Summary
stating statute of limitations on wrongful prosecution claim began to run when underlying claim was resolved in plaintiff's favor
Summary of this case from Marshall v. American Feder. of Government EmployeesOpinion
No. 60289.
February 14, 1989. As Corrected February 24, 1989.
On appeal from the District Court, Garvin County; Joe D. Shumate, trial judge, and J. Kenneth Love, successor judge, the latter of whom acted upon the motion for new trial.
The trial court gave judgment to malicious prosecution defendants on their demurrers to the petition. Plaintiffs appeal from denial of their quest for a new trial. JUDGMENT REVERSED AND CAUSE REMANDED
Bert B. Barefoot, Jr., John A. Claro, Joseph A. Claro, Messrs. Barefoot, Moler Claro, Oklahoma City, for appellants-plaintiffs.
John B. Hayes, Messrs. Looney, Nichols, Johnson Hayes, Oklahoma City, for appellee-defendant Alan Agee.
Alan Agee, Messrs. Garvin, Agee Meisel, Pauls Valley, for appellee-defendant Lamar Lawson.
In a malicious prosecution action, in which judgment was rendered on the defendants' demurrers to the petition and the plaintiffs' new trial motion was denied, the issues presented for decision are: 1) Were the errors committed in the malicious prosecution suit preserved for our review by specific allegations in the plaintiffs' new trial motion or by argument presented in open court and without objection at the hearing of that motion? 2) Were the present plaintiffs a "prevailing party" in the former suit, with legal status to bring a malicious prosecution action? 3) Was the challenged malicious prosecution petition vulnerable to defendant-Agee's demurrer for want of an allegation that the antecedent suit had been brought without probable cause? 4) Was the petition facially untimely under the applicable statute of limitations? 5) Was the defendants' interposition of a supervening-cause barrier to the plaintiffs' claim available as a ground for demurrer to the petition? and 6) Were errors in ruling on the slander-of-title theory of recovery preserved for our review? We answer the first and second questions in the affirmative, and the third, fourth, fifth and sixth in the negative.
THE ANATOMY OF LITIGATION
Douglas D. Reeves and Carol Ann Reeves [collectively called Reeves] brought a malicious prosecution action against Lamar Lawson [Supplier] and Lawson's legal counsel, Alan Agee [Agee or lawyer]. The trial court gave judgment to both defendants on their separate demurrers to the petition and denied Reeves' new trial motion.
A. The Challenged Petition's Allegations
Reeves were engaged in the cement block manufacturing business. During the period between 1972 and 1974 they had received and paid for sand sold to them by the Supplier on open account. Some of the sand delivered in 1972 was used for the construction of a building on Reeves' business property. In March 1975 the Supplier delivered for use in manufacturing cement blocks a load of contaminated sand; Reeves refused to pay both for that load as well as for some others — initially pure sand — that, after being intermixed with the later-furnished contaminated material, also became utterly unusable. The Supplier threatened to place a lien on Reeves' property unless the entire balance due were paid. At a meeting where the circumstances of Reeves' default were discussed, Reeves' then attorney informed the Supplier that the materials for which collection was sought were not lienable, though an action could be brought to recover their price on open account. Contrary to this advice, the Supplier, acting in concert with Agee, caused a lien to be placed on Reeves' property by means of a false statement reciting that some of the material for which payment was being sought had been incorporated in a building on Reeves' premises.
Reeves had made arrangements to convey their plant premises to the First National Bank of Pauls Valley [Bank] in exchange for full release of a secured obligation. When prepared documents were scheduled for execution, the Supplier's lien claim surfaced and the Bank delayed closing so Reeves could have this cloud removed. Reeves then met with Agee and disclosed to him all the facts showing the lien statement to be false and the Supplier's claim to have been impressed for the purpose of coercing Reeves' payment of an "unjust open account debt." Agee also became aware that the lien was blocking Reeves' transfer of the premises to the Bank. The Supplier and Agee reacted by amending the original lien statement to allege that the sales contract with Reeves had its inception three years earlier. With full knowledge of the falsity of the original and the amended lien statements, the Supplier and Agee, acting in concert and conspiracy, caused a foreclosure suit to be brought against Reeves and the Bank, with the malicious intent of `tieing up' Reeves' real estate. The Supplier's foreclosure suit, instituted without probable cause and to secure priority over the Bank's first mortgage lien, destroyed Reeves' opportunity to avoid further liability on their mortgage to the Bank by deeding the premises to the latter. The Bank then pressed its suit for mortgage foreclosure and later secured a deficiency judgment.
The trial court adjudged on August 31, 1978 that the Supplier had no materialmen's lien claim against Reeves' property. Reeves rely on this ruling, from which no appeal was lodged, as the successful termination of the antecedent litigation and the foundation for their malicious prosecution action. The essence of Reeves' claim is that the Supplier wrongfully encumbered their property with a false lien for more than two years, which prevented them from escaping the legal consequences of impending foreclosure. Actual damages, alleged to be $57,087.28 (the amount the Bank would have taken for the property had it been unencumbered), and punitive damages of $150,000 were sought.
B. The Trial Court's Judgment on Demurrers and its Postjudgment ruling on New Trial Motion
On January 7, 1983 the trial court gave judgment to Agee and to the Supplier on their separate demurrers to the petition, assigning but one reason for its decision — the antecedent Supplier's lien foreclosure suit against Reeves did not terminate in Reeves' favor. Taking judicial notice of that suit, to which reference was made in Reeves' petition, the trial court ruled that the Supplier was the only prevailing party in the prior case. He was the one awarded the full amount of recovery on open account even though his lien claim was later defeated. When the successor judge denied Reeves' new trial motion on May 3, 1983, he added two other reasons for the earlier judgment — (1) the malicious prosecution action was time-barred; and (2) as a matter of law, there could be no causal connection between the Supplier's filing of a materialmen's lien statement and Reeves' allegedly lost opportunity to give the Bank a cloud-free title in the mortgaged premises. We now reverse the nisi prius decision and remand the cause for further proceedings.
