Union Oil Co. v. Board of Equalization

OPALA, Justice,

with whom ALMA WILSON, C.J., and HODGES, J., join, dissenting.

Today’s pronouncement holds that the Board of Equalization of Beckham County [Board] is precluded from relitigating, for a succeeding tax year, the question whether the Bruner gas plant of Union Oil Company of California [Union] is exempt from taxation. The court reasons that the identical issue had been litigated and determined by an earlier June 10,1992 summary judgment for Union. I cannot accede to the court’s analysis.

While the record reflects an earlier judgment’s entry in favor of Union, the judgment roll1 facially indicates that the process was rested on the Board’s confession of judgment. It cannot hence be said that in the earlier case the Board was afforded a “full and fair opportunity” to litigate the gas plant’s taxability. An opportunity to so do is a critical predicate for an earlier judgment’s fitness as an issue preclusion bar.

I

UNION’S JUNE 10, 1992 JUDGMENT CONSTRUED WITHIN THE FOUR CORNERS OF THE JUDGMENT ROLL

A

THE ANATOMY OF LITIGATION

After Union’s Bruner gas plant was assessed for ad valorem and personal property taxes for the 1991 tax year, separate protests against the assessments were filed and denied. Union appealed to the district court each 1991 assessment. After the appeals were consolidated, Union moved for summary judgment. Though represented by the district attorney’s office, the Board failed to respond and on June 10, 1992 a nisi prius judgment went to Union. The trial judge’s *1337handwritten memorial entered upon the journal of the ease sets out:

⅛ [plaintiffs] M/S [motion for summary judgment] presented and argued in C91-132 and 138 by Brian Peterson; A [defendant] by Charles Calloway, Asst. DA orally responded that certificate of mailing went to DA in Sayre and not to him in Mangum, and was received by DA 2 days prior to response time. No response to M/S having been filed or extension of time requested by State through DA even though M/S on file for 42 days. Motion deemed confessed and S/J granted tt in both eases.
/s/ Charles L. Goodwin”

[Emphasis mine.]

When the Beckham County Assessor replaced the Bruner gas plant on the 1993 tax rolls, Union once again protested. Denied the relief sought, it then appealed to the district court. There, Union asserted that its earlier 1992 judgment barred from relit-igation the gas plant’s taxability for later tax years unless a change in operation, value or condition of its property were shown.2 The trial court ruled the Board “estopped” by issue preclusion and gave judgment to Union on March 23,1994.3

The Board appealed and the Court of Appeals reversed Union’s judgment ruling that the earlier (1992) judgment was not fit for issue preclusion. Union’s certiorari quest followed.

B

THE PARAMETERS OF THE 1992 JUDGMENT

A motion for summary judgment tenders the ease for adjudication upon application of the law to uncontroverted facts which, on all material issues, support but a single inference in favor of the movant.4 A party’s failure to respond does not result in a confession of judgment, but in the admission of all undisputed material facts in the movant’s statement which are supported by admissible material5 Spirgis v. Circle K Stores, Inc.6 requires — as a predicate for summary judgment — that the nisi prius judge examine the evidentiary material on file to determine (1) that the movant’s materials show no substantial controversy as to the material facts and (2) that these facts can be supported by admissible evidence.7

The judgment roll in the 1992 action clearly demonstrates that the trial judge viewed the Board’s failure to respond as its “confession” of judgment.8 His decisional process is hence inconsistent with the Spirgis-com-manded affirmative duty to review and assay the sufficiency of materials tendered in summary-judgment process.9

*1338II

THE TEST FOR DETERMINING IF AN EARLIER JUDGMENT MAY BE INTERPOSED FOR ISSUE PRECLUSION

Under the doctrine of issue preclusion (collateral estoppel),10 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.11 The principie may not he invoked when the party against whom the earlier decision is interposed did not have a “full and fair opportunity” to litigate that issue in the previous case.12

The issue preclusion bar is distinct from that of “claim preclusion” (res judicata). Under the latter principle, a final judgment on the merits of an action precludes the parties from relitigating not only the adjudicated claim but also any theories or issues that were actually decided, or could have been decided, in that action.13

Oklahoma’s extant jurisprudence holds that res judicata applies only to those tax proceedings which deal with the same claim for the same tax years. When tax proceedings involve similar claims for different tax years, issue preclusion (collateral estoppel) is applicable.14 Issue preclusion (rather than res judicata) is the only concept interposable here.

III

THE JUDGMENT ROLL IN THE EARLIER PROCEEDING (FOR THE 1991 TAX YEAR) FACIALLY REVEALS THAT THERE WAS NO FULL AND FAIR OPPORTUNITY TO LITIGATE THE GAS PLANT’S TAXABILITY; HENCE, THE TEST FOR AVAILABILITY OF ISSUE PRECLUSION IS NOT MET

Even though the 1992 judgment satisfies the law’s criteria for res judicata effect, it cannot qualify for issue preclusion unless there was a full and fair opportunity to litigate the gas plant’s taxability,15 The judgment roll in the earlier action is facially tainted by its affirmative disclosure that the decisional process — which led to the critical judgment — does not meet the Spirgis16 requirement. This is so because it facially demonstrates that the trial judge deemed judgment confessed by the Board’s failure to respond to Union’s motion for summary judgment. The 1992 judgment is hence unfit for interposition as an issue preclusion bar.

