PATTERSON v. BEALL

PATTERSON v. BEALL
2000 OK 92
19 P.3d 839
71 OBJ 3016
Case Number: 92399
Decided: 11/14/2000
Mandate Issued: 02/02/2001
Supreme Court of Oklahoma

JERRY PATTERSON, dba PATTERSON PEST AND WEED CONTROL, Plaintiff/Appellant
v.
LONNIE and BERNICE BEALL, Defendants/Appellees

ON CERTIORARI TO THE COURT OF APPEALS, DIVISION 4

¶0 A pest exterminator sued a real estate appraiser in the small claims division of the district court for $105.00 for breach of contract and for violation of the Oklahoma Consumer Protection Act. The appraiser then paid $105.00 to the pest exterminator and filed counterclaims. After permitting the parties to file motions for summary judgment the trial court resolved all the claims and counterclaims in such a way that neither party received anything else from the other. With respect to the pest exterminator's claim against the appraiser for violation of the Oklahoma Consumer Protection Act, the trial court granted summary judgment against the pest exterminator, concluding as a matter of law that the appraiser's alleged conduct, even if proven, was not deceptive and did not constitute a trade practice. The pest exterminator appealed. The Court of Civil Appeals, Division 4, affirmed and awarded the appraiser her appeal-related attorney's fees and costs. We previously granted certiorari.

THE OPINION OF THE COURT OF CIVIL APPEALS IS VACATED;
THE AWARD OF APPEAL-RELATED ATTORNEY'S FEES AND
COSTS IS VACATED; THE TRIAL COURT'S SUMMARY JUDGMENT
IS REVERSED AND THE CAUSE IS REMANDED FOR
FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

Justin LaMunyon, Faulkner Law Firm, Enid, Oklahoma, for Appellant.
Steven D. Singer, Enid, Oklahoma, for Appellees.

BOUDREAU, J:

[19 P.3d 841]

¶1 We are presented with two issues on certiorari. First, are summary judgment motions under Rule 13 of the Rules for District Courts of Oklahoma, 12 O.S. (1991), ch. 2, app. (Rule 13), inconsistent with the purpose of the Small Claims Procedure Act, 12 O.S. §§ 1751 et seq. - namely, the efficient and prompt disposition of small claims?1 We may review claims which relate to alleged deprivations of due process of law despite a failure to preserve error. Bottles v. State ex rel. Oklahoma State Bd. of Medical Licensure and Supervision, 1996 OK 59, ¶4 917 P.2d 417, 472; Pettit v. American Nat'l Bank, 649 P.2d 525, 529 (Okla. 1982). Second, does the appraiser's alleged conduct, if [19 P.3d 842] proven, constitute a deceptive trade practice or an unfair trade practice under the Oklahoma Consumer Protection Act, 15 O.S. (1991), §§ 751 et seq.?

¶2 We hold that summary judgment motions are inconsistent with the purpose of the Small Claims Procedure Act and that the real estate appraiser's alleged conduct, if proven, constitutes an unfair trade practice. We reverse and remand for further proceedings consistent with this opinion.

I
FACTS

¶3 Jerry Patterson, dba Patterson Pest and Weed Control (Mr. Patterson), performed a termite inspection for Lonnie and Bernice Beall (collectively, Mrs. Beall). Mr. Patterson billed Mrs. Beall $105.00. She refused to pay the bill because, according to her, she had not asked him to perform a termite inspection but rather had requested merely a free estimate. The dispute escalated. He filed a $105.00 lien against her property. She then asserted she had performed a real estate appraisal for him, demanded payment of $115.00 for the appraisal and attempted to file a $115.00 lien against his property. He denied having requested an appraisal and denied she had performed an appraisal for him. He complained about her to the Oklahoma Real Estate Commission. She complained about him to the Oklahoma Department of Agriculture. Both entities declined to pursue the complaints. He then sued her for $4,500.00 in the small claims division - for breach of contract ($105.00) and for alleged violations of the Oklahoma Consumer Protection Act. She filed counterclaims against him for $4,500.00 - for breach of contract ($115.00), for alleged violations of the Oklahoma Consumer Protection Act, for specific performance and to quiet title.

¶4 Mrs. Beall eventually paid Mr. Patterson $105.00 and both parties released their respective liens. Mrs. Beall also eventually voluntarily dismissed her Oklahoma Consumer Protection Act counterclaim against Mr. Patterson.

¶5 The trial court permitted the parties to file summary judgment motions. In a written order the trial court addressed all remaining claims and counterclaims. With respect to Mrs. Beall's counterclaims, the trial court concluded that the remedies of specific performance and quiet title are outside the scope of the Small Claims Procedure Act. The trial court then granted summary judgment against Mrs. Beall on her counterclaim for breach of contract. Mrs. Beall did not appeal from these adverse rulings.

