for recovery.
¶ 9 As an initial matter, we note that Oklahoma jurisprudence has a long history of recognizing a plaintiff's right to control his or her own case. As early as 1932, the Oklahoma Supreme Court held:
If a litigant, by reason of the ruling of the trial court during the progress of the trial, feels that he has been prejudiced by such ruling, and by reason thereof has not been permitted to fully and fairly present his theory of the issues to the court or jury, he should have the unqualified right, such as was granted to him under the common law, to control his action and to dismiss without prejudice before the question is finally submitted to the court or jury.
Carpenter v. Renner, 1932 OK 487, ¶ 8, 158 Okla. 153, 12 P.2d 688, 689. See also Hubbard v. Hubbard, 1942 OK 210, 190 Okla. 679, 126 P.2d 524; Butler v. Prokop, 1958 OK 11, 321 P.2d 400. This common law principle has been codified, at least in part. Title 12 O.S. Supp.2004 § 683 provides that a plaintiff may dismiss without prejudice at anytime before final submission of the case to the judge or jury, and 12 O.S. Supp.2004 § 684 provides that a plaintiff may dismiss prior to trial on payment of costs or at anytime with the consent of all other parties. Bank's argument that Raven cannot appeal without the district court's certification pursuant to section 994 must overcome Raven's common law and statutory right to dismiss.
¶ 10 As previously stated, the issue raised by Bank's motion to dismiss has not been decided. Patmon v. Block, 1993 OK 53, 851 P.2d 539, however, decided an almost identical issue. Patmon sued two physicians, Drs. Block and Rahhal, for malpractice resulting from an abdominal surgery. The district court granted summary judgment in favor of Dr. Block on March 26, 1992. When that judgment was entered, 12 O.S.1991 § 1006, precluded an appeal without trial court certification of the need for immediate appellate review. The judgment in favor of Dr. Block was not so certified. On April 7, 1992, Patmon's remaining claim against Dr. Rahhal was dismissed without prejudice for failure to prosecute. Within thirty days from that dismissal, Patmon appealed the judgment in favor of Dr. Block.
¶ 11 On appeal, Dr. Block argued that the district court's dismissal of Patmon's remaining claim without prejudice did not render the prior judgment a final order because Patmon could still file a new action against Dr. Rahhal. Patmon at ¶ 8, 851 P.2d at 543. The Supreme Court rejected this argument holding that "an order of dismissal that terminates an action without prejudice is appealable even though a new suit might later be brought on the same claim...
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