Gentry v. Cotton Electric Cooperative, Inc.

2011 OK CIV APP 24, 268 P.3d 534, 2010 Okla. Civ. App. LEXIS 149, 2011 WL 806447
CourtCourt of Civil Appeals of Oklahoma
DecidedOctober 26, 2010
DocketNo. 107,019
StatusPublished
Cited by2 cases

This text of 2011 OK CIV APP 24 (Gentry v. Cotton Electric Cooperative, Inc.) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gentry v. Cotton Electric Cooperative, Inc., 2011 OK CIV APP 24, 268 P.3d 534, 2010 Okla. Civ. App. LEXIS 149, 2011 WL 806447 (Okla. Ct. App. 2010).

Opinion

JOHN F. FISCHER,

Presiding Judge.

T1 Kimberly Gentry appeals the denial of her motion for class certification. The district court denied her motion finding that she had failed to satisfy three of the five prerequisites for certification found in 12 0.8.2001 § 2023(A) and (B). We reverse.

BACKGROUND

12 On March 1, 2006, a fire started in Stephens County that eventually covered more than 13,000 acres. The fire destroyed approximately forty-eight residences, numerous other structures and substantial personal property, including property owned by Gentry. Gentry sued Cotton Electric Cooperative, Inc. (CEC) alleging the fire was caused by CEC's defective electric transmission line. Gentry moved to certify a class of plaintiffs pursuant to 12 00.98.2001 $ 2028. Gentry's appeal is from the district court's order of March 26, 2009, denying that motion.1

STANDARD OF REVIEW

13 At the time the district court's order denying certification was entered, the applicable standard of review was abuse of discretion. Burgess v. Farmers Ins. Co., Inc., 2006 OK 66, 19, 151 P.3d 92, 98 (citing Shores v. First City Bank Corp., 1984 OK 67, 689 P.2d 299); Mattoon v. City of Norman, 1981 OK 92, 11 25-26, 633 P.2d 735, 740-41. [537]*537However, the standard of review for this appeal requires our interpretation of an amendment to section 2028 that became effective November 1, 2009. Paragraph C of that statute now provides:

C. DETERMINATION BY ORDER WHETHER CLASS ACTION TO BE MAINTAINED; NOTICE; JUDGMENT; ACTIONS CONDUCTED PARTIALLY AS CLASS ACTIONS.
1. As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order entered on or after November 1, 2009, that certifies a class action shall define the class and the class claims, issues or defenses, and shall appoint class counsel under subsection F of this section. An order under this subsection may be conditional, and may be altered or amended before the decision on the merits.
2. The order described in paragraph 1 of this subsection shall be subject to a de novo standard of review by any appellate court reviewing the order. While the appeal of the order on class certification is pending, the trial court shall retain sufficient jurisdiction over the case to consider and implement a settlement of the action should one be reached between the parties and discovery as to the class claims shall be stayed pending resolution of the appeal.

12 O.S. Supp.2009 § 2023(C). In essence, the amendment added the second sentence of paragraph 1 and all of paragraph 2, providing for a de novo standard of review for class certification orders. CEC argues that the first sentence of paragraph 2 refers to the second sentence of paragraph 1. Therefore, CEC contends that de novo review is required only for class certification orders entered after November 1, 2009. We find that construction too narrow.

14 There are three sentences in paragraph 1, each describing class certification orders. The language of paragraph 2, "the order described in paragraph 1," is not limited to the orders described only in the second sentence of paragraph 1. Clearly, had the Legislature intended to subject to de movo review only certification orders entered after November 1, 2009, it could have substituted "orders entered after November 1, 2009," for "the order described in paragraph 1." The fact that the Legislature did not so limit paragraph 2 reflects an intention to subject all certification orders to de novo review. "To ascertain intent, we look to the language of the pertinent statute. We presume that the Legislature intends what it expresses." Oklahoma Ass'n for Equitable Taxation v. City of Oklahoma City, 1995 OK 62, T5, 901 P.2d 800, 808 (citations omitted). "When the Legislature has clearly expressed its intent, the use of additional rules of construction are almost always unnecessary and a statute will be applied as written." Sam-man v. Multiple Injury Trust Fund, 2001 OK 71, 113, 33 P.3d 302, 307. Further, CEC's construction would require application of two standards of review: the abuse of discretion standard for any unresolved certification order entered prior to November 1, 2009, and for orders denying class certification entered after that date, but a de novo standard for orders certifying a class entered after November 1, 2009. CEC has not advanced any principle of statutory construction that would support this interpretation, even assuming such interpretation would be constitutionally permissible2 We find that the Legislature intended section 2028(C) to dictate the standard of review in all appeals decided after November 1, 2009, regardless of when the order appealed was entered.

15 So construed, the issue is whether that legislative intent can be implemented. Absent some contravening rule, an appellate court applies the law in effect at [538]*538the time the appeal is decided. "Legislation that is general in its terms and impacts only matters of procedure is presumed to be applicable to all actions, even those that are pending. Cole v. Silverado Foods, Inc., 2003 OK 81, ¶ 8, 78 P.3d 542, 546. No Oklahoma decision has directly addressed whether the standard of review is procedural or substantive.

$6 Nonetheless, appellate courts are courts of limited jurisdiction. Okla. Const. art. 7, § 4. The standard of review prescribes an appellate court's scope of review, and therefore limits its power. Ronald R. Hofer, Standards of Review-Looking Beyond the Labels, 74 Marq. L.Rev. 281, 282 (1991). The standard of review allocates judicial decision making between trial and appellate courts by defining the deference the appellate court must give to decisions of the trial court. "An issue of law decided by a trial court is reviewed by this Court de novo. On the other hand, an adjudication of a fact by a lower tribunal is reviewed by different [deferential] standards according to the type of controversy and type of adjudication made." Christian v. Gray, 2003 OK 10, ¶ 41, 65 P.3d 591, 608 (citations omitted); See also Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105, 114-16, 128 S.Ct. 2343, 2350, 171 L.Ed.2d 299 (2008). A standard of review is dictated either "by a long history of appellate practice," or "explicit statutory command." Pierce v. Underwood, 487 U.S. 552, 558, 108 S.Ct. 2541, 2546, 101 L.Ed.2d 490 (1988). Clearly, the Legislature can establish the standard of review for a particular matter. See Parks v. Norman Mun. Hosp., 1984 OK 53, 112, 684 P.2d 548, 551-52 (applying the any-competent-evidence standard of review to appeals of factual determinations by the Workers' Compensation court and de novo review of legal issues pursuant to section 26 of the 1977 amendments). See also U.S. v. Booker, 548 U.S. 220, 125 S.Ct. 738, 160 LEd.2d 621 (2005) (discussing the different standards of review specified by Congress with respect to federal criminal sentencing issues). Here, we deal with a clear legislative command to apply the de novo standard of review after November 1, 2009.

T7 This case was filed March 3, 2008. The order denying Gentry's motion to certify was filed March 26, 2009.

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2011 OK CIV APP 24, 268 P.3d 534, 2010 Okla. Civ. App. LEXIS 149, 2011 WL 806447, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gentry-v-cotton-electric-cooperative-inc-oklacivapp-2010.