The Supplier's general demurrer assailed the petition for its failure to allege facts sufficient to constitute a cause of action.
Agee's demurrer was based on the petition's failure to state a cause of action for lack of two essential elements of a malicious prosecution claim: (1) that the Supplier's action against Reeves terminated in Reeves' favor and (2) that the Supplier lacked probable cause for bringing the lien foreclosure suit. Agee takes the position that as the Supplier's lawyer (a) he cannot be held liable to third parties for his client's negligence and (b) because he was totally justified in believing his client's version rather than accepting that of Reeves, the requisite lack of probable cause element is missing from Reeves' petition. The trial court's order denying a new trial did not address the probable cause issue; instead, it held the action was barred by limitation and Reeves were not a prevailing party in the former suit.
See infra notes 24 and 25.
This case, decided under the Code of Civil Procedure, is governed and must be reviewed according to the norms of that procedural regime, although it has since been repealed and now stands replaced by the Oklahoma Pleading Code.
12 O.S. 1981 §§ 1[ 12-1] et seq. (now repealed, Okla. Sess.L. 1984, Ch. 164, and replaced by the Oklahoma Pleading Code, 12 O.S.Supp. 1984 §§ 2001[ 12-2001] et seq., which became effective November 1, 1984).
12 O.S.Supp. 1984 §§ 2001[ 12-2001] et seq. (Okla.Sess.L. 1984, Ch. 164, §§ 1 et seq., effective November 1, 1984). See Rule 1, Rules for District Courts of Oklahoma, 12 O.S.Supp. 1985, Ch. 2, App., for guidance as to the applicability of the old and new procedural regimes.
C. Interconnected Appellate Litigation
The Supplier's suit spawned a number of interconnected appellate litigation, all initiated by Reeves. The first of these was their unsuccessful appeal from a default ruling for the Supplier on the money phase of the claim, rendered after Reeves had failed to appear at trial and to present a defense [ Reeves I]. Reeves' second appeal from the deficiency judgment for the Bank also met with an adverse outcome [ Reeves II]. The present appeal is from judgment on the defendants' demurrers in Reeves' malicious prosecution action against the Supplier and Agee for pressing a false lien claim [ Reeves III].
Lamar Lawson v. Douglas D. Reeves and Carol Ann Reeves d/b/a Republic Block Supply Company, No. 54,314, July 20, 1982 (unpublished Court of Appeals opinion) [ Reeves I].
Lamar Lawson v. Douglas D. Reeves and Carol Ann Reeves, d/b/a Republic Block Supply Company and First National Bank of Pauls Valley, Pauls Valley, Oklahoma, a corporation, No. 56,164, July 27, 1982 (unpublished Court of Appeals opinion) [ Reeves II]. The Bank's deficiency judgment of $50,885.37 was affirmed on appeal.
I
THE APPEAL IS NOT DISMISSIBLE FOR REEVES' FAILURE TO PRESERVE ERRORS IN THEIR NEW TRIAL MOTION
The Supplier and Agee urge this appeal is dismissible because the errors in the resolution of the malicious prosecution claim, which they present for review, were not preserved by specific allegations in Reeves' new trial motion.
The critical ground on which Reeves' new trial motion rests is:
"The Court committed fundamental error in that its decision is contrary to law; the Petition of plaintiffs is not demurrable on its face as a matter of law."
Other grounds of error urged by Reeves' new trial motion include:
"(b) The Court failed to memorialize and file an order setting forth the reason or reasons for which the demurrer was sustained all in violation of certain provisions contained in Title 12 O.S., Chap. 2, App., Rule 4. (d) [sic] Court abused sound judicial discretion by failing to provide plaintiffs additional time within which to further plead after sustaining the demurrer; further, the Court's failure to memorialize and file an order setting forth the grounds upon which the demurrer was sustained prevented plaintiffs from amending their pleadings so as to state a cause of action even if the Court had given the plaintiffs some guidelines as to why the demurrer was sustained."
The trial court's judgment on the defendants' demurrers was not rendered in open court and had not been reduced to writing when the new trial motion was filed. Reeves urge that because they did not know the precise basis for the decision when it came to be rendered, they alleged error in terms broad enough to encompass any ground the trial court might have chosen. The ruling stood memorialized when the motion was later reached for hearing. The sole basis assigned as a ground for the decision was that one element of an actionable malicious prosecution claim was missing — Reeves did not prevail in the Supplier's earlier suit.
While a party need not press for a new trial to bring an appeal from an adverse decision, if a motion is filed, the movant may not urge on appeal any error that, though available when a new trial motion was filed, was not stated in it. A new trial motion is insufficient unless its allegations inform the trial court of the specific defects in the antecedent judicial process, which avail by statute as grounds for securing the relief sought. At the hearing of a motion, lack of specificity may be cured if the movant precisely identifies each point of law that is fairly comprised within the general allegations of the defective new trial motion and the particularized explanatory comments draw no objection from the opposing party.
The terms of 12 O.S. 1981 § 991[ 12-991](a) provide:
"The right of a party to perfect an appeal from a judgment, order or decree of the trial court to the Supreme Court shall not be conditioned upon his having filed in the trial court a motion for a new trial, but in the event a motion for a new trial is filed in the trial court by a party adversely affected by the judgment, order or decree, no appeal to the Supreme Court may be taken until subsequent to the ruling by the trial court on the motion for a new trial. This provision shall not apply, however, to an appeal from an order of the Corporation Commission." [Emphasis added.]
The terms of 12 O.S. 1981 § 991[ 12-991](b) provide:
"If a motion for a new trial be filed and a new trial be denied, the movant may not, on the appeal, raise allegations of error that were available to him at the time of the filing of his motion for a new trial but were not therein asserted." [Emphasis added.]
