State of Oklahoma ex rel. Wilson v. Blankenship, Civ. No. 69-73.

• Decision Date: 31 October 1969
• Docket Number: Civ. No. 69-73.
• Citation: 308 F. Supp. 870
• Parties: STATE OF OKLAHOMA ex rel. J. Woodrow WILSON, Plaintiff, v. G. T. BLANKENSHIP, Attorney General, State of Oklahoma, Sun Oil Company (formerly Sunray DX Oil Company) a foreign corporation, Kerr-McGee Corporation, Phillips Petroleum Company, Riffe Petroleum Company, Baxter Land Corporation (formerly Inland Asphalt, Inc.), Defendants.
• Court: U.S. District Court — Western District of Oklahoma

308 F. Supp. 870

STATE OF OKLAHOMA ex rel. J. Woodrow WILSON, Plaintiff, v. G. T. BLANKENSHIP, Attorney General, State of Oklahoma, Sun Oil Company (formerly Sunray DX Oil Company) a foreign corporation, Kerr-McGee Corporation, Phillips Petroleum Company, Riffe Petroleum Company, Baxter Land Corporation (formerly Inland Asphalt, Inc.), Defendants.

Civ. No. 69-73.

United States District Court, W. D. Oklahoma.

October 31, 1969.

Paul W. Brightmire, Tulsa, Okl., for plaintiff.

Dale Cook and J. A. O'Toole, Oklahoma City, Okl., for defendant G. T. Blankenship.

Truman Rucker, J. P. Greve and John A. Ladner, Jr., Tulsa, Okl., for Sun Oil Co.

Coleman Hayes, Oklahoma City, Okl., for Kerr-McGee Corp.

R. B. McDermott, Tulsa, Okl., S. E. Floren, Bartlesville, Okl., and Edward J. Fauss, Oklahoma City, Okl., for Phillips Petroleum Co.

James R. Eagleton, Tulsa, Okl., and James R. Eagleton, Oklahoma City, Okl., for Riffe Petroleum Co. and Baxter Land Corp.

OPINION

BOHANON, Chief Judge.

This civil action was originally filed in the District Court of Oklahoma County, Oklahoma, and timely removed to this Court. The plaintiff instituted the action as a citizen and taxpayer under the provisions of §§ 372 and 373 of Title 62 O.S.1961, authorizing taxpayers, under certain conditions, to institute suits on behalf of the State. Plaintiff in his Amended Complaint charges that the defendants, and each of them, entered into an unlawful and joint agreement to reduce the amount of a judgment theretofore obtained by the State of Oklahoma against the defendants, except Blankenship, and further that the defendant Blankenship, as the Attorney General for the State of Oklahoma, had no lawful authority to bind the State to such an agreement; that the other defendants knew of such lack of authority; nevertheless, they agreed among themselves to achieve their objective by illegal means in procuring an agreed order to effectuate the alleged unlawful object, and in general seeks a judgment against all of the defendants here for double the amount of the reduction in the prior judgment, or a total of $5,120,411.60. In essence, this constitutes the plaintiff's claim.

This present action is ancillary to another suit in this Court instituted by the then Attorney General on behalf of the State of Oklahoma entitled State of Oklahoma, ex rel. Charles Nesbitt, Attorney General v. Allied Materials Corporation, et al. No. 65-344, said action being one brought under the Federal Antitrust Laws for damages and attorneys' fees. In action No. 65-344 the State of Oklahoma, through the Attorney General, prior to trial, reached a nominal settlement with certain of the named defendants in said action, to-wit: Allied Materials Corporation; Apco Oil Corporation; Monarch Refineries, Incorporated, and Carry-Baxter-Kennedy, Incorporated, for the total sum of $33,050.00, and a proper dismissal was filed as to these parties. After a lengthy trial before a jury, and based upon the jury's verdict, the Honorable Luther B. Eubanks, District Judge, entered a judgment against named defendants in that case for a sum of $1,548,371.31 and trebled the amount of the jury verdict as provided by 15 U.S.C.A. § 15 less the sum of $33,050.00 which sum the State of Oklahoma had received as compromise settlements from the parties dismissed as heretofore mentioned, and fixed a reasonable attorneys' fee in the sum of $285,000.00, all as provided by 15 U.S. C.A. § 15.

Thereafter each of the defendants except the Attorney General filed motions for new trial for judgment notwithstanding the verdict of the jury, which motions presented intricate, complicated and serious questions of law raising many alleged serious trial errors, the sufficiency of the evidence, errors in admission of evidence and many other alleged errors not necessary to be mentioned here, but which included alleged excessiveness of the verdict, and asked the Court as an alternative to a new trial, to order a remittitur. During the pendency of the defendants' respective motions for new trial and before passing upon said motions, the Trial Judge entered an Order on January 15, 1969,¹ the State of Oklahoma, through the Attorney General, G. T. Blankenship, Burck Bailey and Lester M. Klaus, special counsel for the State of Oklahoma and John H. Walters, General Counsel, Department of Highways, State of Oklahoma, approved and filed the ordered remittitur, and on the same date, through the same attorneys for the State of Oklahoma, and upon payment of the judgment as remitted, a satisfaction of this judgment was entered, thus closing the case.

