ROGERS v. QUIKTRIP CORPORATION (2010)

¶ 1 Two questions are pressed for review: (1) Did the trial judge err when he ruled that he had jurisdiction over this cause? and (2) Did the trial judge err when he ruled the defendants had a duty to disclose the presence of fuel additives in the gasoline offered for sale? We answer the first in the negative and latter in the affirmative.

I.

THE ANATOMY OF LITIGATION

¶ 2 In May 2008 Mark Rogers, Terry O'Rorke, and William Wilson (plaintiffs) brought a putative class action against Quiktrip Corporation, Love's Travel Stops and Country Stores, Inc., and 7-Eleven, L.L.C., (collectively called defendants or fuel sellers) urging the latter sold gasoline containing the additive ethanol without disclosing its content in the fuel sold to customers. The plaintiffs contend that defendants' failure to disclose the ethanol content of gasoline constitutes breach of contract, breach of express and implied warranties² and a violation of the Oklahoma Consumer Protection Act, 15 O.S. § 751 et seq.

¶ 3 The defendants moved to dismiss the action asserting (1) the petition failed to state a claim upon which relief could be granted and (2) the Oklahoma Corporation Commission (Commission) has exclusive jurisdiction over the dispute. The trial judge denied this motion. He ruled (1) the trial court had jurisdiction to entertain the cause and (2) the plaintiffs' theories of liability may be supported by the duty created by the terms of 52 O.S. § 391.³ The defendants moved to secure the trial judge's certification of the 4 December 2008 order which denied the defendants' motion to dismiss for immediate interlocutory review.⁴ They urge the issues presented affect the entirety of the merits of the controversy and an immediate appeal will advance the ultimate termination of the litigation. The trial judge certified his nonfinal ruling for appeal under the provisions of Supreme Court Rule 1.50.⁵ This court granted certiorari to review the certified interlocutory order.

II.

STANDARD OF REVIEW

¶ 4 When reviewing a trial court's dismissal of an action an appellate court examines the issues de novo.⁶ Motions to dismiss are generally viewed with disfavor.⁷ The purpose of a motion to dismiss is to test the law that governs the claim in litigation rather than to examine the underlying facts of that claim .⁸ A motion to dismiss for failure to state a claim upon which relief may be granted will not be sustained unless it should appear without doubt that the plaintiff can prove no set of facts in support of the claim for relief.⁹ When considering a defendant's quest for dismissal the court must take as true all of the challenged pleading's allegations together with all reasonable inferences that may be drawn from them.¹⁰ A plaintiff is required neither to identify a specific theory of recovery nor to set out the correct remedy or relief to which he (or she) may be entitled.¹¹ A quest for dismissal should be denied if relief is possible under any set of facts which can be established and is consistent with the allegations.¹² A petition can generally be dismissed only for absence of any cognizable legal theory to support the claim or for insufficient facts under a cognizable legal theory.¹³ Our recapitulation of the standards that govern when a court is called upon to rule on a motion to dismiss will guide today's review of this case.

III.

THE DISTRICT COURT HAS JURISDICTION OVER THIS CAUSE OF ACTION

¶ 5 The defendants first assert the plaintiffs' claims fall within the exclusive jurisdiction of the Corporation Commission and not of the district court. According to the defendants, the plaintiffs' claims do not deal merely with the adjudication of private rights between individuals. They are an inherent challenge to the public-policy determinations over which the Commission has exclusive jurisdiction.¹⁴ At the bottom of this cause, assert the defendants, is whether there existed at that time an industry-wide duty to disclose the ethanol content in motor fuel. They urge the plaintiffs seek legislation to be effected by litigation, in violation of the doctrine of separation of powers. The plaintiffs respond that because this dispute deals with private rights of litigants, not just public rights, the trial judge correctly determined that jurisdiction lies in the district court.¹⁵ To rule otherwise would offend the access-to-court provision of the Oklahoma Constitution.¹⁶

