Federal Deposit Insurance Corp. v. Moss

OPALA, Chief Justice, with whom SIMMS, Justice, joins,

dissenting from the court’s failure to dismiss this appeal.

The court’s pronouncement holds, inter alia, that the plaintiff/appellant (FDIC) tenders for review an appealable decision. Although the adjudication from which corrective relief is sought gave the defendant/ appellee (Moss) “summary judgment” on his counterclaim for setoff, it left undetermined not only FDIC’s own claim but also other material issues raised by Moss’ quest for affirmative relief against FDIC. I would dismiss this appeal because (1) the decision before the court is clearly revealed by the record to be but a nonappealable partial summary adjudication and (2) even if we assumed, contrary to the record, that the trial judge intended to give Moss a free-standing, executable judgment, the disposition of Moss’ claim while FDIC’s remains pending lacks the attributes of ap-pealability. The claims of both FDIC and Moss are indeed interrelated1 and must be decided to make the disposition ap-pealable as a judgment within the meaning of 12 O.S.1981 § 681.2 I would so hold.

I.

THE ANATOMY OF LITIGATION

FDIC sued Moss to recover on a promissory note in default. Moss denied that the obligation was past due, disputed the amount, and pleaded setoff based on matured certificates of deposit allegedly held by FDIC. He also counterclaimed for an accounting and payment of funds due him in excess of his total indebtedness.3 Moss *621later pressed a “partial summary judgment” plea, which the trial court sustained. This appeal is from that decision. According to the appellate briefs, FDIC’s claim remained pending when it brought its petition-in-error.

II.

FDIC HAS TENDERED NO APPEAL-ABLE DECISION FOR THIS COURT’S REVIEW

By definition, a “partial summary judgment,” or more precisely, a partial summary adjudication, disposes of less than all of the issues in a claim for relief.4 Decisions under this rubric are not appeal-able, unless they fall into a class of interlocutory orders appealable by right or are certified for immediate appellate review.5 Although the court treats the nisi prius order in this case as an immediately executable judgment against FDIC, the record appears to refute that characterization.

Moss had expressly asked the trial court for a ruling on but a single issue — whether there is any factual dispute over the mere “existence of deposits and total liabilities” due him in the amount of $90,136.76.6 Specifically excluded from consideration below were the other issues joined by Moss’ claim for affirmative relief.7 The journal entry and a signed courtroom minute explicitly sustain no more than Moss’ “Motion for Partial Summary Judgment. ” Although the journal entry bears added language indicating “judgment” had been rendered and describing Moss as “prevailing party,” 8 I nonetheless consider the adjudication as no more than interlocutory.9 There can be no judgment when the court disposes of but a portion of the claim and leaves unresolved issues joined by the pleading.10

*622When construing the terms of an ambiguous order, this court will examine the four corners of the record before it to interpret the trial judge’s decision.11 The order must not be construed as giving more relief than that which was intended or demanded.12 In light of the record before us, the trial judge could not have reasonably intended to give Moss a judgment, nor did the latter expect more than a summary disposition, far short of a judgment, of some issues in the case. The court’s opinion hence gives the trial court’s decision a more sweeping effect than that sought by Moss and warranted by the record made below.

This appeal should be dismissed. The nisi prius order, over which the court today takes reviewing cognizance, presents but a nonappealable, interlocutory summary adjudication.13

ill.

EVEN IF THE DECISION AGAINST FDIC HAD DETERMINED MOSS’ ENTIRE COUNTERCLAIM, THE ADJUDICATION WOULD STILL LACK THE ATTRIBUTES OF APPEALA-BILITY

Assuming, arguendo, that the trial court intended to and did dispose of Moss’ entire quest for relief in advance of adjudicating FDIC’s claim against him, this appeal should nonetheless be dismissed for want of an appealable decision. The issues joined by Moss’ demand for setoff are directly related to those raised by FDIC’s yet unresolved claim.14 “All interrelated claims must be decided before judgment will be deemed to have been rendered.”15 A decision on Moss’ setoff claim alone clearly cannot constitute a judgment.16

