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Truel v. Andolini's, LLC

Court of Appeals of Oklahoma, Division IV

January 20, 2017

JOHN TRUEL, DIXIE M. EVANS, MARY ELLEN KIRKENDALL, JESSICA STERLING, ANDRA ERBAR, SHANA TRUEL, KARA M. SIMPSON, JAMES STERLING, and RENE A. CONNER, SUING INDIVIDUALLY AND ON BEHALF OF OTHER PERSONS SIMILARLY SITUATED, Plaintiffs/Appellees,
v.
ANDOLINI'S, LLC d/b/a ANDOLINI'S; BODEAN, INC.; BRADY TAVERN, LLC; CATERING CONNECTION, INC.; FOOD AND BEVERAGE IV, INC. d/b/a McGILL'S; McGILL'S 61st, INC.; McNELLIE'S, LLC; MEXICALI BORDER CAFÉ, INC. d/b/a MEXICALI BORDER CAFÉ & BAR; MIS EN PLACE, LLC d/b/a LUCKY'S RESTAURANT; and YOKOZUNA, LLC, Defendants/Appellants, and A. AGUIRRE LLC, et al., Defendants.

          Mandate Issued: 02/23/2017

         APPEAL FROM THE DISTRICT COURT OF CANADIAN COUNTY, OKLAHOMA HONORABLE GARY E. MILLER, TRIAL JUDGE

          Mark Henricksen, Lanita Henricksen, HENRICKSEN & HENRICKSEN LAWYERS, INC., Oklahoma City, Oklahoma, for Plaintiffs/Appellees

          John M. Hickey, HALL, ESTILL, HARDWICK, GABLE, GOLDEN & NELSON, P.C., Tulsa, Oklahoma, and Ashley R. Webb, RIGGS, ABNEY, NEAL, TURPEN, ORBISON & LEWIS, Tulsa, Oklahoma, for Defendants/Appellants

          JANE P. WISEMAN, JUDGE

         ¶1 Andolini's, LLC d/b/a Andolini's, Bodean, Inc., Brady Tavern, LLC, Catering Connection, Inc., Food & Beverage IV, Inc. d/b/a McGill's; McGill's 61st, Inc.; McNellie's, LLC, Mexicali Border Café, Inc. d/b/a Mexicali Border Café & Bar, Mis En Place, LLC d/b/a Lucky's Restaurant, and Yokozuna, LLC (collectively, Appellants), appeal a trial court order granting the motion to reconsider filed by John Truel, Dixie M. Evans, Mary Ellen Kirkendall, Jessica Sterling, Andra Erbar, Shana Truel, Kara M. Simpson, James Sterling, and Rene A. Conner, individually and on behalf of other persons similarly situated (collectively, Appellees) and vacating previous orders granting Appellants' motions to dismiss. After review, we conclude Appellants failed to show the trial court abused its discretion, and we affirm the trial court's decision to vacate the dismissals.

         FACTS AND PROCEDURAL BACKGROUND

         ¶2 According to Appellants' brief in chief, Appellees brought this action "against over 700 Oklahoma bars and restaurants to determine whether the methods those establishments used to advertise and solicit sales, and/or the billing methods they used to charge customers for such sales, of certain mixed drinks were contrary to law." Appellants assert that as a condition precedent to Appellees' lawsuit, they needed a declaratory ruling on their "proposed definition of 'advertised price' as contained in Title 37 O.S. § 576." The petitions were not included in the record on appeal. Appellants claim that they and other defendants filed motions to dismiss in which they argued "that the Oklahoma Tax Commission ('OTC') was a necessary party to any determination of what it's [ sic ] regulations meant." Appellants state, "This appeal stems from Appellants' argument that such joinder was mandatory and from [Appellees'] failure to address this argument to the Court."