¶6 With respect to Mr. Patterson's claims, the trial court found the parties settled Mr. Patterson's breach of contract claim when Mrs. Beall paid Mr. Patterson $105.00. The trial court then granted summary judgment against Mr. Patterson on his claim that Mrs. Beall violated the Oklahoma Consumer Protection Act. The trial court found that Mrs. Beall's alleged conduct was not deceptive and did not constitute a trade practice under the Oklahoma Consumer Protection Act. Mr. Patterson appealed.2

II
STANDARD OF REVIEW

¶7 We review the trial court's legal rulings de novo. Manley v. Brown, 1999 OK 79, 989 P.2d 448. De novo review requires an independent, non-deferential re-examination of another tribunal's record and findings.

III
SUMMARY JUDGMENT MOTIONS UNDER RULE 13
ARE INCONSISTENT WITH THE PURPOSE OF THE SMALL
CLAIMS PROCEDURE ACT - THE EFFICIENT AND
PROMPT DISPOSITION OF SMALL CLAIMS.
A
The Small Claims Procedure Act

¶8 The Small Claims Procedure Act, 12 O.S. (1991), §§ 1751 et seq. (the Act), [19 P.3d 843] provides a special procedure for certain actions where the amount of money sought to be recovered does not exceed four thousand five hundred dollars ($4,500.00).3 It provides an informal procedure "to facilitate the access of parties to simple, inexpensive and speedy justice." Johnson v. Scott, 1985 OK 50, 702 P.2d 56, 59. The unmistakable public policy goal of the Act is to provide small claims forums as "people's courts, uncomplicated by the formal demands of superior courts." Thayer v. Phillips Petroleum Co., 1980 OK 95, 613 P.2d 1041, 1044.4

¶9 In the interest of promoting the prompt and efficient disposition of small claims actions, the Act allows no formal pleadings other than a small claims affidavit and in some circumstances an answer.

¶10 The Act prohibits all depositions, interrogatories and all other discovery procedures except after judgment in aid of execution.

¶11 The Act mentions one pretrial motion only.

¶12 The Act does not allow new parties to be joined and it prohibits other parties from intervening in the action.

¶13 The Act requires that if either party desires a jury the party must notify the court clerk in writing at least two working days before the trial so as not to delay the trial.

B
Motions for Summary Judgment under Rule 13

¶14 Motions for summary judgment are governed by Rule 13 of the Rules for District Courts of Oklahoma, 12 O.S. (1991), ch. 2, app. The standard for a summary judgment specified in Rule 13 is that there is no [19 P.3d 844] substantial controversy as to any material fact as shown by the affidavits and discovery materials attached to the motion. Hamilton v. Allen,

¶15 Rule 13(a) allows a party to serve a motion for summary judgment anytime after the filing of the action, except that if the action has been set for trial the motion must be served at least twenty days before the trial date. The motion must be accompanied by a concise written statement of the material facts as to which the movant contends no genuine issue exists and must explain why the movant believes summary judgment should be granted. The statement must refer to evidentiary materials upon which the movant relies and copies of these materials must be attached to the statement. Rule 13(a). With the exception of affidavits, these materials almost always take the form of discovery responses such as excerpts of depositions, answers to interrogatories and to requests for admissions, and documents that have been produced in response to discovery requests. Id.

¶16 Rule 13(b) allows the opposing party an opportunity, within fifteen days after service of the motion, to serve upon the moving party and file with the court clerk a written statement in response to the motion. The response must include a concise written statement of the material facts as to which the opposing party contends there is a genuine issue and the reasons for denying the motion. Id. The written statement must set forth and number each specific material fact that is claimed to be in controversy and must include references to the specific pages and paragraphs or lines in the attached affidavits and discovery materials upon which the opposing party relies. Id.

¶17 Further, Rule 13(d) allows a party opposing a motion for summary judgment to seek a continuance by submitting an affidavit explaining why he or she cannot present facts essential to justify opposition to the [19 P.3d 845] motion. The trial court may order a continuance to permit the opposing party to obtain affidavits or to conduct additional discovery.

C
Analysis

¶18 "The primary goal of statutory construction is to determine legislative intent. That intent is to be ascertained from the statute in light of its general purpose and object. It is presumed that the Legislature has expressed its intent in a statute and that it intended what is so expressed." TXO Production Corp. v. Oklahoma Corp. Comm'n,

¶19 In our view motions for summary judgment under Rule 13 are inconsistent with the intent and purpose of the Small Claims Procedure Act - the efficient and prompt disposition of claims.

