Werdel v. State ex rel. Dep't of Pub. Safety

• Decision Date: 27 March 2015
• Docket Number: Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3. ,No. 113533.,113533.
• Parties: Brock A. WERDEL, Clark R. Chambers, Joseph E. Howard, Titus L. West, Jeffrey T. Graves, Joseph P. Wagner, Anthony J. Spigener, Michael A. Carroll, and Brent E. Shouse, for themselves and all others similarly situated, Plaintiffs/Appellants, v. STATE of Oklahoma, ex rel. DEPARTMENT OF PUBLIC SAFETY, Defendant/Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

359 P.3d 1163

2015 OK CIV APP 89

Brock A. WERDEL, Clark R. Chambers, Joseph E. Howard, Titus L. West, Jeffrey T. Graves, Joseph P. Wagner, Anthony J. Spigener, Michael A. Carroll, and Brent E. Shouse, for themselves and all others similarly situated, Plaintiffs/Appellants

v.STATE of Oklahoma, ex rel. DEPARTMENT OF PUBLIC SAFETY, Defendant/Appellee.

No. 113533.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3.

Court of Civil Appeals of Oklahoma, Division No. 3.

March 27, 2015.

Rehearing Denied May 15, 2015.

D. Bruce Edge, Edge Law Firm, Tulsa, Oklahoma, and John E. Hunsucker, Hunsucker Legal Group, and Richard D. Laquer, Oklahoma City, Oklahoma, for Appellants.

Kevin L. McClure, Assistant Attorney General, Oklahoma Attorney General, Litigation

Section, Oklahoma City, Oklahoma, for Appellee.

Opinion

LARRY JOPLIN, Judge.

¶ 1 Plaintiffs/Appellants Brock A. Werdel, Clark R. Chambers, Joseph E. Howard, Titus L. West, Jeffrey T. Graves, Joseph P. Wagner, Anthony J. Spigener, Michael A. Carroll, and Brent E. Shouse, for themselves and all others similarly situated (Plaintiffs), seek review of the trial court's order denying their motion for class certification, denying their motion for summary judgment and granting the motion for summary judgment of Defendant/Appellee State of Oklahoma, ex rel. Department of Public Safety (DPS), in Plaintiffs' action to expunge the records of their driver's license revocations and for restitution of the fees they paid to reinstate their driver's licenses. In this appeal, Plaintiffs assert the trial court erred as a matter of law and fact in denying their motion to certify the class action, in denying their motion for summary judgment and in granting the motion for summary judgment of DPS.

¶ 2 Plaintiffs commenced the instant action on behalf of themselves and others similarly situation, and alleged DPS had revoked their driver's licenses and required the payment of fees to reinstate their driver's licenses based on the deficient reports of the arresting officers for the offense of driving while under the influence of alcohol. Plaintiffs sought certification of a class composed of all others similarly situated, expungement of the records of their revocations and restitution of the fees they paid for reinstatement of their driver's licenses and installation of ignition interlock devices.

¶ 3 DPS filed a motion to dismiss. Defendant asserted that Plaintiffs had failed to state a plausible claim sufficient to support class action certification, and that, as a result of the agreed and unappealed final orders of the district courts sustaining the administrative orders of revocation of Plaintiffs' driver's licenses with modification, the doctrines of issue and claim preclusion barred Plaintiffs' challenges. The trial court denied the motion to dismiss, and deferred ruling on the motion to certify class pending a determination of the existence of a plausible class claim pursuant to 12 O.S. § 2023(B)(3).¹

¶ 4 DPS then filed its motion for summary judgment. DPS attached evidentiary materials demonstrating that Plaintiffs Werdel, Chambers, Howard, West and Graves executed consent judgments in the district courts agreeing to revocation of their driver's licenses with modification after administrative review, that they had discharged the period of revocation and that they had obtained reinstatement of their driver's licenses. DPS also attached evidentiary materials demonstrating that Plaintiffs Spigener, Shouse, and Carroll had either failed to exhaust, or had yet to exhaust, their administrative remedies, and that Wagner's revocation had been set aside, but that he had also pled guilty to two other alcohol-related driving offenses.

¶ 5 DPS first argued that it possessed the statutory authority to revoke the driver's license of a person arrested for driving under the influence upon the person's failure of, or refusal to take, a test for blood-alcohol pursuant 47 O.S. §§ 753 and 754. DPS consequently argued the complained-of deficiency in the notices of revocation, offered as support for the orders of revocation, which omitted the “sworn report from a law enforcement officer that the officer had reasonable grounds to believe the arrested person had been operating or was in actual physical control of a motor vehicle while under the influence of alcohol as prohibited by law” required by § 754(C), and noted by the Court of Civil Appeals in Tucker v. DPS, 2014 OK CIV APP 45, 326 P.3d 542, and Roulston v. DPS, 2014 OK CIV APP 46, 324 P.3d 1261, did not render its administrative orders revoking Plaintiffs' driver's licenses void and subject to vacation or expungement. DPS further argued that the exemption provisions of the Oklahoma Governmental Tort Claims Act, 51 O.S. §§ 151 et seq., § 155(2), (4), (5) and (12), absolved it from liability to repay the fees collected to reinstate the Plaintiffs' driver's licenses, or for damages related to the costs of installing ignition interlock devices paid to third parties, and further, because Plaintiffs paid the reinstatement fees without protest, 62 O.S. § 206 barred recovery of those fees.