See also Horizons, Inc. v. KEO Leasing Co., infra, note 11 at 759, and Faulkenberry v. Kansas City Southern Ry. Co., Okla., 661 P.2d 510, 513 [1983].
Federal Corp. v. Ind. School Dist., Etc., Okla.App., 606 P.2d 1141, 1143-1144 [1980] and Huff v. Huff, Okla., 687 P.2d 130, 131-132 [1984].
Horizons, Inc. v. KEO Leasing Co., Okla., 681 P.2d 757, 759 [1984].
The trial judge's successor presided at the hearing on the new trial motion. Each specific defect sought to be invoked as a ground for new trial — all of them fairly comprised within the general allegations of Reeves' motion — was argued without objection. The order denying the motion recites two additional grounds to support the judgment on the defendants' demurrers. Reeves' petition-in-error and brief-in-chief assign as error each of the grounds given by the trial court in its ruling on motion for new trial. The errors urged on appeal were hence properly preserved for our review.
If a trial judge retires after judgment is rendered, his successor in office may pass upon a timely filed motion for new trial. Wilson v. Oklahoma Ry. Co., Okla., 248 P.2d 1014, 1020 [1952].
Errors asserted in Reeves' amended petition-in-error are:
"1. The Court erred in failing to find that plaintiffs were prevailing parties in the first action capable of bringing a malicious prosecution action, by virtue of the first court's finding that the defendants' lien claim was invalid.
2. The Court erred in finding the plaintiffs' suit, filed on July 11, 1979, to be barred by the Statute of Limitations by finding that plaintiffs' suit related to an Order of May 1, 1978 concerning the money judgment issue, rather than an Order of August 31, 1978 concerning the validity of a lien claim.
3. The Court erred in failing to find defendant Agee, as the attorney for defendant Lawson in the former civil action, may be held liable for malicious prosecution.
4. The Court erred in finding that plaintiffs' Petition stated a negligence action rather than a malicious prosecution claim against defendant Agee.
5. The Court erred in finding no possible causal connection between plaintiffs' inability to convey marketable title to their property and the invalidity of the lien claim of Lamar Lawson.
6. The Court erred in finding that there were no disputed facts in question, and therefore, allowing the Demurrer to be sustained."
Errors asserted in Reeves' brief-in-chief are:
1. "The trial court could not properly sustain the appellees' general demurrers if any facts entitling the Reeves to any relief were stated in the Reeves petition."
2. "The Reeves' petition stated facts sufficient to satisfy all of the elements of a valid cause of action under a malicious prosecution theory and thus was not vulnerable to defendants/appellees' general demurrers."
3. "The Reeves' petition stated facts sufficient to satisfy all the elements of a valid cause of action under a slander of title theory and thus, was not vulnerable to defendants/appellees' general demurrers."
4. "The trial court's finding that the Reeves' petition could not be amended to state a cause of action and the court's failure to timely state the grounds upon which the demurrers were sustained prevented the Reeves from amending their petition and constituted error."
5. "Appellee Agee, acting as counsel for appellee Lawson in the prior action, is liable for his personal actions under either a malicious prosecution or a slander of title theory."
6. "Appellants' petition was filed in time to satisfy the statute of limitations under either a malicious prosecution or slander of title theory, and thus, was not vulnerable to appellees' demurrers."
II [19] THE RECORD SUPPORTS REEVES' STATUS AS A PREVAILING PARTY IN THE FORMER SUIT
In a malicious prosecution action the plaintiff must allege and prove these elements: 1) the defendant's institution of the former action; 2) its termination in plaintiff's favor; 3) the defendant's want of probable cause for pressing the former suit against the plaintiff; 4) the presence of malice in defendant's conduct; and 5) damages.
Young v. First State Bank, Watonga, Okla., 628 P.2d 707, 709 [1981]; see also Glasgow v. Fox, Okla., 757 P.2d 836, 838 [1988].
The order denying new trial held the second element was absent as a matter of law because Reeves did not prevail in the former action. Taking judicial notice of the judgment roll in the prior suit, the trial court ruled that the Supplier had sought to recover on two theories — a money claim for the unpaid account and a materialmen's lien claim in the same sum. It also concluded that, although on May 1, 1978 the trial court had ruled in Supplier's favor on the money claim phase of the suit, Reeves later prevailed in their defense against the impression of a lien claim.
The journal entry of judgment on demurrers states that the trial court "takes judicial notice of the prior action upon which this action is based, the case styled Lamar Lawson v. Douglas D. Reeves, et al., Case No. C-76-120 in the District Court of Garvin County, Oklahoma, in which the plaintiff therein, Lamar Lawson, obtained a judgment on May 1, 1978, against the defendants, . . . for the full amount prayed for although the lien which the plaintiff therein sought to enforce and foreclose was denied." Judicial notice — the court's cognizance of adjudicative facts without any proof — is part of our evidence law. See Oklahoma Evidence Code, 12 O.S. 1981 §§ 2202[ 12-2202] and 2203 [ 12-2203]. The doctrine varies with several of its distinct applications. [I] When the rule is invoked for general evidentiary purposes, the trial court has the power to dispense with proof of judicially cognizable adjudicative facts. Included in the ever expanding litany of things covered by judicial notice are matters of "common and general knowledge" that are "well established and authoritatively settled." Boatman v. Coverdale, 80 Okla. 9, 193 P. 874, 875 [1920]; see 12 O.S. 1981 § 2202[ 12-2202]. [II] While generally a trial court may take judicial notice of its own records and proceedings, McGee v. Campbell, 202 Okla. 624, 217 P.2d 174, 177 [1950], a more restrictive application of the doctrine governed under the now-repealed Code of Civil Procedure, supra note 3, when rulings were sought on demurrers to a pleading. Because the demurrer tested only the four corners of a challenged pleading, judicial notice stood limited in that context to matters tendered by the pleading's text or by reference aliunde found in its body. See infra note 17 and the cited cases. [III] Another restrictive application governs when judicial notice is relied on to supplement the record before a reviewing court. While an appellate court may take judicial notice of its own records, see cases infra note 40, it cannot notice material which, though properly available for notice by the trial court whence the case came, has not been incorporated into the record on appeal. See text and cases infra notes 19 and 23.