The very nature of setoff — whether asserted as a defense, counterclaim or cross-claim 17 — denotes a direct relationship with the opposing claim.18 It serves to reduce *623the liability sought to be imposed.19 There hence can be no judgment until both the claim and the setoff are adjudicated.20 This would also be true if the terms of 12 O.S.Supp.1990 § 1006(A)21 had been in effect when the decision in this case was made. (Effective June 1, 1991, *624subsection (A) is now § 1006. Okl.Sess.L. 1991, ch. 251 § 18 at 1768.) Section 1006 deals specifically with orders upon multiple claims. It does not authorize the entry of a judgment when only some portions of an entire claim are determined,22 nor does it sanction multiple judgments in an action where several claims are pressed. In the absence of “an express determination that there is no just reason for delay and upon an express direction for the filing of judgment,” the adjudication of “one or more but fewer than all of the claims”in an action will not constitute a judgment.23 Section 1006 thus preserves the general rule — embodied in 12 O.S.1981 § 681 24 — that a judgment must include the disposition of all the claims pressed in an action but allows prejudgment orders that dispose of an entire claim to be severed by the trial court for review in advance of judgment. In this manner our procedural regime protects against the unfairness that would arise if a judgment that is immediately executable were to be given a party on a setoff demand while the claim initially pressed against that party remained undecided.25

I would dismiss this appeal.

. The claims are interrelated within the teachings of Eason Oil Co. v. Howard Engineering, infra note 14, when they arise out of the same occurrence or transaction or when one claim may be set off against another. See Part III of this opinion.

. The terms of 12 O.S.1981 § 681 are:

"A judgment is the final determination of the rights of the parties in an action."

. In his amended answer Moss plead as an affirmative defense:

" * * * FDIC currently holds funds ... that are the property of [Moss].... Said funds ... are sufficient to fully discharge the indebtedness owed by [Moss].... [Moss], hereby, formally elects, as is his right, to have said funds applied to the indebtedness owed by him to [the bank] ... in full satisfaction thereof."

This allegation "states a pro tanto defense by way of set-off." Brown v. Holden, Okl., 410 P.2d 528, 533 (1966).

*621Moss denominated his demand as a "counterclaim” by the following language:

" * * * FDIC currently holds funds in an amount in excess of the total indebtedness of [Moss] ... in the form of deposits seized_ [Moss] is entitled [sic] for an accounting for said funds, and payment of the net surplus of said funds....”

. Reams v. Tulsa Cable Television, Inc., Okl., 604 P.2d 373, 374 (1979).

"Summary adjudication” serves to highlight the essence of the decisional process when some issues are summarily determined but no judgment is rendered. This terminology appears to have been adopted by the Committee on Rules of Practice and Procedure of the U.S. Judicial Conference in its most recent proposal to revise Rule 56, F.R.Civ.P. “FRCP 56 on summary judgment is completely rewritten. The procedure is described as summary adjudication, to include both summary judgment disposing of an entire claim or defense, and a summary determination that does not resolve an entire claim.” Federal Practice Advisory at 2 (Sept. 9, 1991).

. Reams v. Tulsa Cable Television, Inc., supra note 4 at 374.

. Moss' brief in support of his “Motion for Partial Summary Judgment" prominently states:

" * * * [T]he claims of Ted A. Moss for an accounting and his allegations that the Bank of Newcastle did not properly credit payments made against his Note at Bank of Newcastle are not at issue in this Motion for Partial Summary Judgment. The sole issue to be presented in support of this Motion for Partial Summary Judgment is whether there is any material dispute of fact as to the existence of deposits and total liabilities of the Dill State Bank for which Ted A. Moss is entitled to be paid in the total amount of 190,136.76." (Emphasis added.)

. See supra note 6.

. I consider as problematic the following language quoted from the journal entry:

"IT IS NOW, THEREFORE, THE JUDGMENT AND ORDER OF THE COURT that the Motion for Partial Summary Judgment of Defendant, Ted A. Moss, be and hereby is sustained and that he be awarded judgment in the total amount of $90,136.76. The award of costs and attorney[]s fees to [Moss] ..., as prevailing party, are deferred pending further application therefore by Defendant." (Emphasis added.)

