Bell v. Dillard Dept. Stores, Inc.

• Decision Date: 04 June 1996
• Docket Number: No. 94-6351,94-6351
• Citation: 85 F.3d 1451
• Parties: Marc A. BELL, Plaintiff-Appellant, v. DILLARD DEPARTMENT STORES, INC. Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1451

85 F.3d 1451

Marc A. BELL, Plaintiff-Appellant, v. DILLARD DEPARTMENT STORES, INC. Defendant-Appellee.

No. 94-6351.

United States Court of Appeals Tenth Circuit.

June 4, 1996.

R. Allen Smith (J.W. Coyle, III, Gloyd L. McCoy of counsel, and Robert D. Baron, with him on the briefs), Coyle & McCoy, Oklahoma City, Oklahoma, for Appellant.

G. David Ross (Nathan L. Whatley with him on the briefs), Lytle, Soule & Curlee, Oklahoma City, Oklahoma, for Appellee.

Before HENRY and McKAY, Circuit Judges, and JENKINS ¹, Senior District Judge.

HENRY, Circuit Judge.

This appeal concerns the effect of rulings in a prior, somewhat unusually conducted municipal court case on a diversity action for damages. The district court concluded that the municipal court's determination that there was probable cause for the arrest of the plaintiff-appellant Marc Bell precluded Mr. Bell from re-litigating his claims for assault, battery, false arrest, and malicious prosecution. The court therefore granted summary judgment in favor of the defendant Dillard Department Stores, Inc. ("Dillard").

For two reasons, we conclude that Dillard is not entitled to summary judgment: (1) because the record does not contain a document that satisfies the requirements of Oklahoma law for orders and judgments that may be given preclusive effect; and (2) because the record does not establish that Mr. Bell had a full and fair opportunity to litigate the issue in municipal court. Accordingly, we vacate the district court's grant of summary judgment in favor of Dillard and remand the case for further proceedings consistent with this opinion.

I. BACKGROUND

In March 1993, a security guard arrested Mr. Bell in a restroom at Dillard's store in Crossroads Mall in Oklahoma City. The guard alleged that by certain gestures Mr. Bell had offered to engage in a lewd act, and Mr. Bell was charged in Oklahoma City Municipal Court with violating a municipal ordinance. Mr. Bell's attorney filed several pretrial motions, including a motion to quash the arrest and a motion to suppress certain statements made by Mr. Bell. See Aplt's App. at 173. In his motion to quash, Mr. Bell argued that the security guard lacked probable cause to arrest him. See id.

On November 10, 1993, a municipal judge heard evidence pertaining to Mr. Bell's motions to quash and suppress. The judge took the motions under advisement and informed the parties that he would issue a ruling in several days. What happened next is somewhat unclear from the record. However, a Renewed Motion to Quash and Motion to Suppress, filed by Mr. Bell's attorney on November 15, 1993, reports the following conversation with the municipal judge:

3. That on Friday, November 12, 1993, counsel, in a telephone conversation (with the permission of the prosecutor ... ) heard from [the municipal judge] that he was overruling the Motions, but he was not specific about whether it included both of them, and further felt uncomfortable with the case and wanted to recuse himself because of his ownership of certain shares of stock in Dillards Department Stores. That [the municipal judge] further indicated that he even felt somewhat uncomfortable with ruling on the Motions.

4. That counsel, based upon the discomfort of the prior Judge with sitting in the case ..., is entitled to renew his Motion to Quash and Motion to Suppress.

Id. at 175-76.

According to a handwritten minute entry, a second municipal judge denied Mr. Bell's motion to quash and motion to suppress on November 15, 1993. Id. at 31. On the same day, the second municipal judge empaneled a jury, heard opening arguments for Mr. Bell and the City of Oklahoma City, and considered testimony from the first witness, the security guard who had arrested Mr. Bell. Id. at 27-28. The judge, upon hearing this testimony, immediately dismissed the case:

I'm going to dismiss this case on the Demurrer or the Motion to Dismiss of the Defense Attorney for the fact that the case is not proved. A prima facie case which would stand alone has not been proved by this witness and this is the only witness that can present such evidence.

Id. at 73.

Following the dismissal of the municipal charge, Mr. Bell filed the instant diversity action against Dillard asserting claims for assault, battery, false arrest, false imprisonment, and malicious prosecution. In its motion for summary judgment, Dillard argued that the denial of Mr. Bell's motions to quash by both municipal judges constituted a finding that his arrest was supported by probable cause. Dillard maintained that because Mr. Bell had had a full and fair opportunity to litigate the probable cause issue in municipal court, he was precluded from asserting any of his claims.

