Simington v. Parker
| Decision Date | 28 January 2011 |
| Docket Number | No. 107,454.,107,454. |
| Citation | 2011 OK CIV APP 28,32 IER Cases 206,250 P.3d 351 |
| Parties | Kenneth L. SIMINGTON, Plaintiff/Appellant,v.Linda PARKER, in her personal and official capacity, and the State of Oklahoma ex rel. Oklahoma Department of Rehabilitation Services, Defendants/Appellees. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Released for Publication by Order of the Court
of Civil Appeals of Oklahoma, Division No. 1.
Appeal from the District Court of Oklahoma County, Oklahoma; Honorable Patricia Parrish, Trial Judge.AFFIRMED IN PART, REVERSED IN PART AND REMANDED.Daniel J. Gamino, Daniel J. Gamino & Associates, P.C., Oklahoma City, OK, for Plaintiff/Appellant.Martha L. Kulmacz, Assistant Attorney General, Oklahoma Attorney General, Oklahoma City, OK, for Defendants/Appellees.WM. C. HETHERINGTON, JR., Presiding Judge.
¶ 1 Plaintiff Kenneth Simington appeals a trial court order granting the motion to dismiss filed by “Defendants Linda Parker and the Oklahoma Department of Rehabilitative Services (DRS)” based on the failure of Simington's petition to state a claim upon which relief can be granted pursuant to 12 O.S.2001 § 2012(B)(6). Based on the following reasons, we affirm the order as to DRS and Parker, in her official capacity, but reverse as to Parker, in her individual capacity.
¶ 2 On September 22, 2008, Simington filed a petition in Oklahoma County District Court, specifically pleading the torts of conversion, fraud/deceit, and intentional infliction of emotional distress against DRS and/or Linda Parker “in her official capacity and in her personal capacity.” On October 14, 2008, an assistant attorney general for the State of Oklahoma filed an entry of appearance and a motion to dismiss for “Defendants, Linda Parker and [DRS]” (collectively, DRS),1 arguing Simington has “an adequate statutory remedy” under the Oklahoma Personnel Act (OPA), 74 O.S.2001 § 840–1.1 et seq. and “is barred from bringing this suit” by McCrady v. Oklahoma Department of Public Safety, 2005 OK 67, 122 P.3d 473 ( McCrady I ) and Oklahoma Department of Public Safety v. McCrady, 2007 OK 39, 176 P.3d 1194 ( McCrady II ).
¶ 3 Simington objected to DRS's § 2012(B)(6) motion, arguing McCrady I and McCrady II do not apply because his case “is not wrongful discharge.” Expressly relying on McCrady I and McCrady II, the trial court granted DRS's motion to dismiss with prejudice on July 27, 2009. Simington's appeal from that order followed.
¶ 4 After the filing of DRS's Entry of Appearance and Response and the record completed, Simington filed a Brief in Chief. DRS moved to strike Simington's “Opening Brief,” arguing he failed to comply with Okla.Sup.Ct.R. 1.36 accelerated procedure for summary judgments and orders granting motions to dismiss for failure to state a claim. See 12 O.S.Supp.2004, ch. 15, app. 1. DRS argues the filing of briefs is not permitted by R. 1.36 unless ordered by the Court, and no such permission has been granted in this appeal. DRS also argues Simington did not prepare a record on appeal as required by R. 1.36, but does not seek any specific relief for this alleged non-compliance.
¶ 5 The Supreme Court ordered Simington to respond to DRS's motion to strike. In that response, Simington admitted R. 1.36 “covers appeals from motions to dismiss for failure to state a claim” and also “covers the record on appeal.” He justifies filing a brief under R.1.36(c)(B)(6) due to the trial court's express reliance on the aforementioned opinions and further claims the briefs were “submitted to aid the high court in reviewing this appeal.” Citing federal authority which holds rules of appellate practice are designed to protect the parties, and appellate courts may relax or modify their procedural rules, Simington requests this court to deny DRS's motion to strike and allow his Brief in Chief to stand.
¶ 6 By order filed March 25, 2010, the Supreme Court deferred consideration, if any, of DRS's motion to strike Simington's brief to this Court.2 Although we agree with DRS the record submitted to this Court was not prepared in accordance with R. 1.36(d) nor filed “at the same time as the petition in error” as required by R. 1.36(b), we note the record, which contains seven documents including the petition, otherwise complies with that rule as far as the instruments permitted to be included. Simington's argument regarding this Court's discretion is generally correct.