¶20 First, the application of Rule 13's timing requirements to small claims actions would encumber the very purpose of the act. The Act's timing requirements are designed with speed and efficiency in mind. The Act allows a small claims trial to be set as early as ten days after commencement of the action. Any trial setting between 10-20 days after commencement of the action would either preclude Rule 13 motions (since a Rule 13 motion must be filed at least 20 days prior to trial) or would require a continuance of the trial. Any trial setting within thirty days after commencement of the action would undoubtedly, in most instances, also require a continuance.

¶21 Second, the purpose of the Act is to create a simple, uncomplicated "people's court" in which the procedures are informal and the litigants do not need to hire lawyers. In contrast, the procedures of Rule 13 are more technical and complex. Few non-lawyer litigants embroiled in a dispute within the jurisdictional limitations of the small claims division are likely to be aware of Rule 13. It is even less likely that they would understand its timing requirements, its sufficiency requirements with respect to motions and responses, or the effect of not filing a response at all. A non-lawyer litigant faced with a motion for summary judgment is far more likely to need the services of an attorney.

¶22 Third, the Small Claims Procedure Act expressly prohibits discovery. In contrast, summary judgment motions almost always require the use of discovery materials.

¶23 Fourth, the Act relaxes the rules of evidence. In contrast, Rule 13 does not allow the rules of evidence to be relaxed. In order for material facts that are not controverted by the adverse party to be deemed admitted for the purpose of summary judgment, those material facts must be supported by admissible evidence. Rule 13(b).

¶24 Fifth, the maxim "expressio unius est exclusio alterius," that the mention of one thing in a statute impliedly excludes another thing, is used to determine legislative intent. PSO v. State ex rel. Corporation Commission,

¶25 Sixth, either party who desires access to the full panoply of pretrial motions has a method to avoid the limited procedures in the small claims division. A plaintiff may simply choose not to sue under the Act in the first instance. A defendant sued under the Act may move, pursuant to

¶26 In conclusion, we hold that motions for summary judgment under Rule 13 are inconsistent with the purpose of the Small Claims Procedure Act - the efficient and [19 P.3d 846] prompt disposition of claims - and are not applicable in small claims actions.

IV
THE OKLAHOMA CONSUMER PROTECTION ACT
A
Introduction

¶27 In the 1960's, individual states began to enact consumer protection laws designed to parallel and supplement Section 5 of the Federal Trade Commission Act, 15 U.S.C. §45(a)(1), which Congress adopted to protect citizens against unfair trade practices. See Leaffer and Lipson, Consumer Actions Against Unfair or Deceptive Acts or Practices: The Private Uses of Federal Trade Commission Jurisprudence,48 Geo. Wash. L.Rev. 521 (1980). These state laws, generally referred to as consumer protection acts or as unfair and deceptive trade practices acts, derived from various forms suggested to the states by the Federal Trade Commission (FTC) and the Commissioners on Uniform State Laws.

¶28 Oklahoma's Consumer Protection Act (OCPA) is codified at

¶29 Mr. Patterson contends the following conduct by Mrs. Beall violated the OCPA: (a) demanding payment for a real estate appraisal that he never requested and that she never performed and (b) filing a false, retaliatory lien against his property.

B
Private Right of Action under the Oklahoma Consumer Protection Act

¶30 The Federal Trade Commission Act does not provide for a private right of action. Nevertheless, most of the state consumer protection acts, including Oklahoma's, do. See National Consumer Law Center, Unfair and Deceptive Acts and Practices, app. A (4th ed.1997) (includes citations to and summaries of the states' consumer protection acts). The private right of action in the OCPA is found at 15 O.S. (1991), § 761.1.

¶31 The first element to be proved is that the defendant engaged in an unlawful practice under the OCPA. Unlawful practices are identified in § 753. Subsections (1)-(15) of § 753 declare a number of specific acts to be unlawful practices. Subsections (16)-(19) and (21)-(23) of § 753 refer to other Oklahoma statutes and declare violations of these statutes to be unlawful practices. Finally, pertinent to the instant case, subsection (20) is a catchall provision that declares unlawful the commission of any "unfair or deceptive trade practice as defined in section 752." The second element derives from the introductory phrase of § 753. It requires that the challenged practice must occur "in the course of the person's business." The third element, that the plaintiff as a consumer suffered an injury in fact, derives from § 761.1(A). This subsection gives a private right of action only to "an aggrieved consumer." It requires that an aggrieved consumer sustain damages as a result of the defendant's unlawful practice. The fourth element, causation, also derives from § 761.1(A). This subsection requires [19 P.3d 847] plaintiff to prove that his or her damages were caused by the defendant's unlawful practice.

¶32 A minority of states have adopted a fifth element - that the alleged unlawful practice affects the public interest. See, e.g., Hall v. Walter,

C
Does Mrs. Beall's Conduct, if Proven, Constitute an Unfair Trade Practice?

