City of Lawton v. Intern. Union of Police

• Decision Date: 08 January 2002
• Docket Number: No. 95,122.,95,122.
• Citation: 2002 OK 1,41 P.3d 371
• Parties: CITY OF LAWTON, a municipal corporation, Plaintiff/Appellant, v. INTERNATIONAL UNION OF POLICE ASSOCIATIONS, LOCAL 24, Bargaining Agent, and Damion Sean Hart, Defendants/Appellees.
• Court: Oklahoma Supreme Court

41 P.3d 371

2002 OK 1

CITY OF LAWTON, a municipal corporation, Plaintiff/Appellant, v. INTERNATIONAL UNION OF POLICE ASSOCIATIONS, LOCAL 24, Bargaining Agent, and Damion Sean Hart, Defendants/Appellees.

No. 95,122.

Supreme Court of Oklahoma.

January 8, 2002.

Frank V. Jensen, Lawton, Oklahoma, for Appellant.

James R. Moore, Douglas D. Vernier, James Moore and Associates, P.C., Oklahoma City, Oklahoma, for Appellees.

OPALA, J.

¶ 1 The dispositive issue on certiorari is whether the Court of Civil Appeals erred in not dismissing the appeal for lack of jurisdiction? We answer in the affirmative.

I THE ANATOMY OF LITIGATION

¶ 2 The City of Lawton [City] terminated the employment of Damion Hart [Hart], a police officer. He challenged the discharge by filing a grievance with the City. Upon its denial he demanded grievance arbitration asserted as authorized by a collective bargaining agreement¹ between the City and the International Union of Police Associations, Local 24 [IUPA] (Hart's bargaining agent). Hart obtained an "arbitration award"² [award], which restored him to his former position with some backpay allowance. The City brought a district court suit to vacate the arbitration decision.³ Hart and IUPA counterclaimed for judicial confirmation and enforcement. Both parties moved for summary judgment. Hart requested "partial summary adjudication" of the tendered issues, which would withhold from disposition only his claim to backpay, attorney's fee and interest. The City moved for the arbitration decision's vacation. The trial court's 24 July 2000 order here on review (a) denied the City's quest to vacate the arbitration decision, (b) determined the decision to be eligible for confirmation and enforcement, (c) decided most of the counterclaim issues by granting summary relief to the defendant, (d) directed the parties to pay their own fees and costs, and (e) "reserved for later hearing, if necessary," the amount of compensation due Hart on his counterclaim for confirmation.⁴ The City then secured a trial court's certification of the July 24 order⁵ for submission of the case to this court as a petition for certiorari to review a certified interlocutory order.⁶ Twenty-five days later, the City brought here an appeal (instead of a petition for certiorari to review that order), which it sought to prosecute by the accelerated-track method (designed for review of summary judgments).⁷ ¶ 3 The Court of Civil Appeals [COCA] affirmed the July 24 order. Because the nisi prius order on review does not resolve the backpay compensation issue, we granted certiorari (on 10 October 2001) to examine into the COCA's subject-matter jurisdiction as well as into our own. Attached to and tendered with the City's supplemental brief on certiorari is a copy of the parties' stipulation (dated 30 October 2001 when this case stood pending on certiorari review) as to the amount of compensation (including interest) due Hart (for the period of 8 September 1996 through 23 December 2001).⁸

II THE JULY 24 ORDER DOES NOT QUALIFY AS AN APPEALABLE DISPOSITION

¶ 4 Although the City's petition in error states that the appeal is from summary judgment that disposed of all claims by the parties, it also notes that "any issues as to the calculation of the backpay award" stood undecided and their resolution postponed "for later hearing, if necessary." According to the petition in error, the parties anticipate filing at nisi prius a stipulation on the amount of the compensation due Hart.

¶ 5 This appeal is prosecuted from an unappealable order that stops short of rendering judgment. To serve as a judgment, the adjudication here on review would have been required to determine all the issues tendered by the counterclaim for confirmation of the arbitration decision.⁹ A decision disposing of the principal claim but leaving a related counterclaim unresolved is not appealable as final.¹⁰ The order sought to be reviewed does not hence rise to the status of a judgment in the 12 O.S.1991 § 681¹¹ sense.¹² Nay, the July 24 journal entry establishes facially that no judgment was entered.¹³ This is so because it fails to adjudicate the exact amount of compensation and interest, if any, due the defendant. The City's appeal is from nothing more than a set of some summarily resolved issues anterior to a judgment. In other words, it is prosecuted from an intermediate order in the case.¹⁴

III THE JURISDICTIONAL FLAW CANNOT BE CURED (AND THE APPEAL SAVED FROM DISMISSAL) BY AN IMPERMISSIBLE POSTAPPEAL NISI PRIUS STIPULATION TENDERED ON CERTIORARI

¶ 6 The City has attempted to cure the jurisdictional flaw by attaching to its certiorari brief a copy of a postappeal stipulation filed in the trial court. The parties inform us that by this stipulation there are no longer any disputed issues left to be decided and that no other nisi prius hearings will be necessary. The City's mid-certiorari attempt to cure the jurisdictional flaw by its effort to diminute, in this fashion, the record for appeal comes too late.