IV

SUMMARY

The criteria for claim (res judicata) and issue preclusion (collateral estoppel) are not identical. The availability of the latter doctrine is conditioned upon a “full and fair *1339opportunity” to litigate the issue sought to be barred by the earlier judgment.

The 1992 judgment roll affirmatively shows that the trial judge had erroneously rested his judgment on the Board’s confession (of judgment) by failure to respond. This facially apparent,, fatal flaw makes the 1992 judgment unfit for issue preclusion. I hence dissent from today’s holding.

. “Judgment roll" is synonymous with “common-law record" and the court’s “record proper”. See Messenger v. Messenger, Okl., 827 P.2d 865, 870 n. 20 (1992); Veiser v. Armstrong, Okl., 688 P.2d 796, 800 n. 10 (1984); Mid-Continent Pipe Line Co. v. Seminole County Excise Bd., 194 Okl. 40, 146 P.2d 996, 1000 (1944). It includes the petition, process, return, all subsequent pleadings, reports, verdicts, orders, judgments, and all material acts and proceedings of the court. See 12 O.S.1991 § 32.1; see also Pettis v. Johnston, 78 Okl. 277, 190 P. 681, 700 (1920).

The judgment roll’s statutory definition has remained the same for over 100 years. For an extensive discussion of the judgment roll, its history, and its elements, see A. Freeman, A Treatise of the Law of Judgments §§ 175-193 (5th ed. 1925).

. The Board concedes that there have been no changes in the operation, value or condition of Union's gas plant since the 1991 tax year. See Board's "Answer in Opposition to the Petition for Certiorari”, p. 3. Admissions made in the briefs may be considered as supplementing and curing an otherwise deficient appellate record. Reeves v. Agee, Okl., 769 P.2d 745, 753 (1989); Womack v. City of Oklahoma City, Okl., 726 P.2d 1178, 1181 (1986); Timmons v. Royal Globe Ins. Co., Okl., 713 P.2d 589, 592 n. 10 (1985).

. In its March 23, 1994 judgment the trial court found:

"3. The Court will treat Union’s Motion as one raising estoppel by judgment of the previous case between these parties on the same issues which was decided by confession and from which the Board neither moved to vacate nor appeal.” [Emphasis mine.]

. Hulsey v. Mid-America Preferred Ins. Co., Okl., 777 P.2d 932, 936 n. 15 (1989).

. Spirgis v. Circle K Stores, Inc., Okl., 743 P.2d 682, 684 (1987) (approved for publication by the Supreme Court).

. See Spirgis, supra note 5.

. Id. at 685.

. See supra section IA, for the text of the trial judge’s order of June 10, 1992.

. A default judgment is supported either by a party’s failure to defend against the claim or a party’s confession of judgment. See Rule 4(e), Rules for District Courts of Oklahoma, 12 O.S. 1991, Ch. 2, App., which provides:

“Any party opposing a motion, except those enumerated in Section c above, shall serve and file a brief or a list of authorities in opposition within fifteen (15) days of the service of the motion, or the motion shall be deemed confessed." [Emphasis mine.]

*1338Here the judgment roll in the earlier (1992) proceeding gives the appearance of a judge-imposed confession of judgment as a form of sanction against the Board for failure to respond to Union’s motion for summary judgment.

. Fent v. ONG, Okl., 898 P.2d 126, 133 (1995). Issue preclusion and collateral estoppel are two different names for the same legal doctrine. The former was introduced through the Restatement; the latter is a common-law term of long usage. Restatement of Judgments (Second) § 27, Comment b; Underside v. Lathrop, Okl., 645 P.2d 514, 517 n. 8 (1982); Veiser, supra note 1 at 799 n. 7.

. Allen v. McCurry, 449 U.S. 90, 94-95, 101 S.Ct. 411, 414-15, 66 L.Ed.2d 308 (1980); Underside, supra note 10 at 516-17; Chambers v. City of Ada, Okl., 894 P.2d 1068, 1072 n. 5 (1995); Wilson v. Kane, Okl., 852 P.2d 717, 722 n. 23 (1993); Veiser, supra note 1 at 800. See also Robinson v. Volkswagenwerk AG, 56 F.3d 1268, 1272 (10th Cir.1995).

. Fent, supra note 10 at 133; Underside, supra note 10 at 516; Veiser, supra note 1 at 800; McCurry, supra note 11, 449 U.S. at 95, 101 S.Ct. at 415.

. Wilson, supra note 11 at 722; McCurry, supra note 11, 449 U.S. at 94, 101 S.Ct. at 414; ReSTATEMENT OF JUDGMENTS, (SECOND), SUprd note 10 at 852.

. Boy Scouts of America, Inc. v. Thompson, Okl., 380 P.2d 705, 708 (1963).

. There are circumstances in which judgments that meet res judicata criteria are not available for issue preclusion. For example, see Helvering v. Mitchell, 303 U.S. 391, 397-98, 58 S.Ct. 630, 632-33, 82 L.Ed. 917 (1938); United States v. One Assortment of 89 Firearms, 465 U.S. 354, 360-62, 104 S.Ct. 1099, 1104, 79 L.Ed.2d 361 (1984).

. See Spirgis, supra note 5.