¶33 The trial court determined Mr. Patterson failed to establish the first element of his private right of action under the OCPA - an unlawful practice. The trial court concluded that Mrs. Beall's conduct, even if proven, did not violate the OCPA because the conduct did not constitute an unfair trade practice under the OCPA. We disagree.12

¶34 The OCPA defines an unfair trade practice as follows:

(12) "Unfair trade practice" means any practice which offends established public policy or if the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.

¶35 Whether alleged conduct constitutes an unfair trade practice under the OCPA is a fact question that the trial court must determine on a case by case basis. Under the unique circumstances of this case, we have no difficulty concluding that if Mrs. Beall demanded payment from Mr. Patterson for a real estate appraisal that was neither requested nor performed, and filed or attempted to file a false lien against Mr. Patterson's property, her conduct constituted an unfair trade practice as that phrase is defined in the OCPA.

¶36 Accordingly, we vacate the Court of Civil Appeals opinion, reverse the trial court's summary judgment against Mr. Patterson on his OCPA claim, and remand the case for further proceedings consistent with this opinion.

[19 P.3d 848]

V.

¶37 The Court of Civil Appeals awarded Mrs. Beall her appeal-related attorney's fees and costs. Since we vacate the Court of Civil Appeals' decision and reverse the trial court's judgment, we also vacate the award of appeal-related attorney's fees and costs. Thompson v. Independent School Dist. No. 94,

VI
SUMMARY

¶38 We hold that motions for summary judgment are inconsistent with the intent and purpose of the Oklahoma Small Claims Procedure Act and, therefore, summary judgment motions cannot be filed or considered in the small claims division of the district court. We further hold that if Mr. Patterson's OCPA claim is not otherwise precluded and if he proves Mrs. Beall's conduct as alleged, then Mrs. Beall's conduct constituted an unfair trade practice under the OCPA.

THE OPINION OF THE COURT OF CIVIL APPEALS IS VACATED;
THE AWARD OF APPEAL-RELATED ATTORNEY'S FEES AND
COSTS IS VACATED; THE TRIAL COURT'S JUDGMENT IS
REVERSED AND THE CAUSE IS REMANDED FOR
FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

¶39 Hodges, Lavender, Kauger, Watt, Boudreau, Winchester, JJ., concur; Summers, C.J., Hargrave, V.C.J., concur in part and dissent in part; Opala, J., dissents from the Court's opinion.

FOOTNOTES

The small claims division has power to hear claims for $4,500.00 or less, exclusive of costs and attorney's fees, in the following actions: (1) actions for the recovery of money based on contract or tort, including subrogation claims, but excluding libel and slander; (2) actions for replevin of personal property; and (3) interpleader actions.

a. A party may move for judgment in his favor on the ground that the depositions, admissions in the pleadings, stipulations, answers to interrogatories and to requests for admissions, affidavits, and exhibits on file, filed with his motion or subsequently with leave of court show that there is no substantial controversy as to any material fact.

The motion shall be accompanied by a concise written statement of the material facts as to which the movant contends no genuine issue exists and the reasons why summary judgment should be granted.

Reference shall be made in the statement to the pages, paragraphs and/or lines of the depositions, admissions, answers to interrogatories and to requests for admissions, affidavits, exhibits and other materials whether filed by the moving party or by the adverse party, and a copy of the material relied on shall be attached to the statement.

The motion may be served at any time after the filing of the action, except that, if the action has been set for trial, the motion shall be served at least twenty days before the trial date. The motion shall be served on the adverse party or parties and filed with the court clerk.

b. If the adverse party or parties wish to oppose the granting of the motion, they shall serve on the moving party and file with the court clerk within fifteen days after service of the motion a concise written statement of the material facts as to which he or they contend a genuine issue exists and the reasons for denying the motion. The adverse party shall attach to the statement affidavits and other materials containing facts that would be admissible in evidence, but the adverse party cannot rely on the allegations or denials in his pleading. In the statement, the adverse party or parties shall set forth and number each specific material fact which is claimed to be in controversy and reference shall be made to the pages, paragraphs, and/or lines of the depositions, admissions, answers to interrogatories and to requests for admissions, affidavits, exhibits and other materials whether filed by the moving party or by the adverse party, and he shall attach to the statement the portions relied upon. All material facts set forth in the statement of the movant which are supported by admissible evidence shall be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the adverse party which is supported by admissible evidence. If the motion for judgment is granted, the party or parties opposing the motion cannot on appeal rely on any fact or material that is not referred to or included in the statement in order to show that a substantial controversy exists.

* * *

d. Should it appear from an affidavit of a party opposing the motion that he cannot for reasons stated present facts essential to justify his opposition, the court may deny the motion for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

* * *

Rule 13 of the Rules for District Courts of Oklahoma, 12 O.S. (1991), ch. 2, app.

ch. 161, §2.

