MILLER DOLLARHIDE, P.C. v. TAL

MILLER DOLLARHIDE, P.C. v. TAL
2006 OK 27
174 P.3d 559
Case Number: 100179
Decided: 05/02/2006
As Corrected: May 9, 2006
THE SUPREME COURT OF THE STATE OF OKLAHOMA

MILLER DOLLARHIDE, P.C., Plaintiff/Appellee,
v.
MOSHE TAL, Defendant/Appellant.

CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION III

THE HONORABLE DAVID HARBOUR, TRIAL JUDGE

¶0 The appellant, Moshe Tal (client) filed a malpractice action against the appellee, Miller Dollarhide (law firm) in the District Court of Oklahoma County, Oklahoma. The law firm brought a counterclaim for unpaid legal fees. Tal, who had previously entered a pro se appearance, dismissed the malpractice action against the law firm, but failed to appear for a scheduling conference on the counterclaim. The trial court entered a default judgment in favor of the law firm on the counterclaim. Both before and after the default judgment was entered, Tal sought disqualification of the Honorable David Harbour, trial judge. The trial judge refused to disqualify several times, and on two separate occasions the Chief Judge of Oklahoma County refused to grant a motion to re-assign the case. Simultaneously, the client raised the disqualification issue in an original mandamus action in this Court and an appeal which was assigned to the Court of Civil Appeals. This Court assumed original jurisdiction in the mandamus action, but denied relief in a single sentence order. On appeal, the Court of Civil Appeals refused to consider the disqualification issue on the grounds that this Court's order denying relief was the binding law of the case. We granted certiorari to determine whether by assuming jurisdiction and denying relief, our action barred the Court of Civil Appeals from considering the issue on appeal. We hold that it does not. We remand the case to the Court of Civil Appeals to decide in the first instance whether there is any merit to Tal's claim of bias.

CERTIORARI PREVIOUSLY GRANTED;
COURT OF CIVIL APPEALS OPINION VACATED;
CAUSE REMANDED TO THE COURT OF CIVIL APPEALS.

Jack S. Dawson, Mark Edmondson, Oklahoma City, Oklahoma, for the Appellee
Moshe Tal, Oklahoma City, Oklahoma, for the Appellant

KAUGER, J.:

¶1 The question presented is one of first impression. Does an order of this Court assuming original jurisdiction, but denying mandamus relief as it relates to a pending controversy between the parties, bar review on direct appeal of the same claims made in the course of the mandamus proceedings? We hold that the summary denial of the writ should not be given preclusive effect in proceedings on direct appeal.

FACTS

¶2 Only the following facts are relevant to the disposition of this appeal.

¶3 Tal first sought to remove the trial judge when he made a written in camera request under District Court Rule 15

¶4 However, that was not the last time Tal sought the trial judge's recusal and/or disqualification. On October 30, 2003, the trial court entered a default judgment against Tal for failing to appear at a scheduling conference and set a date for a hearing on damages. Tal then sought vacation of the default judgment, and on November 24, 2003, the parties appeared for a hearing before the trial court on the motion to vacate. During that hearing, Tal again sought the trial judge's disqualification, which was denied. Tal filed a renewed motion to disqualify, and the motion was considered and denied by both the trial court and the Chief Judge. In denying the motion, the Chief Judge found no additional evidence of bias requiring disqualification occurring between the filing of the two disqualification motions.

¶5 Pursuant to Rule 15(b), Tal brought a mandamus action in this Court to review the denial of his motion. At the same time, Tal also brought a direct appeal from the denial of his motion to vacate the default judgement, in which he argued that the trial judge should have been disqualified because of bias. On February 17, 2004, this Court assumed original jurisdiction in the mandamus action but we declined "to disqualify the trial judge in both cases."