¶ 6 That the Commission is a tribunal of limited jurisdiction is well established in Oklahoma jurisprudence.¹⁷ It possesses only such authority as is expressly or by necessary implication conferred upon it by the constitution and statutes of Oklahoma.¹⁸ If no Commission jurisdiction stands expressly conferred or necessarily implied, either by the constitution or by statute, its order would be void. The function of the Commission is to protect the rights of the body politic; private rights and obligations of private parties lie within the purview of the district court.¹⁹ The Commission, although possessing many of the powers of a court of record, is without the authority to entertain a suit for damages.²⁰

¶ 7 The Commission is without authority to hear and determine disputes between two or more private persons or entities in which the public interest is not involved.²¹ The distinction between public and private rights is not always immediately transparent. Public rights, at a minimum, must arise between the government and others: the liability of one individual to another under the law as defined is a matter of private rights.²² We have also held questions in an action concerning the relationship of private parties, their duties, rights and obligations, and the existence of liability for the breach of such duties to be matters particularly with the province of the district court.²³

¶ 8 The plaintiffs' claims which stand presented here are of a private nature. They urge the defendants had both a contractual duty and a duty under the Oklahoma Consumer Protection Act to disclose the ethanol content of their fuel. These issues-the duties and obligations of the parties and the liability that exists for the breach of such duties-deal with private rights between these private parties. That the plaintiffs' claim is a putative class action alters neither the parties' nor the action's classification. Moreover, the plaintiffs seek compensation for the breach of these asserted duties. The Commission has no authority to award damages. This dispute is hence beyond the Commission's jurisdiction. It properly rests in the district court.

IV.

BECAUSE THE TERMS OF 17 O.S. Supp.2003 § 620 CONTROL THIS CONTROVERSY THE DEFENDANTS HAD NO DUTY BEFORE THE TERMS OF 52 O.S. Supp.2008 § 347 BECAME EFFECTIVE TO DISCLOSE THE ETHANOL CONTENT OF THEIR MOTOR FUEL

¶ 9 The defendants next assert the trial judge incorrectly determined that the provisions of 52 O.S. § 391²⁴ whose terms provide that it is unlawful for an entity to sell any liquid fuels which deceive the purchaser concerning the nature, quality or identity of the product sold-imposed a duty on sellers to disclose the ethanol content of their fuel. They rely on 17 O.S. Supp.2003 § 620²⁵ whose terms specifically provide that sellers of motor fuel are not required to post information concerning the presence of fuel additives. According to the defendants, they were under no duty to disclose the content of fuel additives before 1 July 2008 when the terms of 52 O.S. Supp.2008 § 347²⁶ became effective. In absence of any duty to provide this information, the defendants contend they cannot be held liable for the plaintiffs' asserted claims against them for breach of contract, breach of express and implied warranties and for violation of the Consumer Protection Act, 15 O.S. § 751 et seq.

¶ 10 The defendants urge the terms of § 620 are plain and unambiguous. Its provisions preempt any common-law duty or duty under the Consumer Protection Act by providing them in this cause with a safe harbor from liability.²⁷ Further, even if the § 391 and § 620 terms conflict, application of rules of statutory construction support their position that the latter terms control here. The defendants also urge that because their actions were consistent with the provision of § 620 their due process rights would be violated if the plaintiffs' action is allowed to be pressed further.²⁸

¶ 11 The fundamental rule of statutory construction is to ascertain and give effect to legislative intent.²⁹ That intent is first divined from the language of a statute.³⁰ If a statute is plain and unambiguous, it will not be subjected to judicial construction but will receive the interpretation and effect its language dictates.³¹ Only where the intent cannot be ascertained from a statute's text, as when ambiguity or conflict with other statutes is shown to exist, may rules of statutory construction be invoked.³² When possible, different provisions must be construed together to effect a harmonious whole and give intelligent effect to each.³³ An absurd result cannot be presumed to have been intended by the drafters.³⁴

¶ 12 A review of the enactments called to our attention reveals no need to resort to canons of construction. There exists no irreconcilable conflict between the § 391 text and the § 620 provisions. The latter's terms explicitly provide that retail facilities shall not be required to post information concerning fuel additives on motor fuel dispensers or elsewhere on the facility premises. These terms make clear that a seller's act of not posting the presence of fuel additives is not to be considered to lie within the ambit of the deceptive practices under § 391. By this result we harmonize and give effect to both statutes. To read the two statutes otherwise would reach an illogical result-that the legislature specifically condoned a deceptive practice upon its passage of § 620. At the time plaintiffs' claims were brought the defendants had no duty to post information that showed the ethanol content in gasoline. The § 391 terms simply do not control this dispute.