OPALA, J.,

¶1 The court vacates today the Court of Civil Appeals' opinion, reverses summary judgment entered in a small claim as impermissible in the context of the Small Claims Procedure Act

¶2 While I do not recede from the court's disposition, I cannot join its hyperglobal pronouncement that ignores the much narrower issues presented by the record. The question the court invoked sua sponte for today's reversal and now answers whether summary process can be fitted into the legislatively crafted scheme of procedure for small-claims litigation is a pure exercise in supererogation

I
THE ANATOMY OF LITIGATION

¶3 Jerry Patterson d/b/a Patterson Weed and Pest Control [Patterson or exterminator] brought a claim against Lonnie and Bernice Beall [collectively called Beall or appraiser] for breach of contract and for violation of the OCPA.

II

TODAY'S PRONOUNCEMENT IS HYPERGLOBAL AND TOTALLY
DETACHED FROM THE CONSTRAINTS OF THE RECORD

¶4 The court's absolute ban of summary process from small-claims litigation is overbroad. It extends beyond the issues presented by the record.

¶5 The appraiser sought summary relief from the exterminator's small claim and later pressed her own counterclaim. The exterminator (a) challenged the appropriateness of summary disposition based on his belief that the record presented disputed fact questions and (b) himself sought summary relief from the appraiser's counterclaim. Neither party argued below that summary relief constitutes process inappropriate for use in small claims. Instead, both "expressly agreed that any litigant . . . shall be free to file dispositive pre-trial motions. . . ."

¶6 From a footnote comment in the exterminator's 19 May 1998 motion for summary judgment on the appraiser's counterclaim (cum response in opposition to the appraiser's renewed motion for summary judgment on exterminator's claim), the court takes a giant leap to conclude that the exterminator broadly challenged below, on due process grounds, the use of summary process in a small claim.

¶7 Today's broad pronouncement unqualifiedly condemning summary process' [19 P.3d 851] use in small claims is clearly unwarranted by the record.

III
THE USE OF SUMMARY PROCESS RECEIVING TODAY'S SUA SPONTE BLANKET CONDEMNATION IS BANNED UPON A REVERSAL THEORY THAT WAS NOT URGED IN THE TRIAL COURT

¶8 An appellate court's jurisprudential gloss upon an issue not tendered by the aggrieved party for the judgment's reversal represents no more than gratuitous commentary and an exercise in futility.

¶9 Simple prudence dictates that we eschew from reaching today either directly or by dicta the purely abstract question of whether summary process is to be entirely banished from small-claims litigation.

IV

NO TENABLE LEGAL BASIS EXISTS FOR BARRING
LITIGANTS' ACCESS TO SUMMARY PROCESS

¶10 Today's rigid approach to the small-claims regime is ill-advised and short-sighted. The question is not how neatly summary process can be fitted into the statutory scheme of procedure for small-claims litigation, but whether there is a constitutional or statutory command for excluding summary process from small claims. This record is barren of any tenable legal ground for globally depriving litigants of access to the valuable mechanism that summary relief affords. Summary process (a) is not condemned by the legislature, (b) if properly applied, bears no characteristics injurious to fair and orderly procedure, and (c) poses no incongruity with the minimum standards of due process.

A.
The Small Claims Procedure Act Affords No Basis For
An Across-the-board Condemnation of Summary Process

¶11 The only expression in the Act to which one may point as perhaps inhospitable [19 P.3d 852] to summary relief is that which prohibits discovery.

¶12 Today's rigidity in construing the Act not only places undue constraints on the use of summary process, it also fails to examine the philosophical underpinnings that make small claims a distinct class of litigation.

B.
Rule 13 Does Not Bar Small-Claims Litigants from Access to Summary Process

¶13 Summary process at nisi prius is governed solely by Rule 13.

¶14 The statutory time limits for bringing a small claim and for pressing summary [19 P.3d 853] relief do not raise an insurmountable barrier to this conclusion. Judges who hear small claims are clearly in charge of their dockets and may, if necessary, enlarge the statutory time limits to accommodate a nondilatory quest for summary relief.

¶15 No litigant should be denied access to summary relief unless the use of that process is banned by the constitution or by an enactment that will pass fundamental law's muster. Since no such barriers are present here, today's hyperglobal pronouncement is utterly unwarranted.

