LCR, Inc. v. Linwood Properties

• Citation: 918 P.2d 1388,1996 OK 73
• Decision Date: 18 June 1996
• Docket Number: No. 83939,83939
• Parties: LCR, INC., an Oklahoma corporation, Appellant, v. LINWOOD PROPERTIES, an Oklahoma general partnership, d/b/a/ Linwood Properties; Ralph L. Franklin; Charles E. Underwood; Delbert J. King; and Franklin Investments, a general partnership, Appellees.
• Court: Oklahoma Supreme Court

Page 1388

918 P.2d 1388

1996 OK 73

LCR, INC., an Oklahoma corporation, Appellant, v. LINWOOD PROPERTIES, an Oklahoma general partnership, d/b/a/

Linwood Properties; Ralph L. Franklin; Charles

E. Underwood; Delbert J. King; and

Franklin Investments, a

general partnership,

Appellees.

No. 83939.

Supreme Court of Oklahoma.

June 18, 1996.

As Corrected June 26, 1996.

R. Jay Chandler, Roger K. Eldredge, Norman & Wohlgemuth, Tulsa, for Appellant.

John D. Boydston, Boydston & Reheard, Eufala, John M. Freese, Sr., Daniel B. Graves, Freese & March, P.A., Tulsa, for Appellees.

OPALA, Justice.

Certiorari was granted to settle an important question, i.e., the degree of interinstitutional deference that is due when the Court of Appeals is dealing with jurisdictional and postural defects settled by an earlier Supreme Court ruling. Two queries are presented: (1) Did the Court of Appeals have the power to reinquire into issues settled by the earlier Supreme Court order which declared LCR, Inc.'s [LCR] appeal timely and directed that it be advanced to the decisional stage? (2) Is LCR's appeal prosecuted from an appealable order? We answer both questions in the negative.

I THE ANATOMY OF LITIGATION

Alvin Bates, as successor receiver in Cimmaron Federal Savings and Loan Association v. Fisher, brought suit against Linwood Properties, Ralph L. Franklin, Charles E. Underwood, Delbert J. King, and Franklin Investments [collectively called "Linwood"] on various notes secured by a second mortgage. LCR was later substituted for Bates. An order memorializing a so-called "summary judgment" for LCR was entered August 6, 1993. ¹ Linwood timely moved for a "new trial". Its motion was denied on September 3, 1993. On September 13, 1993 the trial judge reconsidered the earlier order (denying a new trial) and vacated her August 6 summary adjudication. The September 13 order was then re-memorialized on July 6, 1994 with its content expanded to include detailed findings of fact. LCR appealed on July 20, 1994 for review of the latest memorial of the nisi prius vacation decision.

In its response to LCR's petition in error Linwood sought the appeal's dismissal, claiming

that it is prosecuted from a nonappealable order. Linwood's quest was denied by this court's October 10, 1994 order. ² The cause was then assigned to the Court of Appeals, which dismissed the appeal, holding the July 6, 1994 order (of which review is sought) unappealable. We granted certiorari and now vacate the Court of Appeals' opinion, directing that LCR's appeal be dismissed.

II

THE RULES OF INTERINSTITUTIONAL DEFERENCE THAT IS DUE WHEN

THE COURT OF APPEALS IS DEALING WITH

JURISDICTIONAL AND POSTURAL DEFECTS

SETTLED BY AN EARLIER SUPREME

COURT RULING

When, as here, re-examination is sought in the Court of Appeals of a pre-assignment ³ Supreme Court order that denies a motion to dismiss, the text of the court's ruling is of critical importance for assessment of the intermediate appellate court's cognizance to reinquire. Three different scenarios explain the degree of deference to be accorded procedural orders that settle attacks launched against an appeal before it is assigned to the Court of Appeals.

If the motion to dismiss is denied "with prejudice to renewal ", the ruling may not be relitigated either in this court or in the Court of Appeals. If the pre-assignment order denying the dismissal motion is explicitly qualified as "without prejudice to renewal ", the added phrase in the order's text stands as an open invitation to the transferee tribunal to re-examine sua sponte any jurisdictional defect and any jurisdictional or postural issue the litigants may re-press.

If the Supreme Court's order denies the motion to dismiss but is silent with respect to its ruling's effect on the challenge's renewability, the ruling--regarded in law as implicitly "without prejudice to renewal" ⁴--may not be re-examined by the Court of Appeals, a tribunal constitutionally inferior to the Supreme Court. ⁵ Uninvited or unauthorized relitigation (in the Court of The Supreme Court may itself reconsider any jurisdictional or postural issue (on certiorari or otherwise) which is unshielded by its earlier "with prejudice" bar. Stites v. Duit Const. Co., Inc., ⁷ where we held that an earlier pre-assignment Supreme Court order (which overrules a motion to dismiss without prejudice, either implicitly or explicitly) is always subject to reconsideration, continues to stand as binding authority for this view.

Appeals) of issues decided by the Supreme Court is barred by the mandate of Art. 7, §§ 4, 5 and 6. ⁶ When re-examination is deemed desirable of a pre-assignment Supreme Court ruling on a motion to dismiss, which does not facially invite reconsideration in the Court of Appeals, the transferee tribunal should request that the case be recalled for that purpose.

