Tanique, Inc. v. State, 2004 OK CIV APP 73 (OK 9/24/2004)
| Decision Date | 24 September 2004 |
| Docket Number | Case Number: 99091 |
| Citation | 2004 OK CIV APP 73 |
| Parties | TANIQUE, INC., an Oklahoma corporation, and ROB COLLINS, Plaintiffs/Appellants, v. STATE OF OKLAHOMA, ex rel. Oklahoma Bureau of Narcotics and Dangerous Drugs, Defendant/Appellee. |
| Court | Oklahoma Supreme Court |
APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA, HONORABLE DANIEL L. OWENS, TRIAL JUDGE.
AFFIRMED
.
Michael Gassaway, Oklahoma City, Oklahoma, for Appellants.
Mark Lane, Oklahoma City, Oklahoma, for Appellee.
¶1 This appeal arises from a suit in which Tanique, Inc., and its employee, Rob Collins, allege that state law enforcement agents violated the plaintiffs' civil rights and committed various torts in obtaining and serving a search warrant for the business premises of Tanique, Inc. The plaintiffs' claims were largely based on (1) alleged falsehoods in the affidavit for search warrant, (2) alleged false statements made by the agents to customers of Tanique, Inc., and the news media concerning the products seized from the business premises of Tanique, Inc., and (3) alleged false statements that Mr. Collins was an "owner" of Tanique, Inc. Plaintiffs admit that the products named in the search warrant were on the business premises and were seized along with twenty-three, 100-count bottles of ephedrine tablets, a precursor controlled substance.
¶2 The district attorney charged Mr. Collins alone. In the course of the criminal proceeding, Mr. Collins moved to suppress the evidence obtained in executing the search warrant on the basis of alleged falsehoods in the affidavit for search warrant. However, Mr. Collins did not pursue this challenge to the warrant and, instead, accepted a plea bargain. He pled nolo contendere to a misdemeanor charge relating to the ephedrine that was openly displayed on the business premises. Mr. Collins did not appeal the judgment and sentence entered on the nolo contendere plea, nor seek habeas corpus relief to invalidate the conviction for the alleged falsehoods in the affidavit for search warrant.
¶3 Citing Mr. Collins' failure to pursue direct remedies of appeal or habeas corpus to invalidate his conviction, the State of Oklahoma sought a partial summary adjudication on his civil rights claim to the extent it was based on alleged falsehoods in the affidavit for search warrant. Citing Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364 (1994), the State argued that an action based on 42 U.S.C. § 1983 does not lie, if it would constitute a collateral attack on a final conviction. The trial court agreed and granted the State's request for partial summary adjudication in this regard.
¶4 Thereafter, the State sought a second summary adjudication that it was immune from liability for any civil rights claims by either Tanique, Inc., or Mr. Collins, as well as for the particular tort claims pled. In response to this request for summary adjudication both Tanique, Inc., and Mr. Collins conceded that the State was immune from liability on the civil rights claims, but argued that material issues of fact precluded summary adjudication of the tort claims. The trial court granted summary adjudication in favor of the State on both the civil rights claims and the tort claims. This appeal followed.
¶5 In their petition in error, Tanique, Inc., and Mr. Collins set forth only two issues for review on appeal:
1. Whether trial court erred in granting Summary Judgment on Plaintiff's cause of action grounded upon 42 U.S.C. § 1983.
2. Whether the trial court erred in granting the Defendant's Motion for Summary Judgment on all "state" causes of action when many substantive facts were in dispute.
We understand the first issue to refer to the first summary adjudication that foreclosed Mr. Collins from proceeding under § 1983 to the extent that such an action would amount to a collateral attack on the validity of his conviction. We understand the second issue to refer to the second summary adjudication finding that the State had immunity on the tort causes of action pled.
¶6 We find it unnecessary to decide the first issue because it deals with an interlocutory order that ruled Mr. Collins could not assert a civil rights claim against the State of Oklahoma as a collateral attack on the validity of his conviction. Any question about the correctness of this interlocutory order became moot when Tanique, Inc., and Mr. Collins (1) represented to the trial court that "only [their] Fifth Cause of Action is one predicated upon civil rights violations" and (2) conceded that "their Fifth Cause of Action against the State of Oklahoma should be dismissed."
