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Helm v. Board of County Commissioners of Rogers County

Court of Appeals of Oklahoma, Division I

October 21, 2019

DEE ANN HELM, formerly known as Dee Ann Cramer, Plaintiff/Appellant,
v.
BOARD OF COUNTY COMMISSIONERS OF ROGERS COUNTY, OKLAHOMA, Defendant/Appellee.

          Mandate Issued: 11/14/2019

          APPEAL FROM THE DISTRICT COURT OF ROGERS COUNTY, OKLAHOMA HONORABLE SHEILA A. CONDREN, JUDGE

          Stanley D. Monroe, Ann E. Keele, MONROE & KEELE, PC, Tulsa, Oklahoma, for Plaintiff/Appellant,

          Thomas A. LeBlanc, Matthew B. Free, Jessica L. Johnson, BEST & SHARP, Tulsa, Oklahoma, for Defendant/Appellee.

          GOREE, CHIEF JUDGE

         ¶1 Dee Ann Helm (Plaintiff/Appellant) was employed by Rogers County as an administrative assistant. Rogers County terminated her employment and she filed a petition to recover unpaid wages and a penalty pursuant to 40 O.S.Supp. 2005 §165.3 of the Protection of Labor Act. The Board of County Commissioners of Rogers County (Defendant/Appellee) filed a motion to dismiss.

         ¶2 The County argued Helm's claim is barred by the Oklahoma Governmental Tort Claims Act because she did not comply with its notice provisions. The trial court agreed and granted the County's motion to dismiss for failure to state a claim. 12 O.S. §2012 (B)(6). Helm appealed. She argues the dismissal was erroneous because her action is contractual and the GTCA does not apply. We review the order de novo because a motion to dismiss tests the law governing a claim. Dani v. Miller, 2016 OK 35, ¶10, 374 P.3d 779, 785-86. The legal question is whether Plaintiff's claim is a tort within the meaning of 51 O.S.Supp. 2014 §152 (14).

         ¶3 "Tort" is defined by the GTCA as:

A legal wrong, independent of contract, involving violation of a duty imposed by general law, statute, the Constitution of the State of Oklahoma, or otherwise, resulting in a loss to any person, association or corporation as the proximate result of an act or omission of a political subdivision or the state or an employee acting within the scope of employment.

(§152(14), emphasis added.) Accordingly, we must examine the petition and analyze whether Helm is requesting relief, independent of contract, involving violation of a duty imposed by statute and within the meaning of the Governmental Tort Claims Act.

         ¶4 Helm's petition states, (1) she was an employee of the County, (2) her employment was terminated, (3) she had accrued unpaid personal and vacation leave for which she was not paid, and (4) pursuant to 40 O.S. §165.3, she is entitled to past-due wages and a statutory penalty of 2% per day. The action seeks damages based on statute. If §165.3 is a statutory tort within the meaning of §152(14) then the action could be governed by the GTCA.

         ¶5 The County correctly points out that the Legislature broadened the scope of the GTCA by adding torts that derive from statutes. A statutory tort is a legislatively-crafted, non-contractual duty, unknown to the common law, for the breach of which an action ex delicto, will lie. Morgan v. Galilean Health Enterprises, Inc., 1998 OK 130, ¶8, 977 P.2d 357, 361. A liability created by statute, however, is not necessarily a tort. Sweeten v. Lawson, 2017 OK CIV APP 51, ¶24, 404 P.3d 885, 892-93 (a claim for statutory replevin is not a tort pursuant to the GTCA); Barton v. City of Midwest City, 2011 OK CIV APP 71, ¶¶23-24, 257 P.3d 422, 426 (a statutory proceeding for inverse condemnation is not a tort as defined by 51 O.S. §152 (14).

         ¶6 Section 165.3(A) of the Protection of Labor Act requires an employer to pay the employee's wages after the employment terminates at the next regular pay period. An exception exists for a bona fide disagreement. If an employer fails to pay the wages, then the employer is liable for liquidated damages of two percent per day up to the amount of the unpaid wages. §165.3(B). [1] County's position is that the statute imposes an implied duty to pay undisputed wages at a designated time, and liability for breach of that duty. But these statutory rights directly relate to the employer-employee relationship and are not "independent of contract."

         ¶7 The employer-employee relationship is created by contract, either express or implied. Cherokee Lines, Inc. v. Bailey, 1993 OK 111, ¶13, 859 P.2d 1106, 1110. A claim for unpaid wages is a debt arising out of contract. Hamrick v. State ex rel. Office of the Chief Medical Examiner, 2011 OK 60, ¶12, 258 P.3d 509, 513 ...


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