. See Hutchison v. Wilson, 136 Okl. 67, 276 P. 198, 200 (1929), where the court recognized that "though the language of the [trial] court took the form of a final judgment,” the record clearly indicated that the judicial act was but an interlocutory order. (Emphasis added.)

. 12 O.S.1981 § 681, supra note 2; Reams v. Tulsa Cable Television, Inc., supra note 4 at 374; Oklahomans For Life, Inc. v. State Fair of Okl, Okl., 634 P.2d 704, 706 (1981); Hurley v. Hurley, 191 Okl. 194, 127 P.2d 147, 148 (1942) (the court's syllabus ¶ 3); Foreman v. Riley, 88 Okl. 75, 211 P. 495 (1923) (the court’s syllabus ¶4); Wells v. Shriver, 81 Okl. 108, 197 P. 460 (1921) (the court’s syllabus ¶ 2).

. Frazier v. Bryan Memorial Hasp. Authority, Okl., 775 P.2d 281, 285-286 (1989).

. Frazier v. Bryan Memorial Hosp. Authority, supra note 11 at 286.

. FDIC has ample legal means to bar premature execution on Moss' "victory." If Moss were to attempt enforcing the adjudication in advance of judgment in the case, the trial court’s power could be invoked to protect FDIC by quashing execution or by a general order that would define the ruling in his favor as not yet executable. If this failed, FDIC could seek prohibition to arrest all nisi prius enforcement process.

. See Eason Oil Co. v. Howard Engineering, Okl., 755 P.2d 669, 670 (1988).

. Eason Oil Co. v. Howard Engineering, supra note 14 at 672.

. 12 O.S.1981 § 681, supra note 2; Eason Oil Co. v. Howard Engineering, supra note 14 at 672; Dennis v. Lathrop, 204 Okl. 684, 233 P.2d 969, 970 (1951); Fowler v. City of Seminole, 196 Okl. 167, 163 P.2d 526 (1945); Hutchison v. Wilson, supra note 9 at 200. See also Fleming v. Baptist General Convention, Okl., 742 P.2d 1087, 1107 (1987) (Opala, J., concurring in result).

. Before the enactment of the present Pleading Code (12 O.S.Supp.1984 § 2001 et seq.j, Oklahoma distinguished between a counterclaim and a demand for setoff (also known as a cross-demand, Board of Education of Town of Ringling v. State, 172 Okl. 437, 46 P.2d 325, 327 (1935)). Counterclaims secured the defendant "full relief,” Mathews v. Sniggs, 75 Okl. 108, 182 P. 703, 706 (1919), and had to arise out of the transaction or occurrence upon which the plaintiffs claim is based, Perrault v. Holland, Okl., 360 P.2d 240, 243 (1961). Setoff, which need not have been related to the basis of the plaintiffs claim, could be asserted as a defense, counterclaim or cross-claim based upon any contract with the opposing party, Brown v. Holden, supra note 3 at 533. In one case the party demanding setoff was not entitled to a judgment for any excess over the liability sought to be imposed by the initial claim. See White v. Mitchell, Okl., 279 P.2d 950, 953 (1955).

.Repealed sections of Oklahoma’s Code of Civil Procedure espoused the interrelationship that exists between setoff and the initial claim. See, e.g., 12 O.S.1981 § 273, infra (repealed in 1984), 12 O.S.1961 § 274, infra (repealed in 1965) and 12 O.S.1981 § 324, infra (repealed in 1984). These provisions were eliminated by our present Pleading Code, which no longer recognizes any of the earlier distinctions between setoff and counterclaim. See 12 O.S.Supp.1988 § 2013, infra. For cases illustrating those distinctions see supra note 17.

The pertinent terms of 12 O.S.1981 § 273 provided:

“ * * * [E]ither party can plead and prove a setoff or counterclaim of the proper nature, in *623defense of the liability sought to be enforced by the other party, and it shall not be necessary that such setoff shall exist as between all parties_” (Emphasis added.)