A demurrer cannot reach beyond the four corners of the tested pleading and those parts of the judgment roll in some other finally terminated case before the same court to which reference is made in that pleading. The function of demurrer is to test the legal sufficiency of a plead cause of action or defense.
The judgment roll, which is synonymous with "record proper," consists of ". . . the petition, the process, return, the pleadings subsequent thereto, reports, verdicts, orders, judgments, and all material acts and proceedings of the court; . . ."; 12 O.S. 1981 § 32.1[ 12-32.1], renumbered in 1972 from 12 O.S. 1971 § 704[ 12-704], Okla.Sess.L. 1972, Ch. 119, § 5; Timmons v. Royal Globe Ins. Co., Okla., 713 P.2d 589, 591, n. 10 [1986]; Veiser v. Armstrong, Okla., 688 P.2d 796, 800 [1984] and Mid-Continent Pipe Line Co. v. Seminole C. Excise Board, 194 Okla. 40, 146 P.2d 996, 1000 [1944].
The legal effect of a finally adjudicated case is measured by the four corners of its judgment roll, and, in making this assessment, no other part of a terminated case can be considered. Timmons v. Royal Globe Ins. Co., supra, and Mayhue v. Mayhue, Okla., 706 P.2d 890, 895 [1985].
James v. Unknown Trustees, Etc., 203 Okla. 312, 220 P.2d 831, 834 [1950] (the court distinguished those cases in which pleadings challenged by demurrer do not refer to any former cases involving the same parties or some related subject matter); Morgan v. Whitehead, 196 Okla. 402, 165 P.2d 338, 341 [1946]; Corliss v. Davidson Case Lumber Co., 183 Okla. 618, 84 P.2d 7, 10 [1938] and Schneider v. Decker, 144 Okla. 213, 291 P. 80, 81 [1930]. See also State ex rel. Cartwright v. Tidmore, Okla. 674 P.2d 14, 17 [1983] and Fibikowski v. Fibikowski, 185 Okla. 520, 94 P.2d 921, 926 [1939] (a trial court cannot take judicial notice of the record in cases brought in another court).
Roberts v. Barclay, Okla., 369 P.2d 808, 809 [1962]; Nutt v. Carson, Okla., 340 P.2d 260, 261 [1959] and White v. Wint, Okla., 638 P.2d 1109, 1112 [1982].
An appellate court cannot take judicial notice of material which, though properly available for notice by the trial court, has not been incorporated into the record on appeal. Admissions made in the briefs may be considered as supplementing and curing an otherwise deficient appellate record.
Eckel v. Adair, Okla., 698 P.2d 921, 924 [1985]; and Sooner Federal Sav. Loan Ass'n. v. Mobley, infra note 23 at 1004. Error may not be presumed from a silent record. The appellant must affirmatively demonstrate its presence. Eckel v. Adair, supra at 924; see also Wilson-Harris v. Southwest Telephone Co., 193 Okla. 194, 141 P.2d 986, 989-990 [1943]. When error is not shown, or its presence cannot be ascertained from an incomplete, deficient or equivocal record, an appellate court must always yield to the law's presumption that the trial court's decision is legally correct. Hamid v. Sew Original, Okla., 645 P.2d 496, 497 [1982] and Eckel v. Adair, supra.
Womack v. City of Oklahoma City, Okla., 726 P.2d 1178, 1181 [1986]; Timmons v. Royal Globe Ins., supra note 16 at 592, note 10; Norris v. Norris, Okla., 695 P.2d 506, 507 [1984]; Greenwood v. Lyles Buckner, Inc., Okla., 329 P.2d 1063, 1067 [1958] and Ramer v. State, Okla., 302 P.2d 139, 140 [1956].
The challenged petition does not inform us either that money recovery had been sought in the Supplier's earlier suit or that it was secured on May 1, 1978. That pleading recites merely that the foreclosure phase of the Supplier's claim terminated in a ruling for Reeves. The petition's reference to the Supplier's suit doubtless authorized the trial court to look beyond the four corners of the challenged petition to consider, in ruling on defendants' demurrers, the judgment roll in the earlier case and to take judicial notice of its content. Because the judgment roll in the earlier suit has not been included in the appellate record tendered for our review in this appeal, there is here absolutely no record from the prior case for our consideration. The parties unequivocally admit in their briefs that the trial court ruled on May 1, 1978 for the Supplier on the latter's claim for money, while the lien phase of the dispute, later resolved in Reeves' favor, was decided on August 31, 1978. Were it not for these critical admissions in the parties' briefs, failure to incorporate the judgment roll from the earlier suit would have been fatal to Reeves' appeal. Without the admitted facts, we would be compelled to affirm because the record would be insufficient to pass on the dispositive prevailing-party-status and the bar-of-limitation issues. A presumption of correctness attaches to the trial court's ruling and, without the entire judgment roll of the Supplier's former suit, we would have to assume that the decision here on review, based as it was on matters dehors the appellate record now before us, was indeed correctly reached. Inasmuch as the critical extra-record facts, which stand admitted in the parties' briefs, may be regarded as supplementing the incomplete appellate record and are ample to supply the deficiency, the errors Reeves urge for reversal can undergo appellate scrutiny.
See infra note 50 for discussion of the May 1, 1978 ruling's status as a money judgment.
Reeves' petition alleges in paragraph 18 that the Supplier's "suit sought to foreclose the `lien'" and "was filed in the District Court . . . Garvin County, . . . and was numbered C-76-120." According to paragraph 22, "the District Court . . . Garvin County entered judgment against the Defendant Lawson on the bogus lien claim asserted in No. C-76-120 . . . as follows: The Court finds that under the evidence and the laws of the State of Oklahoma, that the plaintiff, Lamar Lawson, is not entitled to a materialman's lien and has no right, title, interest, estate, equity or lien in and to or upon the below described property by virtue of said claimed materialman's lien.'"
