Enid Retail Merchants v. Jones

OP ALA, Justice,

dissenting:

The issue dispositive of this appeal is whether, in an action brought by an Oklahoma charitable, benevolent and educational corporation, the defendant has standing to challenge the plaintiff’s capacity to act, under its corporate charter, as a merchant’s assignee for collection of debts. The court holds that (a) the plaintiff-appellant “has waived any objection” to the defendant’s standing to challenge its corporate capacity and (b) the plaintiff lacks the capacity to engage in “collection-type activities”. I cannot accede to the court’s pronouncement because my analysis of the record and of the applicable law inclines me to the view that (1) the plaintiff neither acquiesced in, nor stipulated to, the defendant’s legal standing to challenge its corporate capacity and (2) regardless of any procedural infirmity, the standing issue, which lies in the domain of public law, may be reached here for our review.

Oklahoma law does not require a litigant to “name the theory upon which he seeks relief.”¹ When, by his answer, the defendant first interposed a challenge to the plaintiff’s corporate capacity to bring a collection suit as assignee of a local merchant and then, by its supplemental answer, the defendant proceeded to question the plaintiff’s status as real party in interest, the plaintiff had no duty, either then or at a later time, to choose, or commit itself to, some theory of defense against, or resistance and opposition to, the defendant’s attack. What matters here is that there is no instrument in the record by which the plaintiff acquiesced in, or stipulated to, the defendant’s standing to challenge its corporate capacity. The court erroneously attributes the plaintiff’s waiver to “a motion for judgment on stipulation of facts”. No statement in that motion precludes the plaintiff from objecting to the defendant’s standing to raise the corporate capacity issue.

Standing to challenge a litigant’s capacity to engage in a given activity under its state corporate charter presents a public-law issue.² A public-law issue may be considered on appeal upon a theory not presented to the trial court.³

Even though the plaintiff does not here explicitly and with precision argue the standing issue, the public-law character of the subject-matter leaves us nonetheless free to reach it. There is hence no procedural infirmity precluding our decision on the dispositive issue of the defendant’s standing to challenge the plaintiff’s corporate capacity.⁴

I would resolve the standing issue against the defendant and reverse the trial court’s dismissal of the action with prejudice.⁵

1 . Doss Oil Royalty Co. v. Texas Co., 192 Okl. 359, 137 P.2d 934, 936 [1943],

2 . Schultz v. Morgan Sash & Door Co., Okl., 344 P.2d 253 [1959]; Kurz v. Farmers United Co-Operative Pool, 199 Okl. 224, 184 P.2d 790, 792 [1947]; see Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 [1968]; see also, Sarkeys v. Independent Sch. Dist. No. 40, etc., 592 P.2d 529, 533 [1979].

3 .McCracken v. City of Lawton, Okl., 648 P.2d 18, 21 [1982]; Application of Goodwin, Okl., 597 P.2d 762, 764 [1979]; Special Indemnity Fund v. Reynolds, 199 Okl. 570, 188 P.2d 841 [1948]; see also, Okl. Alcoholic Beverage Control Bd. v. Seely, Okl., 621 P.2d 534, 539 [1980] (Opala, J., concurring in result).

4 . Application of Goodwin, supra note 3 at 764.

5 . Schultz v. Morgan Sash & Door Co., supra note 2.