It is this final Order dated January 15, 1969, which the plaintiff in the present case attacks on the grounds: (1) that the judgment entered in Case No. 65-344 on September 24, 1968, was a final judgment, and (2) the Attorney General had no legal authority to agree to the remittitur or the satisfaction of judgment, or otherwise, and (3) the Attorney General and other lawyers representing the State by negotiations with attorneys for defendants looking to a final settlement conspired together to do an unlawful thing; that is, to settle a final judgment in favor of the State for less than the amount thereof.

The parties to the action at bar have each filed separate Motions for Summary Judgment, and each have agreed that no evidence will be offered other than the records of the Court and exhibits in the present case and the records and exhibits of the Court in civil action No. 65-344, together with the statements and admissions made by the parties at pre-trial hearing and the sworn testimony given at such pre-trial hearing.

The first question to be considered is the legal effect or status of the judgment in Case No. 65-344 filed September 24, 1968, that is, was this a final judgment or not, while the defendants' respective Motions for New Trial were pending and then undecided. This Court holds that such judgment was not final, but was subject to change, correction, modification or the granting of a new trial, or other appropriate action.

In Suggs v. Mutual Benefit Health and Accident Association, 115 F.2d 80 (10 C.A.), a case arising in Oklahoma, the Court said at page 82:

"A judgment is not generally treated as final until a motion for a new trial or rehearing which has been entertained by the court has been disposed of. In such case the time for appeal runs from the date of such disposition. United States v. Ellicott, 223 U.S. 524, 32 S.Ct. 334, 56 L.Ed. 535. So if a motion or petition for rehearing is made or presented in season and entertained by the court, the time limit for a writ of error or appeal does not begin to run until the motion is disposed of. (citing cases)

Where the court has power to further view its judgment, it cannot be said that the judgment is final as long as it is being considered by the court. It makes no difference whether the attention of the court is directed to a further consideration of its judgment by a pleading filed as a matter of right, or by a pleading which has no standing in the case as a matter of law, or springs from the court itself."

The Court then quotes from the case of In Re Boston, etc., Ry. Co., Fed.Cas. No.1,678; 9 Blatchf. 409, 419:

"the court, in substance, stated that where the court retains a matter for further consideration, it will not be final, because decisions lying in the breast of the judge have no such effect."

And in Methvin v. Methvin (1942), 191 Okl. 177, 127 P.2d 186, at page 188, the Court said:

"In the case of Price v. Sanditen, 170 Okl. 75, 38 P.2d 533, 534, we said: `We do not believe that it was the intention of the lawmakers that the five-year period provided in section 442, supra, 12 O.S.1941, § 735, should begin to run until a judgment becomes final. Section 416 O.S.1931, 12 O.S.1941 § 681, defines a judgment as follows: "A judgment is the final determination of the rights of the parties in an action."'

We pointed out further that the test of a final judgment is whether or not the court's jurisdiction has been exhausted as to matters decided and that there could be but one final judgment in any action. It was further pointed out that the fact that an execution may be issued on a judgment does not by any means determine the finality of such judgment. It is the general rule that a judgment is not final in the sense that it is conclusive upon the parties until the losing party has failed, within the time allowed by law to perfect his appeal, or having properly perfected his appeal, until the highest court whose decision is invoked by either party upholds the decision of the trial court. Annis v. Bell, 10 Okl. 647, 64 P. 11; State ex rel. Mason v. Schmoll, Mo.App., 37 S.W.2d 972, and authorities therein cited."

Having determined that the judgment of the Court in Case No. 65-344 was not final because the same still rested in the bosom of the Court upon the motions for new trial and the request for remittitur, did the Attorney General for the State of Oklahoma have authority to file the remittitur as ordered by the Court and to accept in satisfaction the reduced amount?

Title 74 O.S.A. § 18 provides:

"The Attorney General shall be the Chief Law Officer of the State."

Section 18b provides:

"The duties of the Attorney General as the Chief Law Officer of the State shall be:

* * * * * *

(b) to appear for the State and prosecute and defend all actions and proceedings in any of the Federal Courts in which the State is interested as a party."

The plaintiff contends that the Attorney General had no authority to remit any portion of the judgment in Case No. 65-344 in view of Article V, § 53 of the Okl. Const., which in material part provides as follows:

"* * * the Legislature shall have no power to release or extinguish, or to authorize the releasing or extinguishing, in whole or in part, the indebtedness, liabilities, or obligations of any corporation, or individual, to this State, or any county or other municipal

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