THE SUMMARY DENIAL OF MANDAMUS RELIEF HAS NO PRECLUSIVE EFFECT

A. The Record Was Properly Preserved for Appeal

¶6 First, we must address Miller Dollarhide's contention that the disqualification was not properly preserved for review on direct appeal. Tal engaged in two separate attempts under Rule 15 to disqualify the trial judge because of perceived bias. The first attempt began with Tal's February, 2003 in camera letter requesting recusal. When his request was denied, Tal filed a timely formal motion in the trial court. The record is silent on why that motion was not considered by, or ruled upon by the trial court, but under our decision in Clark v. Board of Education of Indep. Sch. Dist. No. 89,

¶7 At this point, Tal was entitled, pursuant to Rule 15(b), to bring a mandamus action in this Court within five days of the Chief Judge's order denying relief. However, Tal chose not to seek mandamus relief from the order as it applied to this case. Rather, Tal stood on the record, and under our holding in Pierce v. Pierce,

B. The Exercise of Original Jurisdiction Alone is Insufficient to Create a Preclusionary Effect

¶8 The Okla. Const. art. 7 §4 sets forth our authority to assume original jurisdiction for the consideration of writs of mandamus.

¶9 We cannot agree that our decision to assume jurisdiction creates such a broad preclusive effect. When this Court acts to assumes original jurisdiction, we are exercising our constitutional authority to consider and decide a pending matter involving our general superintending control over all inferior courts, commissions and boards.

C. The Denial of a Writ of Mandamus Generally Has No Preclusionary Effect as to Underlying Legal Claims

¶10 In order to be entitled to mandamus relief, a petitioner must generally meet a five factor test: 1) the party seeking the writ has no plain and adequate remedy in the ordinary course of the law; 2) the party seeking the writ possesses a clear legal right to the relief sought; 3) the respondent has a plain legal duty regarding the relief sought; 4) the respondent has refused to perform that duty; and 5) the respondent's duty does not involve the exercise of discretion.

¶11 Our sister jurisdictions considering this issue have generally adopted the rule that a denial of a writ of mandamus by a supervisory court, without opinion, is not entitled to preclusive effect.

". . .if the denial followed a less rigorous procedure, [than that of full argument and opinion], it should not establish law of the case. To be sure, the court on a later appeal might often reach the same result as before. But it is not required to do so by the law of the case doctrine . . . A summary denial of a writ petition does not establish law of the case whether or not that denial is intended to be on the merits or is based on some other reason. . ."

". . . To be sure, given the lack of explanation in the order concerning the reasons for denial of relief, it cannot be said that the entry of the order precludes further consideration under the doctrines of res judicata or law of the case. [Citation omitted.] It can be said, however, that the Court of Appeals saw no reason at that time to intervene for the purpose of "enlarging the record"; and, precisely because the mandamus proceeding had no preclusive effect, the Court of Appeals will yet have another opportunity on final appeal, if it chooses, to revisit the disqualification issue . . . ."

¶13 We find this rationale persuasive, and hold that our summary denial of a writ of mandamus, even after we have assumed jurisdiction, has no preclusive effect. Our opinion in McMinn v. City of Oklahoma City,

¶14 In deciding whether the law of the case doctrine applied we looked to: 1) the issues actually presented to the Court of Civil Appeals in the prior appeal; 2) the issues specifically addressed by the Court of Civil Appeals in its prior opinion; and 3) those issues necessarily decided by the Court of Civil Appeals in order to reach its prior holding. In concluding that the doctrine did apply, we held that both of the issues presented in the second appeal were previously presented in the prior appeal, that both issues were specifically addressed in that prior opinion, and that both issues were necessary to the COCA's resolution of the prior appeal.

¶15 McMinn is distinguishable from the instant case, because McMinn involved the preclusive effect of a prior appellate opinion. Here, there was no opinion; rather, we issued a single sentence order denying relief. Where there is a prior opinion, we will apply those factors discussed in McMinn to determine the preclusive effect of that opinion, and the party asserting the bar will bear the burden to show that the prior opinion did in fact adjudicate the issue on the merits.