When former proceedings in another case before the same court, of which a trial court may take judicial notice, are incorporated in the record, all such proceedings may be reviewed on appeal. Eckel v. Adair, supra note 19 at 923; and Wilson-Harris v. Southwest Telephone Co., supra note 19, 141 P.2d at 989-990; see also Sooner Federal Sav. Loan Ass'n. v. Mobley, Okla., 645 P.2d 1000, 1004 [1982] (supp. opinion on rehearing).
See Agee's answer brief, pgs 6, 10, 11 and 28, and Supplier's brief, p. 1, adopting Agee's brief. We also note from the recitation of facts in Reeves I, supra note 5, that on May 1, 1978 the Supplier recovered $1,302 on its money claim and, at a later date, was awarded counsel fees of $2,500. This ruling was affirmed on appeal in Reeves I, supra note 5. An appellate court may take judicial notice of its own records in litigation that is interconnected with the case on review, see infra note 40.
See Agee's answer brief, pgs 6, 10, 11 and 28, and Supplier's brief, p. 1, adopting Agee's brief.
In the absence of the judgment roll showing the critical dates, we would be compelled to presume that the judgment was supported by the complete record and to apply to the court's ruling the mandated presumption of correctness. Timmons v. Royal Globe Ins. Co., supra note 16; see also Hamid v. Sew Original, supra note 19 at 497 and Eckel v. Adair, supra note 19 at 923.
Eckel v. Adair, supra note 19 at 923, and Hamid v. Sew Original, supra note 19 at 497.
Womack v. City of Oklahoma City, supra note 20 and Timmons v. Royal Globe Ins. Co., supra note 16. See Part IV, infra, for discussion of a conflict between the parties' briefs and the recitation of facts in Reeves I, supra note 5, as to the date the lien foreclosure claim was actually decided.
When a plaintiff's suit alternately invokes two remedies for vindication of a single cause of action — e.g., a common-law claim for money and an equitable claim for foreclosure of a lien — the resolution of each alternate remedy may bring forth a different prevailing party. In The Company, Inc. v. Trion Energy the plaintiff brought a civil claim seeking two alternate remedies — either money recovery for rent due with damages to rental equipment, or lien impression with foreclosure. The trial court ruled in favor of the plaintiff on the first-invoked remedy and for the defendant on the second. The party prevailing in each remedy phase was awarded counsel fees — the plaintiff's award came to be rested upon contract and the defendant's was premised on the authority of 42 O.S. 1981 § 176[ 42-176]. The defendant's counsel-fee award was affirmed on appeal, the court holding that when two distinct remedies are pressed, there may be a different prevailing party on each.
Okla., 761 P.2d 470 [1988].
The terms of 42 O.S. 1981 § 176[ 42-176] provide:
"In an action brought to enforce any lien the party for whom judgment is rendered shall be entitled to recover a reasonable attorney's fee, to be fixed by the court, which shall be taxed as costs in the action."
The court in The Company, Inc. v. Trion Energy, supra note 29, relied on Sooner Pipe Supply Corporation v. Rehm, Okla., 447 P.2d 758 [1968]. In Rehm the trial court ruled for the plaintiff on the money claim ex contractu but the defendant prevailed on the lien claim and was then awarded counsel fees pursuant to the terms of 42 O.S. 1961 § 176 [ 42-176], the statute then in effect.
Because in the Supplier's suit Reeves, much like the defendant in Trion, defeated the lien claim against their premises, we hold that they were entitled to a prevailing-party status for the institution of their malicious prosecution action.
The result reached here is not without support in the jurisprudence of other jurisdictions, where one who partially prevails in the former action may be allowed to bring a malicious prosecution suit. See March v. Cacioppo, 37 Ill. App.2d 235, 185 N.E.2d 397, 402 [1962]; First Shelby Nat. Bank v. Mitchell, 406 So.2d 959, 962-963 [Ala. Civ. App. 1981] and Anolik v. Marcovsky, 122 Pa. Super. 133, 186 A. 418, 419 [1936]. Cacioppo concerned a lessor's earlier wrongful suit against his lessees for unpaid past due rent, as well as for rent under an unexpired lease and for having garnished the lessees' bank account. The major portion of the suit concerning rent under an unexpired lease had been terminated in favor of the lessees before the malicious prosecution action was begun. The court found this termination sufficient to allow the lessees to bring their suit without waiting for the outcome of the still pending action for past rent. The court held that defendants in a malicious prosecution action will not stand absolved of liability merely because a portion of the earlier suit might terminate in their favor. The rule in Cacioppo is that when a substantial portion of the suit, the functional equivalent of a separate claim, has been decided against the malicious prosecution defendants, and when there is reason to believe that such a separate claim was prosecuted with malice and without probable cause, a malicious prosecution suit will be maintainable. Similarly, in Mitchell, a bank had brought repossession action against a mobile home tenant. Although the bank was granted prejudgment writ of seizure, the tenant was allowed to maintain possession of the home on paying the bank the remainder due under the lease-purchase agreement. The tenant brought a malicious prosecution action and the bank argued that its former repossession action did not terminate in all respects in the tenant's favor. Because the bank secured no more than a coerced compliance with the security agreement for the mobile home, the court concluded the repossession suit was resolved in the tenant's favor.
