SHOLER v. STATE OF OKLAHOMA DEPARTMENT OF PUBLIC SAFETY

SHOLER v. STATE OF OKLAHOMA DEPARTMENT OF PUBLIC SAFETY
1997 OK 89
945 P.2d 469
68 OBJ 2332
Case Number: 83504, 83505
Decided: 07/01/1997
Supreme Court of Oklahoma

MICHAEL SHOLER, SHARON MORALES, ANASTASIA E. DALTON, HAROLD E.KUYKENDALL, GREGORY LYNN PARHAM, WANDA JOHNSON, PATSY WEISS, CALVIN N. MCCASKELL, JR., KEVIN L. ARMSTRONG, and for themselves and all others similarly situated, Appellees/Counter-Appellants,
v.
STATE OF OKLAHOMA ex rel. DEPARTMENT OF PUBLIC SAFETY, DAVID R. MCBRIDE, Commissioner, Appellant/Counter-Appellee.

O R D E R

¶1 The Petition for Rehearing filed by the Appellant/Counter-Appellee is hereby granted for the limited purpose of addressing those arguments in the Court's Supplemental Opinion on Rehearing and is denied as to all other arguments.

¶2 DONE BY ORDER OF THE SUPREME COURT THIS 26TH DAY OF JUNE, 1997.

______________________

CHIEF JUSTICE

¶3 KAUGER, C.J., SUMMERS, V.C.J., HODGES, OPALA,

WILSON, JJ. - Concur

¶4 LAVENDER, SIMMS, HARGRAVE, WATT, JJ. - Concur in part and Dissent in part

[945 P.2d 478]

¶1 The Court's pronouncement holds that the Department of Public Safety's [DPS] procedure of charging and collecting multiple fees for the reinstatement of suspended drivers' licenses is an impermissible accounting procedure under the applicable statutes. The court (1) concludes that the plaintiffs' action for monies had and received is based on an obligation "implied in law" and (2) applies a three year statute of limitations. In disposing of the State's sovereign-immunity defense the court holds that the plaintiffs' claims [for monies had and received] (a) do not fall within the Governmental Tort Claims Act's [GTCA] definition of a tort claim and (b) are hence not barred because they are seeking a refund of monies overpaid the State as opposed to compensation for an agency's or employee's act or omission. By its opinion the court impliedly holds that the plaintiff's claims fall within the ambit of the sovereign-immunity waiver for actions alleging a breach of contract, first recognized in State Board of Public Affairs v. Principal Funding Corp., 542 P.2d 503, 506 (Okla. 1975). This is so even though that [945 P.2d 479] jurisprudence's guidelines for extending the waiver of sovereign immunity to contract claims are not met in this case.

¶2 Although I agree with the result reached by the court's pronouncement, I rescind from the court's decision that three years is the applicable limitation period. While I would allow the plaintiffs' action to prevent the State's unjust enrichment, I would hold that the common-law principles which undergird their claims lie in the substantive law of restitution. Although quasi-contractual precepts are a part of the common law of restitution,1 not all restitutionary actions are properly classified as contractual in nature.2 Such is the case here. Recognizing the plaintiffs' claims are restitutionary in character, I would grant a waiver of the State's sovereign immunity to their action and apply a five-year statute of limitation.3

I

THE RELIEF AWARDED TO THE PLAINTIFFS BY THE DISTRICT COURT RESTS NEITHER IN THE LAW OF TORTS NOR CONTRACTS BUT INSTEAD IS A COMMON-LAW RESTITUTIONARY REMEDY AVAILABLE AT LAW TO PREVENT UNJUST ENRICHMENT

¶3 The plaintiffs' action - for money had and received - lies not in the law of contract or tort but rather in the substantive law of restitution.4 Unlike the common law of contracts, which protects the fulfillment-of-expectation interest, and the law of torts, which protects the plaintiff from wrongfully inflicted harm, restitutionary remedies are designed to guard against unjust enrichment. In their action the plaintiffs do not seek the return of the earlier paid reinstatement fee. Rather, they seek a money judgment for that part of the charges exacted by DPS which were in excess of the fees allowed by statute. It is this fragment of the assessed sum which unjustly enriches the State at the expense of the reinstated driver.