         ¶3 Each Appellant filed a motion to dismiss on September 17, 2012, stating Appellees filed their original petition on February 16, 2011, filed an amended petition on or about August 5, 2011, seeking declaratory judgment, injunctive relief, certification of a class action, and damages for breach of contract, and filed a second amended petition on or about July 30, 2012, requesting declaratory judgment, injunctive relief, certification of a class action, and "claims based upon violations of the Oklahoma Consumer Protection Act ('OCPA'), breach of contract, bad faith or tortious breach of contract, deceit and misrepresentation, conversion, and unjust enrichment." Appellants argued in their dismissal motions:

[Appellees] seek to first have this Court make certain declaratory findings interpreting the rules and regulations promulgated by the Oklahoma Tax Commission ('OTC') related to the gross tax receipts and sales tax levied on the sale of certain alcoholic beverages. Without a favorable interpretation of the OTC's rules by the Court, [Appellees] will be unable to prevail on any of their claims, which are inherently tied to the proper method for calculating liquor and sales tax.

         Appellants maintained that if the court granted declaratory relief, Appellees would "attempt to certify a class action lawsuit against each individual Defendant for various claims based on the alleged collection of excess taxes on the sale of certain alcoholic beverages."

         ¶4 Appellants asserted multiple grounds for dismissal: (1) the trial court lacked subject matter jurisdiction to render a declaratory ruling on Appellees' tort claims; (2) Appellees lacked standing to request declaratory rulings pursuant to 37 O.S. § 576 (A), which does not create a cause of action for Appellees; (3) the OTC has primary jurisdiction; (4) Appellees failed to join an indispensable party--the OTC--pursuant to 75 O.S. § 306; (5) Appellees also failed to join the OTC as an indispensable party pursuant to 12 O.S. § 2019; (6) Appellees failed to join Tulsa County and the City of Tulsa; (7) Appellees failed to exhaust their administrative remedies; (8) "there is no private right of action to enforce tax collection laws"; (9) failure to state a claim on which relief could be granted; and (10) improper venue. Additionally, some Appellants claimed Appellees' "tort, penalty, and forfeiture claims are barred by the statute of limitations."

         ¶5 Appellees filed a combined objection to the motions to dismiss in which they stated that "the OTC has no interest which will be impaired by the relief [Appellees] seek here, and it is neither a necessary nor indispensable party." They claimed Appellants "have put forth no valid reason that the OTC needs to be joined in this lawsuit, either as a necessary nor especially as an indispensable party." Appellees argued that they "are not seeking a refund from the OTC."

         ¶6 Appellants replied that Appellees failed to address their argument that the OTC is a necessary party to this action pursuant to 75 O.S. § 306. In orders filed January 10, 2013, the trial court granted Appellants' motions to dismiss.

         ¶7 In their motion to reconsider the dismissal orders, Appellees stated that the orders were not mailed to them until January 21, 2013, and their motion to reconsider filed January 31, 2013, was therefore timely pursuant to 12 O.S. § 653. Appellees asserted they did address and respond to the question of OTC's joinder, both in their written responses and in oral argument before the trial court. They denied that 75 O.S. § 306 applied:

Section 306 simply does not apply in this instance, because as previously pointed out, [Appellees] have made no allegation whatsoever that they are harmed or even threatened by any administrative rule. Rather, [Appellees] have sued to enforce their rights against individual private parties, which rights come about in part pursuant to statute and applicable administrative rules. Thus, instead of challenging any rules, [Appellees] are relying upon them.

Appellees additionally argued that District Court Rule 4 did not require dismissal.

         ¶8 In their response, Appellants claimed they repeatedly notified Appellees that they failed to respond to Appellants' arguments regarding 75 O.S. § 306. Appellants contended, "Accordingly, it was entirely appropriate for the Court to determine that [Appellees] had conceded that the OTC was a required party under Section 306 and that, since it was not a party, dismissal on these grounds was appropriate." Appellants denied there were any irregularities in the proceedings and asserted Appellees' claims should be dismissed for failure to address 75 O.S. § 306.

         ¶9 At a hearing on their motion to reconsider, Appellees argued that the court had ruled the previous year that OTC was not an indispensable party. Appellees also claimed that the court addressed the issue at the ...


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