The terms of 12 O.S.1961 § 274 provided:

"A setoff can only be pleaded in an action founded on contract, and must be a cause of action arising upon contract or ascertained by the decision of a court.” (Emphasis added.)

The terms of 12 O.S.1981 § 324 provided:

"In any action in which a recovery of money is sought a defendant may setoff any cause of action for the recovery of money which he has at the time the answer is filed. Where necessary to avoid delay or prejudice, the court may try the setoff separately.” (Emphasis added.)

The pertinent terms of 12 O.S.Supp.1988 § 2013 provide:

[[Image here]]
"B. PERMISSIVE COUNTERCLAIMS; CONTINGENT COUNTERCLAIMS.
"1. A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claim.
[[Image here]]
"C. COUNTERCLAIM EXCEEDING OPPOSING CLAIMS; STATUTES OF LIMITATION.
“A counterclaim may or may not diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding the amount or different in kind from that sought in the pleading of the opposing party. Where a counterclaim and the claim of the opposing party arise out of the same transaction or occurrence, the counterclaim shall not be barred by a statute of limitation notwithstanding that it was barred at the time the petition was filed, and the counterclaimant shall not be precluded from recovering an affirmative judgment. Where a counterclaim and the claim of the opposing party:
1. Do not arise out of the same transaction or occurrence;
2. Both claims are for money judgments;
3. Both claims had accrued before either was barred by a statute of limitation; and
4. The counterclaim is barred by a statute of limitation at the time that it is asserted, whether in an answer or an amended answer, the counterclaim may be asserted only to reduce the opposing party’s claim.
" * * *" (Emphasis added.)

. See the cases cited supra note 17.

. See Brandtfen & Kluge v. Hunter, 235 Mo. App. 909, 145 S.W.2d 1009, 1014 (1940), where the court held that when a setoff is pleaded it “becomes part of a single controversy ... requiring only ... one judgment;” Baldwin v. Baldwin, 37 Ohio L.Abs. 400, 47 N.E.2d 792, 793 (Ohio App.1940), which holds that when a cross-demand is asserted “only one judgment is proper;” Kramer v. K.O. Lee & Son Co., 64 N.D. 84, 250 N.W. 373, 375 (1933), holding that when a counterclaim is interposed “the judgment should fully determine" the parties’ rights; Pennsylvania Co. For Insurances On Lives, Etc. v. Lynch, 308 Pa. 23, 162 A. 157, 158 (1932), where the court observed that a defendant should have judgment on his counterclaim when it exceeds the plaintiffs established demand. These authorities are in harmony with our own statutes and cases.

See also 12 O.S.1981 § 699, infra, whose provisions, though repealed with the advent of the Pleading Code in 1984, clearly mandated but a single judgment in an action in which a party pressed for setoff.

The terms of 12 O.S.1981 § 699 provided:

"If a counterclaim or setoff, established at the trial, exceed the plaintiffs claim so established, judgment for the defendant must be given for the excess; or if it appear that the defendant is entitled to any affirmative relief, judgment shall be given therefor." (Emphasis added.)

This language is entirely consistent with the definition of judgment in 12 O.S.1981 § 681, supra note 2, whose terms have been in effect since statehood.

.The terms of 12 O.S.Supp.1990 § 1006(A), now known as § 1006, provide:

"When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the preparation and filing of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the filing of the judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims ... shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the judgment adjudicating all the claims and the rights and liabilities of all the parties is filed with the court clerk.” (Emphasis added.) Okl.Sess.L. 1991, ch. 251, § 18 at 1768.

Section 1006 is patterned after Rule 56(b), F.R.Civ.P.

. See Tolson v. United States, 732 F.2d 998, 1001 (D.C.Cir.1984).

. See the text of § 1006, supra note 21.

. For the terms of 12 O.S.1981 § 681 see supra note 2.

.See Fleming v. Baptist General Convention, supra note 16 at 1107 (Opala, J., concurring in result).