¶4 Under the facts presented by the record the State is unjustly enriched by its use of improper accounting principles in computing the reinstatement fees owed by suspended drivers - without having committed any other civil wrong. Certainly no contract can be implied from the disclosed facts. Recognizing this truth, the court requires the State to refund the overpayments based on an implied-at-law obligation. The remedy [945 P.2d 480] applied by the court is quasi contractual.5

¶5 Where, as here, the State's liability is predicated on a finding of unjust enrichment (and not an implied-in-fact contract between the parties), the law of restitution is substantive as distinguished from remedial.

¶6 In Principal Funding

II

COMMON-LAW SOVEREIGN IMMUNITY SHOULD NOT BAR RESTITUTIONARY ACTIONS

¶7 Since the plaintiffs' claim has its basis in the common-law of restitution, the State's immunity from suit is in issue.

¶8 Today, both legislatures and courts alike embrace the concept that citizens have a right to expect the same standard of honesty and fair dealing in their contact with the state or other political entities, which they are legally accorded in their dealings with other individuals. Reason no longer supports the use of sovereign immunity by the state to obtain unjust enrichment at the expense of a citizen.

FOOTNOTES

1 See Restatement of Restitution Part 1 The Right to Restitution (Quasi Contractual and Kindred Equitable Relief) (1937).

2 In assaying the applicable common-law principles George E. Palmer's statement in his treatise, The Law of Restitution (1978), is particularly insightful. There he stated:

Restitution based upon unjust enrichment cuts across many branches of the law, including contract, tort, and fiduciary relationship, but it also occupies much territory that is its sole preserve. [Emphasis added.]

3 The trial court applied the limitation period set forth in 95 O.S.Supp.1993 seventh whose pertinent terms provide:

Civil actions other than for the recovery of real property can only be brought within the following periods, after the cause of action shall have accrued, and not afterwards:

* * * * *

9. An action for relief, not hereinbefore provided for, can only be brought within five (5) years after the cause of action shall have accrued. [Emphasis added.]

4 An action for money had and received lies whenever one has money of another and no corollary right of retention. While the action is triable to a jury, it is controlled by principles of equity and fair dealing. Sarber v. Harris, 368 P.2d 93, 95 (Okla. 1962); Thurlwell v. Rabbit, 110 Okla. 285, 235 P. 923, 926 (1925). At the early common law an action for money had and received was one of the early common counts in general assumpit used by the common-law judges to remedy unjust enrichment. See George E. Palmer, The Law of Restitution Vol. 1, § 1.2 (1978) at 7-8, for a history of the evolution of quasi contractual actions as a means to enforce restitutionary claims. For a discussion of the origins and characteristics of restitution, see J. Cooke and D. Oughton, The Common Law Of Obligations 51-59 (2d ed. 1993). See also Palmer, supra at § 1.1; Andrew Kull, Rationalizing Restitution, 83 Cal. L. Rev. 1191 (1995). Restitution is one of the three principal strands of law which comprise the common law of obligations, the other two being contract and tort. Cooke and Oughton, supra at 59.

5 Quasi contracts "rest solely on a legal fiction." First Nat. Bank v. Matlock, 99 Okl. 150, 226 P. 328, 330-31 (Okla. 1924). They are not contracts but "are clothed with the semblance of contract for the purpose of the remedy. . . ." Id. at 331.

6 See Douglas Laycock, The Scope and Significance of Restitution, 67 Tex. L. Rev. 1283-85 (1989).

7 State Bd. of Pub. Affairs v. Principal Funding Corp., 542 P.2d 503, 506 (Okla. 1975).

8 Principal Funding, supra note 6 at 504.

9 See R. R. Tway, Inc. v. Oklahoma Tax Com'n, 910 P.2d 972, 980 (Okla. 1996); see also Clay v. Ind. School Dist. No. 1 et al.,935 P.2d 294, 302 (Okla. 1997).

10 Judicially recognized governmental immunity from claims resting on either the law of contracts or torts has earlier been abrogated. Where the State has entered into a valid contract and the requisite appropriations have been made, governmental immunity from suit has been waived to the extent of the contractual obligations. Principal Funding, supra note 6 at 506. The judicially crafted doctrine of governmental immunity from liability for wrongfully inflicted harm was rescinded by the holding of Vanderpool v. State, 672 P.2d 1153, 1156-57 (Okla. 1983).

11See Vanderpool, supra note 9 at 1155; see also Am. Jur. 2d States, Territories, and Dependencies § 99 (1974).

12Vanderpool, supra note 9 at 1157.