¶ 7 The supplementation sought to be made is unauthorized. This is so because the material had neither been tendered to the trial court during the pre-order stages nor had been acted upon when the decision on review was made.¹⁵ An appellate court is confined to that record which was before the nisi prius court at the time of its decision on review. The content of the record for appeal cannot be supplemented by attaching to the briefs a postappeal stipulation.¹⁶

A. The July 24 Order Cannot Be Reached For Nunc Pro Tunc Correction

¶ 8 The jurisdictional defect that taints this appeal cannot be cured by a nunc pro tunc correction. Orders nunc pro tunc are designed neither to bring into the record what a court might or should have done nor what it might or should have intended to do. The function of a nunc pro tunc entry is to amend a judgment in order to make it speak the truth about what actually transpired or was considered and adjudged.¹⁷ Nunc pro tunc relief stands limited to supplying inadvertent clerical omissions and to correcting facial mistakes in recording judicial acts that actually took place.¹⁸ In short, a nunc pro tunc order can and will place of record what was actually decided by the court but was incorrectly recorded. The device may neither be utilized as a vehicle for the trial court's review of its judgment (to excise legal errors found in it) nor as a means of securing a different judgment.¹⁹

B. The Postappeal Stipulation is Coram Non Judice²⁰

¶ 9 Pending an appeal or certiorari the nisi prius court is without jurisdiction over any issue pending on review. Its action upon these matters is coram non judice.²¹ A nisi prius stipulation, which invites approving judicial action to be effected by the trial court while the issues in controversy remain pending for review in an appellate court, is hence void on the face of the nisi prius record if its submission occurs before mandate has been transmitted to revest the trial court with subject-matter jurisdiction of the suit.²²

¶ 10 The parties in essence would have this court overlook its lack of jurisdiction over the appealed case because they now appear to agree that the appeal should not be dismissed. Jurisdiction cannot be conferred by consent or agreement of the parties or even by one's failure to complain.²³ It is every court's duty to inquire sua sponte into its own cognizance and into that of the tribunal whence the cause came.²⁴ Jurisdictional inquiries into appellate or certiorari cognizance may be considered at any stage of the proceedings.²⁵

IV THE CITY'S MID-CERTIORARI ATTEMPT TO CURE THE JURISDICTIONAL ERROR BY HAVING ITS APPEAL RECAST AS A PETITION FOR CERTIORARI TO REVIEW A CERTIFIED INTERLOCUTORY ORDER COMES TOO LATE

¶ 11 In the event the order is held not to have been appealable, the City requests that the court do not dismiss its flawed appeal but rather recast it as a certiorari proceeding to review a certified interlocutory order.

¶ 12 The City originally secured a "conditional" certification of the July 24 order that was tendered here for corrective relief. The last sentence of that order clearly expresses doubt about the decision's appealable quality.²⁶ The text of the order states that "[t]o the extent this Journal Entry of Judgment is not considered a final judgment, it is hereby certified that an immediate appeal, if so desired by either party, will materially advance the ultimate termination of this litigation." (emphasis supplied). The certification was intended to make the July 24 ruling legally fit for prejudgment certiorari review authorized by the terms of 12 O.S.1991 § 952(3)(b).²⁷

¶ 13 Counsel for the City abandoned the course prescribed in the certificate and instead represented to this court that the City's quest for corrective relief is an appeal from judgment even though counsel knew that not all the issues in Hart's counterclaim had yet been decided. In its strategy here the City doubtless saved for itself an alternative choice. In the event the July 24 disposition was determined to be unappealable, it would then rely upon the previously obscured nisi prius certification. In other words, the City attempts to cover both bases should jurisdiction become an impediment. The City's plan is critically flawed and must fail.

¶ 14 Had the City correctly designated its petition as one for certiorari to review a certified interlocutory order (rather than as an appeal), its review quest would have been reached for immediate consideration on whether its certiorari petition should be granted. If certiorari had been granted, the case would have been retained for this court's disposition. Because the petition in error adroitly masked that the July 24 disposition had been certified as an interlocutory order and that there is (or may be) a jurisdictional defect in presenting the case as an appeal, the paperwork was treated (by this court and by the Court of...