¶ 6 Plaintiffs filed a motion for summary judgment and response to the motion for summary judgment of DPS.² Plaintiffs asserted that, according to the holdings in Tucker and Roulston, the orders revoking their driver's licenses were facially defective, void ab initio and subject to vacation at any time, that their failure to exhaust administrative remedies was consequently irrelevant, and for those reasons, the records of the revocations should be expunged. Further, said Plaintiffs, because the revocation orders were void, DPS should be held liable to repay the fees collected to reinstate their wrongfully revoked driver's licenses, as well as the fees paid for installation of ignition interlock devices as a consequence of the void revocation orders.

¶ 7 DPS filed a reply to Plaintiffs' motion for summary judgment. DPS argued the deficiency in the officers' affidavits recognized in Tucker and Roulston related solely to the evidence to support the revocations, not its authority to revoke, and that such deficiency rendered the revocation orders merely voidable and subject to attack only in a timely, direct appeal to the district court. DPS again argued the final orders of revocation with modification to which some of the Plaintiffs agreed precluded the instant challenges by force of res judicata.

¶ 8 On consideration of the parties' arguments and submissions, but without expressed findings of fact or conclusions of law, the trial court denied Plaintiffs' motion to certify the class action, denied the Plaintiffs' motion for summary judgment and granted the motion for summary judgment of DPS. Plaintiffs appeal, and the matter stands submitted on the trial court record.³

¶ 9 “Summary judgment is appropriate only where there are no material facts in dispute and the moving party is entitled to judgment as a matter of law.” Wathor v. Mutual Assur. Adm'rs, Inc., 2004 OK 2, ¶ 4, 87 P.3d 559, 561. (Citation omitted.) “Summary judgment settles only questions of law[,][and] [t]he standard of review of the questions of law is de novo. ” Lowery v. Echostar Satellite Corp., 2007 OK 38, ¶ 11, 160 P.3d 959, 963. (Citation omitted.) (Emphasis original.) “Where a controversy is resolved by summary judgment, the appellate courts review the entire summary judgment record independently and without deference to a lower court.” Id. “Summary judgment will be affirmed only if the appellate court determines that there is no dispute as to any material fact and that the moving party is entitled to judgment as a matter of law.” Id. “Summary judgment will be reversed if the appellate court determines that reasonable men might reach different conclusions from the undisputed material facts.” Id.

¶ 10 We first observe that a person arrested for operation of a motor vehicle while under the influence of alcohol or other intoxicating substance and served by the arresting officer with a notice and order of the revocation of his or her driver's license may seek administrative review of the order of revocation before a DPS hearing officer. 47 O.S.2011 § 754(D)–(G). The scope of the administrative hearing “shall cover the issues of whether the officer had reasonable grounds to believe the person had been operating or was in actual physical control of a vehicle upon the public roads, highways, streets, turnpikes or other public place of this state while under the influence of alcohol, any other intoxicating substance, or the combined influence of alcohol and any other intoxicating substance as prohibited by law, and whether the person was placed under arrest.” 47 O.S. § 754(F).

¶ 11 If dissatisfied by the administrative decision, an arrestee may seek further review in the district court by petition filed within thirty days of the administrative decision. 47 O.S. § 6–211. “[O]n district court review, DPS bears the burden of proof by a preponderance of the evidence.” Haley v. State ex rel. Dept. of Public Safety, 2005 OK CIV APP 82, ¶ 8, 123 P.3d 31, 34. And see, Andrews v. State ex rel. Dept. of Public Safety, 2014 OK CIV APP 19, ¶ 12, 320 P.3d 27, 29.⁴ “At a hearing on a revocation by the Department pursuant to the implied consent laws as provided in Sections 6–205.1, 753 and 754 of this title, the court shall not consider the merits of the revocation action unless a written request for an administrative hearing was timely submitted to the Department and the person actually exercised the opportunity to appear as provided in Section 754 of this title and the Department entered an order sustaining the revocation.” 47 O.S. § 6–211(F).

¶ 12 Thereafter, “[a]n appeal may be taken by the person or by the Department from the order or judgment of the district court to the Supreme Court of the State of Oklahoma as otherwise provided by law.” 47 O.S. § 6–211(M). “ ‘On appeal, we review the district...