¶ 13 Even if there existed an irreconcilable conflict between the terms of § 391 and those of § 620, application of long-standing canons of statutory construction reveal the latter provision would control here. Two well-settled rules of construction are instructive here. First, where a matter is addressed by two statutes-one specific and the other general-the specific statute, which clearly includes the matter in controversy and prescribes a different rule, governs over the general statute.³⁵ Second, more recently-enacted legislation controls over earlier provisions.³⁶ The legislature first enacted § 391 in 1933 to deal with deceptive sales of petroleum products. The terms of § 620, which deal specifically with the required posting of information concerning fuel additives by retail sellers of motor fuel, were enacted in 2003. Giving effect to the most recent expression of the legislative will and allowing the specific statute to control over the more general one compels us to hold that § 620 should govern this controversy.

¶ 14 We note that the terms of 52 O.S. Supp.2008 § 347³⁷ -the legislature's most recent enactment that deals with the sale and labeling of motor fuel containing ethanol-provides further and equally potent support for our conclusion. Its terms, which became effective 1 July 2008, require a motor-fuel seller whose fuel contains a mixture of at least 1% ethanol or methanol to display this information on the pump. Had the legislature intended that the older § 391 terms require sellers to post information concerning fuel additives the latter expression of legislative will would have been utterly superfluous.

¶ 15 The terms of § 620 control this controversy. Prior to 1 July 2008 they clearly relieved the defendants of any duty to disclose the ethanol content of the fuel. The plaintiffs' claims for breach of contract and breach of express and implied warranties³⁸ must hence fail.

¶ 16 Lastly, the plaintiffs' claim the defendants' failure to disclose the ethanol content in their fuel was a deceptive and unfair trade practice in violation of the Oklahoma Consumer Protection Act, 15 O.S. § 751 et seq.³⁹ Although the trial judge ruled the § 391 terms supported a duty by defendants to disclose this information, the § 620 terms clearly control over any general language contained in the Consumer Protection Act. The defendants' actions did not hence violate this Act.⁴⁰

V.

SUMMARY

¶ 17 The trial judge correctly ruled that jurisdiction over today's cause lay in the district court. The asserted plaintiffs' claims-for breach of contract, breach of express and implied warranties and for violation of the Oklahoma Consumer Protection Act, 15 O.S. § 751 et seq.-were bottomed on defendants' alleged duty to disclose the ethanol content of the fuel sold to plaintiffs. A review of the pertinent legislation reveals the terms of 17 O.S. Supp.2003 § 620 must clearly control here. They provide that the defendants, until 1 July 2008 when the terms of 52 O.S. Supp.2008 § 347 became effective, were under no duty to disclose the ethanol content of their fuel. Because at the time the plaintiffs' filed their claim the law imposed no duty on the defendants to disclose the ethanol content of gasoline, they cannot be held liable for breach of contract, breach of express and implied warranties or for violation of the Oklahoma Consumer Protection Act, 15 O.S. § 751 et seq. The plaintiffs' petition clearly failed to state a claim upon which relief may be granted.

¶ 18 The trial judge's ruling under review is affirmed in part and reversed in part; the cause is remanded for further proceedings to be consistent with this pronouncement.

OPALA, J.

¶ 19 EDMONDSON, C.J., TAYLOR, V.C.J., HARGRAVE, OPALA, KAUGER, WINCHESTER, COLBERT and REIF, JJ., CONCUR. ¶ 20 WATT, J., NOT PARTICIPATING.