Because in this case the text of the Supreme Court order that denies dismissal of LCR's appeal does not explicitly indicate that the ruling was made without prejudice to renewal, only this court could re-examine the issues whether LCR's appeal (a) is timely and (b) is prosecuted from an appealable order.

III

A THE VACATED "SUMMARY JUDGMENT" IS NOT A JUDGMENT IN THE 12 O.S.1991 § 681 SENSE

The August 6, 1993 so-called "summary judgment", which was later vacated, addressed itself to some, but not to all, issues in LCR's foreclosure suit. ⁸ That decision does not rise to the level of a judgment in the 12 O.S.1991 § 681 ⁹ sense. ¹⁰ No judgment may arise from a ruling that disposes of but a portion of an entire claim and leaves unresolved other issues joined by the pleadings. ¹¹ Because the August 6 memorial does not resolve all of the issues in the case, ¹² it clearly falls short of a judgment. ¹³ It is hence to be treated as but an intermediate order in the case. ¹⁴

B

THE JULY 6, 1994 VACATION ORDER DOES NOT QUALIFY AS

APPEALABLE BECAUSE IT WAS NOT MADE IN RESPONSE TO

AN AUTHENTIC TERM-TIME MOTION TO VACATE

OR TO A TRUE MOTION FOR NEW TRIAL

After the August 6 "summary judgment" was entered, Linwood unsuccessfully moved for a "new trial". The trial court then reconsidered its ruling that denied "the new trial" and vacated, on September 13, 1993, LCR's earlier (August 6) summary adjudication. A second (and more complete ) memorial of the vacation ruling was entered on July 6, 1994. The appeal was brought to review this last memorial.

The July 6 order cannot be treated as a term-time vacation order in the 12 O.S.1991 § 1031.1 sense. It is not addressed to a judgment, decree or appealable order. ¹⁵ Neither can it pass muster under the rubric of 12 O.S.1991 § 651 ¹⁶ as a judicial response to a true new trial motion. Because the August 6 ante judgment summary adjudication [which the July 6 order vacated] is but an intermediate order in the case, ¹⁷ it remained within the trial judge's complete control to modify or alter at any time before judgment. ¹⁸ Linwood's so-called "motion for new trial" is to be treated as a request for reconsideration of an intermediate ruling in the case. ¹⁹ The trial court's July 6 response to that request may not hence be treated as an appealable ruling made upon a § 651 or a § 1031.1 motion. ²⁰ To qualify under the cited sections, the motion must be directed to a final order or judgment.

C

BECAUSE THE JULY 6 ORDER IS NEITHER APPEALABLE BY RIGHT NOR

ADVANCED FOR PREJUDGMENT REVIEW BY A LEGALLY

ACCEPTABLE CERTIFICATION, LCR'S APPEAL

MUST BE DISMISSED

Since the July 6 memorial clearly is not appealable either as a final order or judgment in the case, ²¹ our next task is to determine whether it is an interlocutory order which (a) could be appealed by right under the provisions of 12 O.S.1991 § 993, (B)²² qualifies for certiorari review under the terms of 12 O.S.1991 § 952(b) ²³ (because it An intermediate order leaves the parties in court until all other issues on the merits of the action stand resolved. ²⁵ The July 6 nisi prius order was in essence a judicial response to a motion to reconsider an intermediate ruling in the case. That pre-final ruling (which does not qualify as a term-time vacation of a judgment or a new trial grant ²⁶) cannot be appealed by right under the terms of § 993.

affects a substantial part of the controversy's merits), or (c) could be advanced for appellate review under the terms of 12 O.S.Supp.1993 § 994 ²⁴ (because it adjudicates some legally severable claim that was completely decided and then advanced for review before all other claims stood judicially resolved).

No certified questions are tendered by the July 6 order's text. That order clearly (a) does not meet the requirements for certiorari review under the terms of 12 O.S.1991 § 952(B) AND (B)²⁷ fails to embody the trial judge's § 994 ²⁸ certification that would advance the case for appellate review before all claims have been decided.

IV SUMMARY

LCR correctly urges that the Court of Appeals was without power to reinquire into the earlier Supreme Court ruling that declares its appeal timely. This is so because the (Supreme Court) order in question did not, by an addition to its text of the qualifying phrase "without prejudice to renewal", invite post-assignment re-examination by the Court of Appeals.

LCR's appeal for review of the order vacating the summary adjudication in its favor must be dismissed. The July 6 memorial, from which this appeal was brought, is but an interlocutory judicial action which sets aside an earlier intermediate ruling in the same case. It is hence unreviewable in advance of judgment.

Because the July 6 vacation order constitutes a judicial response to what was really a quest for reconsideration of a nonappealable intermediate ruling--rather than a true new trial motion (§ 651) or a term-time motion to vacate (§ 1031.1)--it cannot be appealed by right under the terms of § 993. The critical memorial's text also lacks the nisi prius certification that is necessary to make it either (a) reviewable...