III
REEVES' PETITION IS NOT CHALLENGEABLE BY DEMURRER FOR LACK OF OTHER REQUISITE ELEMENTS OF MALICIOUS PROSECUTION CLAIM
[28] When a demurrer is sustained on a wrong ground, this court will consider all grounds assigned, and the judgment will nonetheless be affirmed if any of the grounds may be deemed to have been well taken.Agee's demurrer also challenges the petition for its failure to state that the Supplier's earlier action had been brought without probable cause. His demurrer alleges this element of Reeves' malicious prosecution claim was not averred but rather was sought to be supplied by the allegation that Agee should have known his client was laying claim to an invalid lien. The order denying new trial does not address this issue. Instead, it states that although lawyers may under some circumstances be sued for malicious prosecution conducted in a client's behalf, the present action was time-barred and Reeves could not maintain it since they were not a prevailing party in the former suit.
See supra note 1 for the other grounds asserted in Agee's demurrer. The lack of probable cause element Reeves rely upon must be viewed as having had its inception with the filing of the Supplier's lien statement — that was the very beginning of the Supplier's quest to foreclose the claimed lien. See in this connection First Nat. Bank of Pauls Valley v. Crudup, Okla., 656 P.2d 914, 917 [1983].
We know of no rule which gives lawyers absolute immunity from liability for malicious prosecution. A demurrer can reach no more than issues of law apparent from the face of the pleading to which it is directed. Only if the challenged pleading conceded all the critical facts, from which but a single inference could be drawn, would probable cause or lack of it ever present a pure question of law for the court. Reeves' petition alleges that Agee was informed about Reeves' past dealings with the Supplier and that, armed with this information, the lawyer should have known there was no legal basis for a materialmen's lien claim. Whether Agee knew or should have known his client's lien claim was "bogus" or whether he acted in concert with the latter in a malicious endeavor to impress an invalid materialmen's lien presents a fact issue not reachable for resolution by Agee's demurrer.
See Smith v. Aaron, Aaron, Schimberg Hess, 112 Ill. App.3d 653, 67 Ill.Dec. 775, 776, 445 N.E.2d 67, 68 [1983]. Smith holds that a legal practitioner, who acts knowing that his client has no just claim and that his client is actuated by illegal or malicious motives, may be liable for malicious prosecution. A lawyer cannot always be exonerated merely by showing that he followed his client's instructions.
See 12 O.S. 1981 §§ 553[ 12-553] and 554 [ 12-554] (now repealed, Okla.Sess.L. 1984, Ch. 164, § 32); Great American Insurance Company v. Watts, Okla., 393 P.2d 236, 240 [1964]; James v. Unknown Trustees, Etc., supra note 17; and Bristow v. Carrigar, 37 Okla. 736, 132 P. 1108, 1109 [1913].
The terms of § 553 provided:
"An issue of law arises upon a demurrer to the petition, answer or reply, or to some part thereof." [Emphasis added.]
The terms of § 554 provided:
"An issue of fact arises: First, Upon a material allegation in the petition, controverted by the answer; or, second, upon new matter in the answer, controverted by the reply; or, third, upon new matter in the reply, which shall be considered as controverted by the defendant without further pleading."
Lewis v. Crystal Gas Company, Okla., 532 P.2d 431, 434 [1975].
IV [31] REEVES' MALICIOUS PROSECUTION ACTION IS NOT BARRED BY LIMITATION
Another reason assigned as a ground for the trial court's denial of new trial is that the malicious prosecution action was time-barred. The successor trial judge concluded that the time to bring Reeves' suit began to run May 1, 1978 when the Supplier secured a favorable decision on his claim for money. Because more than a year had lapsed between this ruling and the filing of the malicious prosecution suit on May 22, 1979, Reeves' action was viewed and held as barred by limitation.
For the pertinent provisions of our statute of limitations, 12 O.S. 1981 § 95[ 12-95](4), see infra note 48.
Comparing the facts recited in the Reeves I opinion with the admissions in the appellate briefs, we note a conflict as to the date when the Supplier's lien claim was decided. The Court of Appeals, which had the May 1, 1978 money claim decision under review, states in its opinion the lien claim ruling was reached the same day as the other. The parties' briefs are in complete agreement that the lien claim issue, reserved on May 1 for a later resolution, did not come to be determined in Reeves' favor until August 31, 1978.
See supra note 5 for citation to Reeves I.
An appellate court can take judicial notice of its own records in litigation interconnected with an appeal before it. See Timmons v. Royal Globe Ins. Co., supra note 16; and Chandler v. Denton, Okla., 741 P.2d 855, 861-862 [1987].
The Court of Appeals' opinion in Reeves I, supra note 5, states that: "The court's judgment of May 1, 1978, held that Lawson was not entitled to foreclose the materialman's lien but he was granted default judgment against the Reeves for the $1,302 account." [Emphasis supplied.]
Under the Code of Civil Procedure, the procedural regime in force at the time this case was decided below, a defendant could raise by demurrer the defense of limitation if the untimeliness of the action were apparent from the petition's four corners. We noted in Part II, supra, that the trial judge properly took judicial notice of the judgment roll in the earlier Supplier's action when ruling on the demurrers and that any fact either stipulated or admitted in the brief may be considered as an acceptable supplement to a deficient appellate record. Any such admitted fact would control over contrary recitation in an appellate opinion rendered in another case unless it was apparent from that opinion's context that the recited fact's consideration was necessary for the adjudication process to settle some point of law for the case at hand. An appellate opinion has a binding effect only to the extent that it pronounces the settled law for the case. It is clear to us that the May 1, 1978 recitation was not relevant to any point of law settled in Reeves I. We hence can look only to August 31, 1978 as the date the lien claim issue came to be settled below.
For discussion of the old and new procedural regimes for pleading, see supra notes 3 and 4 and the text in Anatomy of Litigation (B), supra.
See 12 O.S. 1981 § 267[ 12-267]; Lucas v. Ind. Public School Dist. No. 35, Okla., 674 P.2d 1131, 1133 [1983]; Howard v. Jeffrey, 268 P.2d 897, 898 [1954]; Tiger v. Brown, 130 Okla. 83, 265 P. 124 (syllabus 1) [1928]; and Martin v. Gassert, 40 Okla. 608, 139 P. 1141, 1143 [1914].