¶16 Our disposition of the question presented requires us to vacate the opinion of the Court of Civil Appeals. Rule 1.180(b) of the Supreme Court Rules, 12 O.S.2001 Ch. 15, App. 1,

CONCLUSION

¶17 The merits of granting or denying mandamus are often different than those of the underlying claims, and we will not presume that we have adjudicated the underlying merit issues, even if we have exercised our discretionary power to review the petition itself by assuming jurisdiction. Where a party seeks to establish that the issue in contention was raised and adjudicated before this Court in an original proceeding for an extraordinary writ, the fact that this court assumed jurisdiction, standing alone, is not dispositive. Rather, we look to the order itself to determine its preclusive effect. We will not assume, from an order silent on rationale, that our denial of relief was on the merits of the underlying claim. Our summary denial of mandamus relief, without an opinion, should not be given preclusive effect. We therefore remand the case to the Court of Civil Appeals to decide the merits of Tal's claim of trial court bias.

CERTIORARI PREVIOUSLY GRANTED;
COURT OF CIVIL APPEALS OPINION VACATED;
CAUSE REMANDED TO THE COURT OF CIVIL APPEALS.

WATT, C.J., WINCHESTER, V.C.J., LAVENDER, KAUGER, EDMONDSON, TAYLOR, COLBERT, JJ. concur.

HARGRAVE, OPALA, JJ. dissent.

FOOTNOTES

1 The voluminous record in the case on appeal consists of 3,322 pages of filings and 21 transcripts.

2 In another companion action, Mr. Tal's corporation was sued by Burlington Northern and Santa Fe Railway Company. That case was assigned to the same District Judge as Mr. Tal's malpractice action, and he raised similar complaints of bias in that action. While the cases are factually unrelated, they share a similar procedural history, and were the subject of the same Rule 15 mandamus proceeding in this court.

3 District Court Rule 15 provides for the following procedural process in seeking the recusal or disqualification of a District Court Judge in a pending matter:

"a. Before filing any motion to disqualify a judge, an in camera request shall first be made to the judge to disqualify or to transfer the cause to another judge. If such request is not satisfactorily resolved, not less than ten (10) days before the case is set for trial a motion to disqualify a judge or to transfer a cause to another judge may be filed and a copy delivered to the judge.

b. Any interested party who deems himself aggrieved by the refusal of a judge to grant a motion to disqualify or transfer a cause to another judge may re-present his motion to the Chief Judge of the county in which the cause is pending or, if the disqualification of a Chief Judge is sought, to the Presiding Judge of the administrative district by filing in the case within five (5) days from the date of said refusal a written request for re-hearing. A copy of the request shall be mailed or delivered to the Chief Judge or Presiding Judge, to the adverse party and to the judge who entered the original order. If the hearing before the second judge results in an order adverse to the movant, he shall be granted not more than five (5) days to institute a proceeding in the Supreme Court or the Court of Criminal Appeals for a writ of mandamus. Neither the Supreme Court nor the Court of Criminal Appeals will entertain an original proceeding to disqualify a judge or to direct a judge to transfer a cause to another judge unless it is shown that the relief sought was previously denied by the judge to whom the matter was re-presented in accordance with this rule. An order favorable to the moving party may not be reviewed by appeal or other method.

c. An original proceeding in mandamus to disqualify a judge in a civil action or proceeding shall be brought in the Supreme Court; an original proceeding in mandamus to disqualify a judge in a criminal case or proceeding shall be brought in the Court of Criminal Appeals. If mandamus is not brought in the appellate court designated as proper by this rule, the case will be transferred to the proper court either on motion or sua sponte. Art. VII, § 4 Okla. Const."

4 We note that Oklahoma County uses a rotating Chief Judge system. The record reflects that Tal's first motion to disqualify the trial judge was presented to the Honorable Susan Caswell, District Judge, while his second motion to disqualify was presented to the Honorable Jerry Bass, District Judge.