V
THE RULE OF EXPRESSIO UNIUS EST EXCLUSION ALTERIUS
IS INAPPLICABLE IN DETERMINING THE APPROPRIATENESS
OF SUMMARY PROCESS IN THE CONTEXT OF
SMALL-CLAIMS PROCEDURE

¶16 The general rule that the express mention of one matter excludes other similar matters that are not mentioned

¶17 The Small Claims Procedure Act's reference, in

VI
TODAY'S ABSOLUTE EXCLUSION OF SMALL-CLAIMS LITIGANTS
FROM THE BENEFIT OF SUMMARY PROCESS OFFENDS
THE EQUAL PROTECTION CLAUSE

¶18 Absolutely excising from the benefits of summary process every small-claims litigant, including even those who need not resort to discovery, is no less offensive to the Equal Protection Clause than subjecting prisoners to a different mode of trial (nonjury) for mental-health commitment from that which is accorded other persons.

¶19 A party litigant cannot be deprived of a valued procedural device, otherwise available in the district court to other litigants, unless the exclusion bears a rational relationship to the legitimate objective to be attained. The remedial objective of small-claims procedure is to prevent delay and foster expeditious decision-making.

¶20 Summary relief clearly is compatible with the speed factor that is legislatively infused. Its purpose is to eliminate the delay and the expense of a needless trial where there is no material fact issue to be examined.

¶21 No delay component was present in this case. Both parties pressed for summary judgment in an effort to avoid a needless trial on the claim pressed by the other. Neither party sought discovery. Summary judgment was resisted by the exterminator on the contention that fact issues made its application impermissible. The appraiser's counterclaim was summarily disposed of without the necessity of trial. On this record, today's hyperglobal jurisprudential treatment is plainly injurious to the bench and bar. It lures practitioners as well as judges into a false sense of security by not affording them an in-depth examination into the fundamental law's impact on the court's blanket condemnation of summary relief, total or partial.

VII
THE PROCEDURAL UNIFORMITY COMMANDED BY ART. 5, § 46,
OKL.CONST.,

¶22 Today's pronouncement is insensitive to the constitutional norms of uniformity and symmetry. Art. 5, § 46, Okl. Const., mandates, in absolute terms, statewide procedural uniformity for an entire class of similarly situated persons or things.36 Its relevant terms expressly prohibit the legislature [19 P.3d 855] from regulating court procedure by disuniform rules.37 Although directed to the legislature, the terms of § 46 are equally binding on the judiciary.38 This court's own jurisprudence, no less than the legislature's enactments, must faithfully conform to the fundamental law's prohibition against disuniform laws on prohibited subjects.39 Judicial procedure is a subject explicitly protected from legislative invasion by asymmetrical regulation and hence also from the court_injected genre of disuniformity.

¶23 Today's across-the-board removal of small claims from the range of permissible summary-relief use destroys the symmetry of Oklahoma's summary-process regime and offends the uniformity_of_procedure mandate of § 46. The court's overbroad pronouncement denies all small-claims litigants that fundamental fairness in litigation process which is available to other suitors. Even if Rule 13 did explicitly bar summary judgments in all small claims thus including those claims in which that relief could be pressed, in whole or in part, without resort to discovery the breadth of its prohibitory scope would violate the norms of § 46. By today's pronouncement, which sua sponte singles out all small-claims litigants who need no discovery for less favorable treatment, the court destroys the very fabric of uniformity that the constitution commands.

VIII
SUMMARY

¶24 Today's overbroad pronouncement, in which the court, acting sua sponte, takes summary process out of the small-claims procedure under all circumstances, is obiter dictum rank jurisprudential ballast of no efficacy. No litigant below or on appeal pressed for that relief. To the contrary, summary process was invoked below by the parties' agreement to seek summary relief by their separate quests to escape liability on the claim pressed by the other. The court today goes far beyond what is necessary to decide the case before it.

¶25 There is no basis for the myopically simplistic and excessively rigid notion that in small claims relief by summary process must be declared unauthorized. This view finds no support in the constitution, the state statutes or in the court rules. The purpose of summary process, wherever invoked, is that of accelerating a claim's disposition by isolating, in advance of trial, issues not in controversy and by screening out questionable or spurious claims and defenses. Today's overbroad and absolute ban is inconsistent with the Act's declared legislative objective. It also contravenes due process and equal protection norms as well as the procedural symmetry mandated by Art. 5, § 46, Okl.Const.

¶26 On this record, I would leave undisturbed the trial court's utilization of party-initiated summary process (which neither of them attacked below as unauthorized for small claims); I would reverse summary judgment as impermissible for this case and direct that the cause stand remanded for further proceedings to be conducted in the first-instance court.

FOOTNOTES

7There was no attempt below at discovery by either litigant. All the evidentiary materials attached to their separate motions and responses were secured otherwise than through discovery.

8The nisi prius court ruled as a matter of law that the OCPA could not be invoked in the parties' claims because (a) the appraiser's actions were neither deceptive nor an unfair trade practice within the meaning of the OCPA and (b) the appraiser had no counterclaim for breach of the OCPA as a result of her "earlier dismissal" of that demand. The trial court also determined that the appraiser's quest for specific performance and quiet title was beyond the parameters of a small claim. According to the trial court, there were no longer any issues to be tried because (a) the appraiser had paid the exterminator's termite inspection bill, (b) both liens (the exterminator's and appraiser's) had been released and (c) neither party had shown any other money damages.

