Chronic Pain Associates, Inc. v. Bubenik

• Decision Date: 15 November 1994
• Docket Number: Nos. 80911,80979 and 83204,s. 80911
• Citation: 885 P.2d 1358,1994 OK 1358
• Parties: CHRONIC PAIN ASSOCIATES, INC., Petitioner, v. The Honorable Sharron BUBENIK, Judge of the District Court, 14th Judicial District, Respondent. Stephen R. GILLILAND, M.D., Petitioner, v. Honorable James P. GARRETT, Honorable Carl B. Jones, Honorable Glen D. Adams, Judges of the Court of Appeals of the State of Oklahoma, Division I, and Honorable Sharron K. Bubenik, Judge of the District Court of Tulsa County, State of Oklahoma, Respondents. CHRONIC PAIN ASSOCIATES, INC., Petitioner, v. The Honorable Sharron K. BUBENIK, Judge of the District Court of Tulsa County, Respondent.
• Court: Oklahoma Supreme Court

Page 1358

885 P.2d 1358

1994 OK 127

CHRONIC PAIN ASSOCIATES, INC., Petitioner, v. The Honorable Sharron BUBENIK, Judge of the District Court, 14th Judicial District, Respondent.

Stephen R. GILLILAND, M.D., Petitioner, v. Honorable James P. GARRETT, Honorable Carl B. Jones,

Honorable Glen D. Adams, Judges of the Court of Appeals of

the State of Oklahoma, Division I, and Honorable Sharron K.

Bubenik, Judge of the District Court of Tulsa County, State

of Oklahoma, Respondents.

CHRONIC PAIN ASSOCIATES, INC., Petitioner, v. The Honorable Sharron K. BUBENIK, Judge of the District

Court of Tulsa County, Respondent.

Nos. 80911, 80979 and 83204.

Supreme Court of Oklahoma.

Nov. 15, 1994.

Applications for extraordinary relief.

In two different original actions in this Court parties to an action in the District Court for Tulsa County challenge various acts of the Honorable Sharron K. Bubenik, Judge.

ORIGINAL JURISDICTION IS ASSUMED SUA SPONTE IN CAUSE NO. 80,911 TO CORRECT PRIOR VOTE OF THE JUSTICES; REHEARING IS GRANTED IN CAUSE NO. 83,204 TO SHOW CORRECT VOTE OF THE JUSTICES AND DENIED ON ALL OTHER GROUNDS; APPLICATION FOR TEMPORARY STAY IS DENIED; MOTIONS FOR SANCTIONS AND ATTORNEY'S FEES DENIED; AND ORIGINAL JURISDICTION IS NOT ASSUMED ON ALL OTHER REQUESTS FOR RELIEF.

Mark T. Koss, Michael McNulty, McNulty, Koss & Bumgarner, Oklahoma City, and Gordon L. Patten, Tulsa, for petitioner Chronic Pain.

Donald E. Herrold and Jack N. Herrold, Herrold, Herrold & Davis, Tulsa, for real party in interest.

SUMMERS, Justice.

This proceeding involves two original actions between the same parties in this Court, Okla.Sup.Ct. Nos. 80,911 and 83,204, both of which arise from a controversy in the District Court of Tulsa County. Cause No. 80,911 is the surviving number after consolidation with yet a third original action, No. 80,979. We do not consolidate the actions, but issue one opinion resolving both.

The case concerns a physician, Gilliland, the doctor's former employer, Chronic Pain Associates (Chronic Pain), and arbitration of the doctor's claim based on contract upon termination of his employment. An arbitration award was entered for the doctor. At a confirmation hearing before the trial court Chronic Pain objected to the award on the basis that one of the arbitrators was not impartial. The trial court overruled the objection and Chronic Pain appealed, (Okla.Sup.Ct. No. 72,113).

Chronic Pain also sought to vacate the award in the District Court based upon allegations of fraud. The trial court held a hearing and sustained a demurrer to the evidence on the basis that no fraud existed. Another appeal was made, (Okla.Sup.Ct. No. 73,235). The two appeals were consolidated.

The Court of Appeals issued an opinion concluding that sufficient evidence of fraud was presented that it was error to have sustained the demurrer. The matter was remanded to the trial court. Both parties sought certiorari from this Court, and both petitions were denied.

On remand the trial court vacated the order that sustained the demurrer to the evidence. It required a supersedeas in the form of a letter of credit to replace the prior supersedeas. The trial court also ordered the parties to re-arbitrate the controversy de novo.

CAUSE NO. 80,911 (Consolidated with Former Cause No. 80,979)

Chronic Pain then filed an application for extraordinary relief in the Oklahoma Supreme Court, and argued that the trial court order was inconsistent in requiring both de novo arbitration and a supersedeas.¹ A few days later Dr. Gilliland sought original jurisdiction relief in this Court, and requested mandamus on the basis of an allegation that the Court of Appeals failed to decide an issue in the consolidated appeal.² The parties agreed that the trial court order was inconsistent. The trial court stayed its order pending the Supreme Court's action on these two actions seeking extraordinary relief.