Compliance with [the Oklahoma Supreme Court Rules] is required. In case of failure to comply with any rule or order of the Court, the Court may continue or dismiss a cause, reverse or affirm the judgment appealed, render judgment, strike a filing, assess costs or take any other action it deems proper. Okla.Sup.Ct.R. 1.2.However, we may not ignore the standard of review for this appeal or R.1.36(g), which expressly provides, “[a]n appellate court shall confine its review to the record actually presented to the trial court.” Because this generally includes limiting the issues on appeal to those actually argued below, our review is limited to Simington's petition, Defendants' motion to dismiss and Simington's response to the dismissal motion, neither of which include any evidentiary material. Although DRS requests we strike only Simington's “Opening Brief,” all three briefs are stricken from the appellate record and will not be considered.
¶ 7 “The standard of review for an order dismissing a case for failure to state a claim upon which relief can be granted is de novo and involves consideration of whether a plaintiff's petition is legally sufficient.” Fanning v. Brown, 2004 OK 7, ¶ 4, 85 P.3d 841, 844. When reviewing a motion to dismiss, we must take as true all of the pleading's allegations together with all reasonable inferences which may be drawn from them. Id. “A pleading must not be dismissed for failure to state a legally cognizable claim unless the allegations indicate beyond any doubt that the litigant can prove no set of facts which would entitle him to relief.” Id. The party moving for dismissal pursuant to § 2012(B)(6) has the burden to show the legal insufficiency of the petition. Indiana National Bank v. State of Oklahoma, Dept. of Human Services, 1994 OK 98, 880 P.2d 371.
¶ 8 Under the “First Cause of Action—Conversion (76 O.S. § 6 and Common Law),” Simington makes the following allegations: He “was a career employee of Defendant DRS” and ranked as a Program Manager I. As “allowed by law to seek a higher position,” he filed an internal grievance, which “Defendant DRS and [Parker] opposed.” “On or around May 25, 2006, the Oklahoma Office of Personnel Management (OPM) formally reviewed [his] position and OPM ruled that his position was a Program Manager II,” to which new position “DRS was compelled to promote” him. Almost four months later, “Parker surreptitiously emailed” several OPM officers and colleagues to set up a meeting about Simington. Two business days after the meeting, one of the attending OPM officers advised “OPM would reconsider [his] promotion” and “internally reassigned the case and removed the case from normal channel and personnel of OPM.” “On January 5, 2007, OPM reversed its original decision” and “DRS subsequently demoted [him] to Program Manager I.” These same operative events are incorporated by reference in Simington's “Second Cause of Action—Fraud/Deceit (76 O.S.2001, § 1–3)” and his “Third Cause of Action—Intentional Infliction of Emotional Distress (76 O.S.2001, § 6 and Common Law).”
¶ 9 Specific to conversion, Simington alleges:
(1) “Defendant [Parker]” denied any knowledge of the emails and the meeting and denied him of any opportunity to appear;
(2) “[Parker], in her individual capacity, and in her official capacity as Executive Director of [DRS] acted willfully to violate Merit Rule 530: 10–5–58 and to take from [Simington] his allocated position of Program Manager II”; 3
(3) by “the aforesaid acts and omissions Defendant wrongfully and unlawfully exercised dominion and control over [Simington's] personality (sic) in denial of and inconsistent with [his] rights”; and
(4) “Defendant [Parker] individually and in her official capacity ... and Defendant DRS by the aforesaid intentional acts and omission caused [Simington] financial harm and detriment.”
¶ 10 As to fraud/deceit, Simington alleges “Parker, in her individual and official capacity ... willfully and deliberately while knowingly [withheld] knowledge from [Simington] of the truth” and “undertook ... the acts and omissions with the intention and purpose ... [to] cause [him] financial loss and detriment.” His claim of emotional distress against “Defendant [Parker]” states (1) her “acts and omissions” were “extreme and outrageous” and “unreasonable,” (2) were undertaken knowing [Simington] would suffer or was likely to suffer emotional distress or [she] acted with wilful disregard of injuries that [he] may suffer,” and (3) he “suffered physical injury as a direct result of [her] conduct, to include but not be limited to injuries to nervous system and mental pain, suffering and anguish.” At the end of his petition, Simington requests both “actual money damages,” damages for emotional distress, and punitive damages as relief from DRS and “Parker in her personal capacity and official capacity.”
¶ 11 According to DRS, Simington “claims that [his] demotion was initiated inappropriately by Parker and others and amounts to conversion, fraud/deceit and intentional infliction of emotional distress.” (Emphasis added.) Citing McCrady v. Oklahoma Department of Public Safety, 2005 OK 67, 122 P.3d 473 ( McCrady I ) for the proposition that “a classified employee, subject to the [OPA] could not bring a ‘ Burk ’ exception tort claim for wrongful termination” and “classified employees [have] an adequate remedy pursuant to the [OPA],” DRS argues ...
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