9Where a motion to dismiss tenders for consideration materials dehors the pleadings, summary judgment procedure must be used and the resultant ruling be considered dispositive of summary relief quest. 12 O.S.1991 § 2012(B). See in this connection Ouellette v. State Farm Mut. Auto. Ins. Co., 1994 OK 79, ¶ 6, 918 P.2d 1363, 1365 n.10; Dyke v. Saint Francis Hospital, Inc., 1993 OK 114, ¶ 7, 861 P.2d 295, 299; Norman v. Trison Development Corp., 1992 OK 67, ¶ 4, 832 P.2d 6, 8; Silver v. Slusher, 1988 OK 53, ¶ 6, 770 P.2d 878, 881 n. 8.

10See in this connection Richard B. Cappalli, supra note 4 at p. 37, § 3.13(b) (Broad Formulations):

Frequently the precedential court will fly far beyond the case facts before it and its reasoning on those facts by stating a holding of great generality.104 . . . A "holding" of great generality will necessarily emanate from a specific factual context a particular judicial actor at a specific jurisdictional level performing a certain act, etc. and this narrow factual context confines the breadth of the precedent, regardless of the writer's bold attempt, in the methods of the common law.

(emphasis supplied).

In footnote 104, § 3.13(b), at p. 37, supra note 4, Prof. Cappalli observes that overly broad formulations violate the "Wambaugh dictum that courts articulate the narrowest rule that justifies the decision," citing Charles W. Collier, Precedent and Legal Authority: A Critical History, 1988 Wis. L.Rev. 771, 775-76 (1988)(where Collier discusses Eugene Wambaugh, The Study of Cases: A Course of Instruction (1894)). Cappalli points out that "Justice Powell has criticized Justices for writing more broadly than necessary to decide the particular facts and issues, thereby ‘creat[ing] incentives for future attacks on the Court's opinions,'" Id. at 37, quoting Lewis F. Powell, Jr., State Decisis and Judicial Restraint, 47 Wash & Lee L. Rev. 281, 288 (1990).

11The "RECITATION OF AGREEMENT and ORDER" (entered 28 April 1998) states in part:

"NOW ON this 16th day of April, 1998 comes on for scheduling review the above captioned matter. The parties each appear by way of their undersigned attorneys and announce to the Court that notwithstanding any statutory o[r] decisional law to the contrary, it is expressly agreed that any litigant herein shall be free to file dispositive pre-trial motions in this matter ... IT IS THEREFORE ORDERED, ADJUDGED and DECREED that the parties herein shall be allowed to file any and all pre-trial motions...."

(emphasis added).

12Exterminator's supplemental certiorari brief at pages 15 and 19.

13Non_jurisdictional issues, raised for the first time on rehearing or on certiorari, are generally unfit for review. See in this connection Halliburton Oil Producing Co. v. Grothaus, 1998 OK 110, ¶ 23, 981 P.2d 1244, 1253; City of Oklahoma City v. State ex rel. Oklahoma Dept. of Labor, 1995 OK 107, ¶ 4, 918 P.2d 26, 32 (supplemental opinion on rehearing); First Federal Sav. and Loan Ass'n v. Nath, 1992 OK 129, ¶ 10, 839 P.2d 1336, 1342.

14The exterminator states at page 8 of his brief: "Plaintiff has never received an appraisal from Defendants.1" In footnote 1 he states: "Without the benefit of discovery, Plaintiff is unable to compel production of documents from Defendants, nor submit Defendants to a deposition or interrogatories. Pursuant to Rule 13 of the Rules for District Courts, parties can rely on depositions, admissions in the pleadings. stipulations, answers to discovery, affidavits and exhibits to either request or oppose summary judgment. Because we are within the small-claims procedure, only affidavits and exhibits are available. It seems then, that procedural due process would at least limit the consideration of these matters to purely questions of law and not questions of fact or mixed questions of law or fact."

15In discussing the impact of dicta, Professor Cappalli, supra note 4 at p. 39 § 3.14(b), states:

Another powerful tool in the grasp of the precedential court is to state the "law on issues and facts not before it. Here is the dramatic distinction between legislatures and courts. All "law" is potentially before the former; this is the lawmaking body supreme. It simply writes the laws it wants. The latter, the courts, have no such liberty. Their power is confined by the needs of the controversy before them. They can only issue the law necessary to decide that dispute. Any pronouncements beyond that need carry no badge of authority.

(emphasis added).