¶7 To decide the second issue concerning the propriety of the summary judgment dismissal of plaintiffs' tort causes of action, we must examine each cause of action. The propriety of the summary judgment dismissal of a particular cause of action will depend upon whether the cause of action as pled constitutes a cognizable wrong and, if so, whether the State is liable for such a wrong under the Governmental Tort Claims Act, 51 O.S.2001 §§ 151 through 200.
¶8 The "First Cause of Action" was asserted by both plaintiffs. No particular wrong or cognizable tort was identified in the caption of the "First Cause of Action." However, in their response to the State's second motion for summary adjudication, the plaintiffs stated, "the First Cause of Action is predicated in Fraud not Civil Rights Violations." Plaintiffs characterized the wrong as "fraud upon the court."
¶9 The second and fourth claims for relief were asserted by Rob Collins only, and seek damages for intentional infliction of emotional distress, defamation and false light publicity. The third claim for relief was asserted by Tanique, Inc., and sought damages for tortious interference with contract. The sixth claim for relief was asserted by both plaintiffs and alleged civil conspiracy. As previously noted, the plaintiffs agreed to the dismissal of their fifth claim for relief alleging civil rights violations.
¶10 Review of these claims reveals that each asserts liability against the State of Oklahoma and the John Doe Agents individually. However, only the liability of the State of Oklahoma is at issue on appeal in light of the plaintiffs' failure to name and serve any individual agents prior to the summary judgment below and the dismissal of the John Doe agents from this suit at the initial stages of this appeal.
¶11 The case of Fehring v. State Insurance Fund, 2001 OK 11, ¶ 23, 19 P.3d 276, 283, addressed the scope of liability of the State of Oklahoma under the Governmental Tort Claims Act for torts by state employees. The court noted that the Governmental Tort Claims Act affirmed the State's sovereign immunity and waives such immunity only to the extent and in the manner provided in the Act. The court further observed that the legislature had expressly provided that the state shall not be liable for any act or omission of an employee acting outside the scope of employment. Under the Act, to be within the scope of employment, an employee must be acting in good faith. Id.
¶12 The Oklahoma Supreme Court concluded that the State incurs liability only when State employees are acting in good faith and retains immunity on a tort claim "when, in order to prevail on the particular tort claim sued upon, a plaintiff is required, as a matter of law, to show conduct on the part of a governmental employee that would mandate a determination the employee was not acting in good faith." Id. (citations omitted). The court further explained "that when, for viability, the tort cause of action sued upon requires proof of an element that necessarily exclude[d] good faith conduct on the part of governmental employees, there can be no liability against the governmental entity." Id. (citation omitted). The court went on to note that tort causes of action that have malice or recklessness as an essential element are not viable tort claims against the State. In particular, liability does not lie against the State for alleged intentional infliction of emotional distress.
¶13 The text of the "First Cause of Action" avers that the State agents "swarmed the location of Tanique, Inc., . . . pursuant to a search warrant obtained as a result of false testimony . . . creating a cause of action against the Defendants pursuant to Franks v. Delaware."1 The text also avers that the affiant falsely reported the presence of a controlled substance in a product the agent purchased from Tanique, Inc., without fully advising that the controlled substance can convert from a non-controlled substance ingredient in certain liquid matrices. The text further complains about the agent communicating alleged unreliable information or hearsay to connect another product to Tanique, Inc. According to the affidavit, this other product was given to the agent by the parents of an individual who said he bought the product at Tanique, Inc. The text similarly complains about the affiant not disclosing that the test report for this product also indicated that the controlled substance present in the product can convert from a non-controlled substance ingredient.
¶14 Having reviewed the summary judgment record and applicable law, we conclude that the trial court properly granted summary judgment in favor of the State of Oklahoma on plaintiffs' first cause of action for a number of reasons. We first note that Franks v. Delaware did not create or recognize a civil cause of action for falsehoods in an affidavit for search warrant, as plaintiffs contend. We have found no federal case that creates or recognizes a civil cause of action for falsehoods in an affidavit for search warrant independent of a suit under § 1983. Likewise, we have found no case from any jurisdiction that recognizes a civil cause of action for "fraud on the court" for falsehoods in an affidavit for search warrant....
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