The district court agreed with this reasoning, concluding that "probable cause was fully and fairly litigated in the prior municipal court proceeding and cannot be relitigated in this action." Id. at 239. Because a lack of probable cause for Mr. Bell's arrest was an essential component of each of his claims, the court reasoned, Dillard was entitled to summary judgment on all of them.

II. DISCUSSION

Mr. Bell now argues that the district court erred in granting summary judgment to Dillard because he did not have a full and fair opportunity to litigate the issue of probable cause in the municipal court. We review the grant of summary judgment de novo, applying the same standards as did the district court under Fed.R.Civ.P. 56(c). Franklin v. Thompson, 981 F.2d 1168, 1169 (10th Cir.1992). The movant has the burden of establishing that it is entitled to summary judgment, and we examine the record in the light most favorable to the nonmoving party. Id. at 1169-70; Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). Additionally, the legal question of whether issue preclusion bars the relitigation of the issue of probable cause in a subsequent action is reviewed de novo. Franklin, 981 F.2d at 1170.

Pursuant to 28 U.S.C. § 1738, a federal court must give the same full faith and credit to state judicial proceedings "as they have by law or usage in the courts of such State ... from which they are taken." 28 U.S.C. § 1738; see also Kremer v. Chemical Constr. Corp., 456 U.S. 461, 466, 102 S.Ct. 1883, 1889-90, 72 L.Ed.2d 262 (1982); Allen v. McCurry, 449 U.S. 90, 95-96, 101 S.Ct. 411, 415-16, 66 L.Ed.2d 308 (1980); Ruyle v. Continental Oil Co., 44 F.3d 837, 843 (10th Cir.1994), cert. denied, --- U.S. ----, 116 S.Ct. 272, 133 L.Ed.2d 193 (1995); Thournir v. Meyer, 803 F.2d 1093, 1094 (10th Cir.1986). "Under the doctrine of issue preclusion (or collateral estoppel), once a court has decided an issue of fact or law necessary to its judgment, the same parties or their privies may not relitigate the issue in a suit brought upon a different claim." Fent v. Oklahoma Natural Gas Co., 898 P.2d 126, 133 (Okla.1994) (footnotes omitted); see also Wilson v. Kane, 852 P.2d 717, 722 (Okla.1993); Veiser v. Armstrong, 688 P.2d 796, 800 n. 9 (Okla.1984). However, the doctrine of issue preclusion bars an attack on a judgment only when the issue in question has been " 'fully and fairly' litigated" in the prior proceeding. Veiser, 688 P.2d at 800; see also Carris v. John R. Thomas & Assocs., P.C., 896 P.2d 522, 529 n. 17 (Okla.1995) ("Issue preclusion cannot apply when the party against whom the earlier decision is interposed did not have a full and fair opportunity to litigate the critical issue in the earlier case.").

In the instant case, there are two reasons why the doctrine of issue preclusion is inapplicable. First, the minute entry on which Dillard relies is not signed by the municipal judge, and under Oklahoma law it therefore may not be afforded preclusive effect. Second, because the first municipal judge recused and because the record does not establish that the second municipal judge reviewed the transcript of the motions hearing conducted by the first judge, we cannot conclude that Mr. Bell had a full and fair opportunity to litigate the probable cause issue in municipal court. Additionally, there is some question under recent case law (which echoes policy concerns advanced by courts and scholars) whether issue preclusion may be applied to litigants such as Mr. Bell who, because they ultimately prevail at trial, do not have an opportunity to appeal adverse rulings on pretrial motions.

A. A minute entry not signed by the municipal judge is not entitled to preclusive effect.

In Depuy v. Hoeme, 775 P.2d 1339 (Okla.1989), the Oklahoma Supreme Court concluded that a ruling pronounced by a judge at a hearing, transcribed by a court reporter, and memorialized in a "bench docket entry" could not be afforded preclusive effect because the ruling was not set forth in an order signed by the judge. Id. at 1342-44. The Depuy court explained the kind of evidence necessary to determine the effect of a judgment or order:

A judgment or order is rendered and begins its legal life as soon as it is pronounced from the bench and before it is ever reduced to writing for entry of record by the clerk. While any judgment or order is operative from the moment it is announced, the only legitimate evidence of the adjudication's legal existence, of its terms and of its legal effect is the record entry bearing the judge's signature.

Id. at 1343 (footnotes omitted); see also Elliott v. City of Guthrie, 725 P.2d 861, 863 n. 10 (Okla.1986) ("A minute entry unsigned by the judge is not a legally sufficient memorial of the trial court's ruling.").

In the instant case, the record does not contain an order or a judgment that is signed by either of the municipal judges and that addresses the issue that Dillard now seeks to preclude Mr. Bell from litigating--whether the security guard had probable cause to arrest him. As we have noted, the record before us does contain two documents that memorialize the municipal court's rulings on Mr. Bell's pretrial motions to quash and sup...