See Womack v. City of Oklahoma City, supra note 20 at 1181; Timmons v. Royal Globe Ins., supra note 16 at 592; Eckel v. Adair, supra note 19 at 923 and discussion in text at supra notes 20 and 28. Admitted facts have a binding effect on the parties. See Nanonka v. Hoskins, Okla., 645 P.2d 507, 508 [1982] and City of Lawton v. Lewis, Okla., 566 P.2d 133, 134 [1977].
While the record on a prior appeal of the same action does not constitute a part of the record in the subsequent appeal, this court can take judicial cognizance of its former opinions to inform itself of the binding effect due its past pronouncements. Sneed v. Yarbrough, 164 Okla. 253, 23 P.2d 703, 705 [1933] and Oklahoma City Electric, Gas Power Co. v. Baumhoff, 21 Okla. 503, 96 P. 758, 760 [1908]. This rule is but a narrow exception to the general norm by which, on consideration of the appeal, an appellate court is strictly limited to the record before it. See Eckel v. Adair, supra note 19 at 923-924.
The settled law of the case operates to bar relitigation of only those issues that have been settled by an appellate opinion. Mobbs v. City of Lehigh, Okla., 655 P.2d 547, 549, n. 5 [1982]. The critical recitation in the Court of Appeals' opinion was not for the purpose of settling the issues raised in that appeal. The opinion did not deal with any phase of the Supplier's lien claim. See also Veiser v. Armstrong, supra note 16 at 799; Smith v. Owens, Okla., 397 P.2d 673, 678 [1965] and Board of Education v. Philadelphia Fire Mar. Ins. Co., 156 Okla. 7, 9 P.2d 737, 738 [1932].
Had the critical facts for determination of the limitations issue not been admitted, we would have had to apply here the teaching of Eckel v. Adair, supra note 19. Eckel would have called for application of the presumption that the trial court's judgment was correct because no error came to be demonstrated by the appellate record before us.
The trial court's postjudgment order here under review, which added the issue of limitation as an additional ground for rendering judgment on the defendants' demurrer, states that the time to bring Reeves' malicious prosecution suit began to run from the May 1 ruling. Agee and Supplier argue that Reeves' cause of action first arose when the Bank was no longer willing to accept a deed in lieu of foreclosure and that this occurred when the May 1, 1978 ruling became a money judgment lien on the property in contest.
As we view the applicable law, the question to be answered here is whether the one-year period to bring malicious prosecution suit commenced when the trial court first ruled on the claim for money or when it later decided the lien claim. Generally, the limitation period begins to run at the termination of the earlier action that is alleged to have been maliciously brought. Because the lien claim alone is asserted to be the malicious demand upon whose previous judicial rejection relief is now sought to be founded, and Reeves were indeed successful in defeating that claim, we hold the limitation period began to run on August 31, 1978 when the Supplier lost its quest to impress a lien. The malicious prosecution action, instituted less than a year later, was hence timely brought.
The terms of 12 O.S. 1981 § 95[ 12-95](4) provide in pertinent part:
"Civil actions other than for the recovery of real property can only be brought within the following periods, after the cause of action shall have accrued, and not afterwards:
* * * * * *
Fourth. Within one (1) year: An action for . . . malicious prosecution,. . . ." [Emphasis supplied.]
Coleman v. Strong, 105 Okla. 282, 232 P. 378, 379 [1925].
V
DEFENDANTS' ARGUMENT THAT THE CHAIN OF CAUSATION WAS BROKEN BY THE SUPPLIER'S PERFECTION OF A JUDGMENT LIEN COULD NOT BE CONSIDERED IN PASSING ON THEIR DEMURRERS
The trial judge also ruled as a matter of law that there was no causal connection between Reeves' lost opportunity to deed their property to the Bank in lieu of foreclosure and the Supplier's quest for a materialmen's lien that was denied on August 31, 1978. His order states that the May 1, 1978 ruling on the money claim became a judgment lien upon Reeves' premises and that it was this lien — rather than the materialmen's lien claim — which prevented Reeves from satisfying the mortgage debt by deeding the encumbered premises to the Bank. The impression of a judgment lien, the trial court ruled, broke any causal nexus between Reeves' failure to give cloud-free title to the Bank and the August 31, 1978 ruling for Reeves on the lien issue. The court concluded as a matter of law that no act by the defendant, occurring within one year of the filing of Reeves' malicious prosecution suit, could have caused the damage Reeves suffered from the Bank's deficiency judgment.
In reaching this conclusion the trial court apparently took judicial notice that the money claim ruling of May 1, 1978 did constitute a judgment and was perfected as a judgment lien against Reeves' real property. That fact, even if true, was clearly beyond the reference made in Reeves' petition to the extraneous matters of the earlier suit. The court was restricted by the four-corners' rule in passing on the defendants' demurrers and should have limited its search to the petition, any material that may have been physically attached to it and to the judgment roll of the case terminated before the same court, to which explicit reference was made in the petition. Because the judgment docket neither constitutes a part of the judgment roll in a suit nor was otherwise referred to in Reeves' petition, the status of the May 1, 1978 ruling as a judgment lien was not within the scope of material, extraneous to Reeves' petition, which the trial judge could consider in passing upon the demurrer. An appellate court cannot reach beyond the framework of those materials of which the trial court could properly take notice. The specific events alleged to have adversely affected Reeves' opportunity to deed their premises to the Bank, free of the Supplier's asserted lien, clearly tender an issue that was not resolvable on a demurrer. We hence hold the petition was impervious to demurrer on the defendants' legal theory that lack of proximate cause for Reeves' claim to damage from a lost opportunity to avoid foreclosure is apparent from the face of Reeves' petition, viewed in conjunction with that extraneous material to which reference was made in the body of their challenged petition.