5 The motion should have been considered in the first instance by the trial court before being presented to the Chief Judge. However, the following discussion took place between the parties and Judge Harbour on the record during proceedings on April 18, 2003, and makes clear that the trial court was aware the motion was filed:

". . . THE COURT: Four, five, eight, nine. Now, you have filed a Motion to Disqualify and transfer the actions to the chief judge so they can make a reassignment. Have you filed these motions? Are these before the chief judge?

MR. TAL: Yes, your Honor.

THE COURT: So these are set now before the chief judge.

MR. TAL: It's set before Judge -

THE COURT: Before Judge Caswell."

6 Tal sought mandamus review of both this case and his companion case to which the law firm is not a party. See note 2, supra.

7 Judge Bass gave the following reasoning for his denial of the motion to disqualify at the end of the December 23, 2003 hearing:

". . . It appears to this Court, after reading the transcripts and some of the items since Judge Caswell's ruling, is that Mr. Tal is attempting to raise items that have already been disposed of by Judge Caswell in her June 5th ruling.

This Court, in no way, can find any further evidence of bias or prejudice by Judge Harbour. Therefore, Mr. Tal's motion to have Judge Harbour removed from this case will be denied. . . "

8 The Okla. Const. Art. 7 §4 states in pertinent part:

"The original jurisdiction of the Supreme Court shall extend to a general superintendent control over all inferior courts and all Agencies, Commissions and Boards created by law. The Supreme Court, Court of Criminal Appeals, in criminal matters and all other appellate courts shall have power to issue, hear and determine writs of habeas corpus, mandamus, quo warranto, certiorari, prohibition and such other remedial writs as may be provided by law and may exercise such other and further jurisdiction as may be conferred by statute."

9 Kitchens v. McGowen, 1972 OK 140, ¶¶6-7, 503 P.2d 218; In re Sewer Improvement District No. 1, 1950 OK 64, ¶8, 216 P.2d 303.

10 Hadnot v. Shaw, 1992 OK 21, n. 7, 826 P.2d 978; Panama Processes, S.A. v. Cities Services Co., 1990 OK 66, n. 10, 796 P.2d 276; Lowrance v. Patton, 1985 OK 95, ¶8, 710 P.2d 108; McGaha v. Board of Regents of Univ. of Okla., 1984 OK 81, ¶3, 691 P.2d 895; Lemons v. Lemons, 1951 OK 300, ¶21, 238 P.2d 790.

11 The doctrine of the settled law of the case, which we have recognized since 1915, provides that issues which are litigated and settled on appeal, or which could have been settled in that appeal, may not be the subject of further litigation between the parties in that case and are deemed settled. Matter of Severns' Estate, 1928 OK 64, ¶5, 650 P.2d 854.

It is also argued that doctrines of both issue and claim preclusion might also bar further litigation on this issue. Issue preclusion, also known as collateral estoppel, prevents the same issue from being re-litigated between the same parties upon a different cause of action. National Diversified Business Services, Inc., v. Corporate Financial Opportunities, Inc., 1997 OK 36, ¶11, 946 P.2d 662. Here, both actions on appeal were brought within the context of the same "cause of action."

Claim preclusion, also known as res judicata, prevents the re-litigation of previously adjudicated claims, or those claims which could have been raised but were not which have been subject to a final judgement on the merits. Id. at ¶12. While it might be argued that the mandamus proceeding was a "final adjudication on the merits" of the bias issue, claim preclusion is meant to bar causes of actions and defenses previously litigated, not legal theories of error in the context of an appeal. See Panama Processes, S.A. v. Cities Services Co., note 10, supra at n. 27; Allen v. McCurry, 449 U.S. 90, 94, 101 S. Ct. 411, 66 L. Ed. 2d 308 (1980). We do note that some of our sister jurisdictions apply claim preclusion rules to determine if a prior mandamus action was preclusive of the issues raised in a subsequent direct proceeding. See Ex Parte Shelton, 814 So. 2d 251, 254-5 (Ala. 2001); Skill Corp. v. Millers Falls Co., 541 F.2d 554, 556-7 (6th Cir. 1976). However, because of the unique posture of a Rule 15 disqualification proceeding, we hold that it is the settled law of the case doctrine, which if applicable, would preclude the assertion of this issue on direct appeal.