This Court then assumed original jurisdiction and consolidated the two original actions, Nos. 80,911 and 80,979, into cause No. 80,911. On May 24, 1993 we denied the petition for mandamus directed at the Court of Appeals. That order also vacated that part of the trial court's order requiring a de novo hearing at the arbitration level. This Court explained that the trial court was without authority to order de novo arbitration until the fraud issue was determined. We said:

On the final determination of that issue, if fraud is determined, then the arbitration award must be set aside and new arbitration proceedings ordered de novo. If no fraud is finally determined, then the award and subsequent judgment stands.

Order of Supreme Court, May 24, 1993, at 2.

We issued the writ requiring the trial court to hear and determine the fraud claim and leave the supersedeas in effect.

Then the trial court held its evidentiary hearing. That court filed an order on January 21, 1994 which concluded that the arbitration award should not stand and ordered a new arbitration. Motion for New Trial was filed (Jan. 31, 1994), and then overruled (March 3, 1994), and a "Journal Entry of Judgment" was filed (May 9, 1994). A petition in error was filed (April 1, 1994) and an amended petition in error was filed (June 2, 1994).³ That appeal is not before us in this proceeding.

On March 4, 1994 Dr. Gilliland filed an application in No. 80,911 for an order to enforce the writ of mandamus issued May 24, 1993. He argued that the trial court had failed to find the presence of fraud, and that court was thus required to confirm the award pursuant to the language of our order issued May 24, 1993. We declined to assume original jurisdiction on this application by an Order of May 3, 1994.

Even though our Order of May 3, 1994 declined to assume original jurisdiction Dr. Gilliland filed an application for leave to file a petition for rehearing. He argues that the application for rehearing was proper. His position is that the application was for an order to enforce a writ in a case where original jurisdiction had already been assumed, and that he need not petition the Court to assume original jurisdiction. He is incorrect.

Historically, the enforcement of this Court's dispositional orders has been by an original action for mandamus.⁴ For example, when this Court exercises appellate jurisdiction and renders an opinion it issues an order requiring the lower tribunal to comply with the opinion. This order is referred to as a "mandate" or "writ of mandate", and is a type of writ of mandamus. Enforcement of this order or writ is by an original jurisdiction proceeding and a writ of mandamus from this Court. Parks v. Hughes, 312 P.2d 435, 437-438 (Okla.1957); Harris v. Chambers, 121 Okla. 75, 247 P. 695, 696 (1926). The same principle applies to original jurisdiction proceedings.

The argument of Dr. Gilliland is that once this Court assumes original jurisdiction in a cause it does so with regard to all issues that arise from the enforcement of this Court's order in the trial court. This is incorrect. In Robinson v. McDanel, 795 P.2d 513 (Okla.1990) we said that "In this original action we are only concerned with the legal issue as framed by the parties and presented by the record before us." Id. 795 P.2d at 515. When this Court assumes original jurisdiction it does so on the basis of the facts presented at that time, and to address those matters considered in the opinion or order of this Court. The Court's assumption of original jurisdiction does not include subsequent applications for mandamus to enforce the Supreme Court order in a trial court.

This Court may assume original jurisdiction to enforce its orders issued in previous original jurisdiction proceedings. State ex rel. Commissioners of Land Office v. Keen, 191 Okla. 697, 138 P.2d 78 (1943); State ex rel. Poulos v. State Bd. of Equalization, 646 P.2d 1269 (Okla.1982). But a litigant may not successfully invoke this Court's original jurisdiction as a matter of right when seeking our supervisory control over a District Court. We may decline to assume original jurisdiction, and several examples are found in our published opinions. For example, an application for mandamus to enforce an appellate mandate may be denied because of the circumstances of the case. State ex el. Goldsborough v. Huston, 28 Okla. 718, 116 P. 161, 162 (1911). Cf. State ex el. Blankenship v. Atoka County, 456 P.2d 537, 541 (Okla.1969), (original jurisdiction may be declined when facts are insufficient or inadequately developed). An application to enforce a prior order of this Court may, for example, be similarly insufficient.

In summary, Dr. Gilliland's March 4, 1994 application in No. 80,911 was properly treated as one requesting this Court to assume original jurisdiction. We declined to assume jurisdiction upon that application. No application for rehearing may be addressed to an order denying an application to assume original jurisdiction. Oklahoma Supreme Court Rule 40, 12 O.S.1991, Ch. 15, App. 1. Dr. Gilliland's application for rehearing in Okla.Sup.Ct. No. 80,911 is unauthorized and is hereby stricken.

The order of May 3, 1994 was a final order not subject to rehearing. On October 12, 1994 Dr. Gilliland filed an application in this Court for leave to present newly discovered evidence. Chronic Pain responded and Gilliland replied. On October 21, 1994 Chronic Pain advised the Court that the trial judge recused herself from further participation. These pleadings request relief from this Court in the exercise of its original jurisdiction powers. We hereby decline to assume original jurisdiction as requested in these instruments.

We sua sponte invoke our superintending power pursuant to Art. VII § 4 of the Oklahoma Constitution to correct the vote on the order of May 3, 1994 denying Gilliland's application. One Justice of this Court disqualified himself from participating in another cause before this Court that involved a lawyer who also appeared as a lawyer in cause No....