There was no reference in Reeves' petition to the status of the money claim ruling as a judgment. Generally, a decision which settles one remedy or one theory when two are asserted may not rise to the dignity of a judgment within the meaning of 12 O.S. 1981 § 681[ 12-681]; it would constitute but a "midstream" order. See Eason Oil Co. v. Howard Engineering, Okla., 755 P.2d 669, 671 [1988]. We therefore express no opinion here whether the May 1, 1978 decision on the money claim phase of litigation, which reserved for future determination the lien claim issue, was truly a "judgment" within the meaning of § 681. The Court of Appeals in Reeves I, supra note 5, neither reached nor settled that question. Inasmuch as Reeves I did not discuss the appeal's dismissibility for prematurity, Reeves are not now bound to recognize that Reeves I was in fact prosecuted from a "judgment". Mullins v. Ward, Okla., 712 P.2d 55, 61 [1985]. The settled law of the case operates to bar relitigation of only those issues that were actually settled in Reeves I. Mobbs v. City of Lehigh, supra note 46 at 549. In short, nothing can be deemed to have been settled by Reeves I as the law for that case which was neither raised nor decided in the appeal.
Even if we were absolutely sure the May 1 ruling was effective as a money judgment, we could not hold as a matter of law that Reeves' reference in their petition to the earlier suit by the Supplier incorporated into that pleading all the extraneous material which would be necessary for the trial court to consider before concluding that the May 1 ruling stood in the status of a judgment lien. The trial court's judgment docket is not a constituent component of its judgment roll in a given case and hence could not be noticed for consideration in passing on a demurrer. See discussion infra note 53.
Physical exhibits attached to the pleading challenged by a demurrer may be considered in passing on the legal sufficiency of that pleading. See New York Casualty Co. v. Wallace Tiernan, 174 Okla. 278, 50 P.2d 176, 179 [1935].
See Morgan v. Whitehead supra note 17, 165 P.2d at 341; Corliss v. Davidson Case Lumber Co., supra note 17, 84 P.2d at 10; Schneider v. Decker, supra note 17, 291 P. at 81 and James v. Unknown Trustees, Etc., supra note 17, 220 P.2d at 834.
When the May 1, 1978 ruling was made, the judgment docket was kept by the court clerk and was in the form of an index in which the name of the judgment debtor was entered. See 12 O.S. 1981 § 25[ 12-25], the statute in effect when the judgment lien was purportedly filed. A judgment did not then become a lien unless its certified copy was filed in the court clerk's office, the docketing fee was paid (28 O.S.Supp. 1975 § 31[ 28-31]) and the critical data from the journal entry were entered upon the judgment docket. See 12 O.S. 1971 § 706[ 12-706], the version in effect on May 1, 1978; Smith v. Citizens Nat. Bank in Okmulgee, 204 Okla. 586, 232 P.2d 618, 621 [1951] and Farris v. Cannon, Okla., 649 P.2d 529, 531 [1982]. We cannot assume that even if the May 1, 1978 ruling constituted a judgment, the Supplier paid the fee for docketing that judgment and that its journal entry's abstract was in fact placed on the judgment docket so as to impress a lien of judgment.
See Eckel v. Adair, supra note 19.
See the text of 12 O.S. 1981 § 553[ 12-553], supra note 36 (now repealed); Great American Insurance Company v. Watts, supra note 36; James v. Unknown Trustees, Etc., supra note 17 and Bristow v. Carrigar, supra note 36, 132 P. at 1109. Reeves argues that they "discharged any money judgment lien which the appellees had perfected by filing a bond in the prior action on appeal" and that this bond "discharged any judgment lien the appellees might have had against the Reeves' real property." Reeves reply brief, page 32.
VI
ERROR, IF ANY, IN SUSTAINING A DEMURRER TO REEVES' SLANDER-OF-TITLE THEORY OF RECOVERY WAS NOT PROPERLY RAISED ON APPEAL
Reeves argue that they plead facts sufficient to support a claim not only for malicious prosecution but also for slander of title. They assert the trial court erred in sustaining demurrers to the petition because all the necessary elements of a slander-of-title action were present.
Implicit in the trial court's judgment on the defendants' demurrer to the petition is an adverse ruling on all theories upon which recovery could be sought. If facts are alleged which support any theory of recovery, a general demurrer must be overruled. Burford v. Territorial Land Co., 84 Okla. 102, 204 P. 274, 275 [1922].
Although Reeves may have correctly plead a slander-of-title claim, this issue was neither preserved by the general allegations in their new trial motion nor by specific legal argument at the hearing of that motion. Inasmuch as the trial court was not meaningfully advised that relief was also sought from the adverse ruling on that theory of recovery, Reeves' attempt to resurrect in their brief-in-chief the slander-of-title theory of recovery comes too late. In sum, Reeves' new trial motion does not assert, and the record fails to reveal, that error in rejecting the slander-of-title theory, now being pressed, meets the procedural criteria prescribed by 12 O.S. 1981 § 991[ 12-991](b). We hold that this error must go unaddressed for failure to preserve it either by motion or argument for new trial.
See supra note 7 and its accompanying text for the allegations of Reeves' motion for new trial.
See supra note 9 for the pertinent provisions of 12 O.S. 1981 § 991[ 12-991](b).
CONCLUSION
The malicious prosecution petition is impervious to attack by demurrer for failure to state a cause of action. The claim does not facially appear to be barred by limitation. Reeves failed to preserve for review any error in the trial court's denial of their slander-of-title theory of recovery.
The trial court's judgment on the defendants' demurrers is reversed; the cause is remanded for further proceedings not inconsistent with this pronouncement.
LAVENDER, SIMMS, DOOLIN and KAUGER, JJ., concur;
HARGRAVE, C.J., concurs in result;
SUMMERS, J., concurs in part and dissents in part;
HODGES, J., dissents.
I concur with the opinion of the majority insofar as it reverses the trial court's sustention of demurrers and pronounces judgment accordingly. I agree the claim does not appear to be barred by limitations and that Reeves failed to properly preserve for review, error in denying the claim of slander-of-title.