12 See Homesteaders v. McCombs, 1909 OK 202, ¶4, 103 P. 691.

13 For example, in Taylor v. Johnson, 1985 OK 69, 706 P.2d 896, this Court assumed original jurisdiction in a labor dispute between a police union and the City of Oklahoma City. However, the Court denied relief for the following reason:

". . . As petitioners have a suitable alternative remedy in this case through the vehicle of arbitration we decline to rule on the question which the parties seek to present."

The disposition in Taylor was on procedural grounds and was not on the merits of the underlying claims, and therefore would not serve as a bar to their relitigation. See also State ex rel. York v. Turpin, 1984 OK 26, ¶13, 681 P.2d 763 (Assuming original jurisdiction, but declining to reach the merits, where Petitioner sought to challenge Attorney General's opinion by way of writ, because such an opinion is merely advisory until such time as the question is adjudicated in the District Court.).

14 Miller Dollarhide did raise this issue in the prior mandamus proceedings, arguing that Tal had presented his bias claim on direct appeal, and therefore Tal had in effect waived his right to have us adjudicate the claims through mandamus because there was now an adequate alternative avenue for vindicating any error. Appellant's Petition for a Writ of Certiorari at 5-6.

To the extent that Miller Dollarhide now takes the position that Tal should not be permitted to raise the issues on direct appeal, the doctrine of judicial estoppel may bar that position. Capshaw v. Gulf Ins. Co., 2005 OK 5, ¶11, n. 28, 107 P.3d 595 (This doctrine provides that a party who knowingly assumed a particular position is estopped from assuming an inconsistent position to the prejudice of the adverse party. This rule ordinarily applies to inconsistent positions assumed in the course of the same judicial proceeding or in subsequent proceedings where the parties and questions are identical.). However, we do need to reach Tal's assertions of judicial estoppel, because we conclude that the prior mandamus proceedings do not bar the bias claims on direct appeal.

15 12 O.S. 2001 §1452 provides that the writ of mandamus "may not be issued in any case where there is a plain and adequate remedy in the ordinary course of the law."

16 Chandler (U.S.A.), Inc. v. Tyree, 2004 OK 16, ¶24, 87 P.3d 598.

17 Id.

18 Strother v. Bolen, 1919 OK 148, ¶10, 181 P. 299.

19 Annot., "Judgment Granting or Denying Writ of Mandamus or Prohibition as Res Judicata," 21 A.L.R.3d 206, 248 (Supp. 2003); See also Ex Parte Shelton, see note 11, supra, at 255 (Restating that the denial of relief by mandamus does not have res judicata effect.).

20 The Kowis court also noted that a short statement or citation explaining the basis for the summary denial does not transform the denial into a decision of a cause entitled to law of the case effect. Kowis v. Howard, 838 P.2d 250, 253 (Cal. 1992).

21 A party asserting a preclusion defense bears the burden of proof. Anderson v. Falcon Drilling Co., 1985 OK 13, ¶16, 695 P.2d 521.

22 Rule 1.180(b), Supreme Court Rules, 12 O.S.2001 Ch. 15, App. 1, provides in pertinent part:

"Issues not presented in the petition for certiorari may not be considered by the Supreme Court. Provided, however, if the Court of Civil Appeals did not decide all of the properly preserved and briefed issues, the Supreme Court may--should it vacate the opinion of the Court of Civil Appeals--address such undecided matters or it may remand the cause to the Court of Civil Appeals for that Court to address such issues . . . ."