16Bane v. Anderson, Bryant & Company, 1989 OK 140, ¶ 33, 786 P.2d 1230, 1237; Mills v. Mills, 1973 OK 74, ¶ 32, 512 P.2d 143, 151.

17Hughey v. Grand River Dam Authority, 1995 OK 56, ¶ 10, 897 P.2d 1138, 1143_1144 (1995); Northeast Okl. Elec. Corp., Inc. v. Corporation Com'n, 1991 OK 28 ¶ 7, 808 P.2d 680, 683 n. 7; Westinghouse Elec. Corp. v. Grand River Dam Auth.,1986 OK 20, ¶ 17, 720 P.2d 713, 718. "Every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law but govern and are qualified by the particular facts of the case in which such expressions are to be found." (Emphasis added.) Lord Halsbury's famous passage in Quin v. Leathem [1901] A.C. 495 at p. 506, quoted in Cross, Precedent in English Law, supra note 4 at 37.

18Wright v. Grove Sun Newspaper Co., Inc., 1994 OK 37, ¶ 18, 873 P.2d 983, 992; Willis v. Nowata Land and Cattle Co., Inc., 1989 OK 169, 789 P.2d 1282, 1286-1287.

19The pertinent terms of 12 O.S.1991 § 1760 are:

* * * No depositions shall be taken or interrogatories or other discovery proceeding shall be used under the small claims procedure except in aid of execution. No new parties shall be brought into the action, and no party shall be allowed to intervene in the action.

(emphasis added).

20Copeland v. Tela Corp., 1999 OK 81, ¶ 4, 996 P.2d 931, 932; Wynn v. Avemco Ins. Co, 1998 OK 75, ¶ 24, 963 P.2d 572, 576; Union Oil Co. vo California v. Bd. of Equalization of Beckham County, 1996 OK 40, ¶ 10, 913 P.2d 1330, 1333; Reams v. Tulsa Cable Television, Inc., 1979 OK 171, ¶ 9, 604 P.2d 373, 376.

21What may be regarded as dilatory in summary relief process is not the motion for summary disposition but the need for discovery. When that need is absent because the materials are readily available or the discovery to be sought can judicially be confined to a manageably microscopic dimension, the underlying policy of the law should not be viewed as incompatible with relief by summary process.

22See, e.g., McCreery v. Eli Lilly and Co., 87 Cal. App. 3d 77, 87, 150 Cal. Rptr. 730, 736 (1978); Baron v. Mare, 47 Cal. App. 3d 304, 307, 120 Cal. Rptr. 675 (1975).

23Rule 13 (Summary Judgment), Rules for District Courts of Oklahoma,12 O.S.Supp.1993, Ch. 2, App. 1. The 1984 Pleading Code (12 O.S.Supp.1984 §§ 2001 et seq.) contains no provision for regulation of summary dispositions either by judgment or by pre-trial elimination of uncontroverted issues. The Code's omission is indicative of legislative intent to leave summary relief to regulation by the Supreme Court's rule-making. The Committee Comment to 12 O.S.Supp.1984 § 2012 states in pertinent part that "...[t]he essential function of permitting the summary disposition of cases that do not involve any substantive dispute that justifies a full trial can be effectively handled under the summary judgment procedure of Oklahoma District Court Rule 13 . . ."

24See Patel v. OMH Medical Center, Inc., 1999 OK 33, ¶ 18, 987 P.2d 1185, 1193 (emphasis in original), which holds that Rule 13 is not applicable to postjudgment proceedings. By its very terms Rule 13 applies to prejudgment issues only. Id. at ¶ 18, at 1193. Unlike today, the court in Patel found no legal impediment to the use of summary process in any postjudgment vacation proceedings. Today's opinion should have, at a minimum, followed the wisdom of that precedent to encourage, for use in small claims, the Patel-approved mini-summary process, crafted there for application dehors the Rule 13 procedure, "to eliminate from adversary contest any individually and clearly defined fact issue that is claimed to be undisputed and shown to be supported solely by inferences consistent with the movant's position in the case." Id. at ¶ 18, at 1193 (emphasis in original).

25Hambright v City of Cleveland, 1960 P.2d 184, 360 P.2d 493, 496.

26The terms of 12 O.S.Supp.2000 § 1767 (effective 7 June 2000) are:

The date for the appearance of the defendant as provided in the order endorsed on the affidavit shall not be more than sixty (60) days nor less than ten (10) days from the date of the order. . . .

A. On motion of the defendant, a small claims action may, in the discretion of the court, be transferred from the small claims docket to another docket of the court; . . .

(emphasis supplied).

* * * The hearing and disposition of such [small claim] actions shall be informal with the sole object of dispensing speedy justice between the parties.

(emphasis supplied).

35The pertinent terms of Art. 5, § 46, Okl. Const., are:

The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing * * *

Regulating the practice

(emphasis added).