*1 COR- FEDERAL DEPOSIT INSURANCE
PORATION, Liquidating Agent of Newcastle, Newcastle, Bank of
Oklahoma, Appellant, MOSS, individual, Appellee.
Ted A.
No. 69253.
Supreme of Oklahoma. Court
Nov. 1991.
Rehearing Denied June *2 Gore,
Gregory Morgan, Reyn- Fred E. S. olds, Hargis, Ridings City, Oklahoma & appellant. Percival, Heath, Sushnik, Culp, F.
John Percival, City, & Oklahoma Percival appellee.
SUMMERS, Justice. Moss filed a motion for summary judg- motion, ment on his counterclaim. In his As a result of the downturn Okla- he claimed that capacity during economy homa’s the 1980’sthe Fed- corporate insurer him owes the total Deposit Corporation has eral Insurance be- amount of deposit. his certificates of He major litigant many courthouses. *3 come copies attached depos- certificates of in today’s In case the FDIC has functioned by response it held In FDIC. to the sum- capacities: one as receiver a failed two mary judgment motion, urged FDIC that note, money bank to which was owed on a the counterclaim of Moss should not be of a and another as insurer second failed by allowed because a debt owed one receiv- alleged money depositor. bank to owe to a (Dill State) ership could not be set off capacities in The FDIC these two against a debt due receivership another brought together here the because debtor (Newcastle). urged FDIC also pri- that the happens of the first failed to bank mary liquidat- action filed involved FDIC as depositor of the second. Our issue is ing agent Newcastle, rather than FDIC by framed FDIC’s claim that it must be corporate (or in capacity capacity its as capacities— separately treated in its dual Dill,)1 liquidating agent for and thus the that its suit on behalf of failed bank num- proper counterclaim not was under the subject one is to offset or ber Code, Pleading O.S.Supp.1984 Oklahoma against counterclaim failed bank number opportunity two. This is our first to exam- Finally, FDIC stated there was a factual ine the dual roles of the FDIC and how counterclaim, defense to the they procedural fit into Oklahoma’s civil Dill records of State Bank show Moss’ establishment. deposit three certificates of had been by president cashed of the bank with FACTS AND BACKGROUND this, support the consent Moss. As response FDIC-Newcastle attached its money Moss borrowed from the Bank of Moss, copy payable of a check made gave promissory and his note. Newcastle by president per endorsed the bank “as failed, May The Bank of Newcastle and on telephone conversation with Moss.” One 16, 1985, appointed by the the FDIC was deposit presented by other certificate of Banking liquidat- State Commissioner as its in Dill Moss was not found State Bank ing agent. The Moss note went into de- records. suit, attempting fault. FDIC filed this granted collect the an- The trial court Moss’ motion for debt owed bank. Moss swered, disputing summary judgment amount on his counterclaim. owed. He counterclaimed, so, FDIC, asserting doing In the court stated that in also that FDIC holding belonging capacities liquidating agent funds to him in ex- its as was both insurer, corporate granted cess of the total amount owed on his note. had been two produce These funds were the form of certifi- extensions of time to evidence to deposit by dispute him claim that the cates of owned and issued Moss’ certificates deposit owing. by the Dill State Bank. Dill Bank were FDIC had failed to State 7, 1985, July produce any evidence to refute this other had become insolvent on appointed liquidating had as than the endorsement mentioned above. been words, The court determination agent for that failed bank. other made a factual were con- Moss wants to offset claim that insofar as the certificates FDIC’s Newcastle, cerned, acting capacity in its him for his note to Bank of the FDIC was using says rightfully corporate responsible was money he his but as insurer and loss, being regardless Dill for the of how it occurred. which is withheld FDIC for Bank, dispute, responsible Finding facts in because FDIC is no material State summary judgment as deposits. granted for Dill Bank’s trial court State "corporate” "corporate opinion “liqui- capacity. first We use 1. In this we use "receiver" dating agent" interchangeably it in its second. for FDIC in its insurer” to describe pending in the trial The “interrelated claims” rule rests on to Moss’ claim. Still original principle filed court is the action that issues multi- ple the note to Bank of Newcastle. interrelated claims cannot be com- pletely until all of the decided issues Appeals, in an appeal, the Court On raised in each of the claims stand re- opinion, summarily affirmed unpublished (Id. Added) 671-72) (Emphasis solved. at Having the trial court. certiorari, granted earlier we now vacate case, present In our Moss’ counter Appeals, the Court of hold opinion capacity the FDIC procedurally the counterclaim Dill/corporate separate insurer is and dis summary winnable at the proper but not original tinct from the claim of the FDIC as stage, and to the trial remand Newcastle/Liquidating Agent. Similarly, court. *4 Life, at Oklahomans for summary judgment to one we held as THE APPEAL PREMATURE? IS judgment cause of action was a final question first address the of We There, appealed. petition could be stat grant summary the trial court’s whether ed two causes of action—one for tortious counterclaim is a judgment as to Moss’ of a lease and one for acts of con breach appeal may disposition final from which an spiracy. Because these two causes of ac Generally, summary adjudication lie. “separate tion were based on transactions single all of a cause of less than issues wrongs,” separate we held them to be beyond action is the reach review. See thereby and distinct from one another al 681; Farm. 12 O.S.1981 Mann State lowing appeal summary disposition of the (Okl. Ins., 669 P.2d Mut. Auto. Here, of one of the causes of action. however, rule, This does not include giving two events rise to the different there are two distinct the situation wherein times, claims occurred at different in dif separate claims which arise out of transac ferent towns and at different banks. The wrongs. Life, tions or Oklahomans relation between two claims (Okl. Fair, 634 P.2d v. State Inc. parties. appeal, urges On the FDIC 1981); see also Eason Oil Co. v. Howard not even common fact there is this between (Okl.1988).2 Engineering, 755 P.2d the two actions. Eason, question we addressed the Hence, under Eason Oklahomans adjudication of a whether counterclaim Life, we find that the order of the trial appealable disposition: may result in a final sustaining request Moss’ for sum- court “multiple The rule is different when appealable dispo- mary judgment is a final denominated claims” a case—whether granting summary judgment sition. In claims, cross-claims or counter- as ruled on all the trial court issues that address them- claims—tender issues by Moss’ claim. Because his counterclaim legal rights selves to derived from a sin- separate on a occur- was based and distinct In those gle occurrence or transaction. rence, origi- subject unrelated to the no will result latter instances suit, properly nal before this any single the resolution of claim. from Court. must decided All interrelated claims to have before will be deemed PROCEDURAL ISSUES Conversely, none rendered. when been - Appellant objections multiple claims FDIC raises several summary judg propriety granting to the same action is interrelated with anoth- First, er, argues that Moss’ coun trial court’s decision determin- ment. dismissed be single claim will terclaim should have been ing all the issues Fed judgment. cause it the boundaries of be deemed to constitute a fell outside appeal prior judg- 2. There statutory exceptions general to final are to the orders certified for rule; (1) interlocutory appealable by These are not at orders stat- ment. See 12 O.S.1981 993. (2) right, utory here. §§ see 12 O.S.1981 issue 13(b). urges eral Rule FDIC also that dis When appointed the FDIC is liquidating as required “remedy” missal was because the agent bank, of a failed state it is then of setoff If available to Moss. we upon called to act in capacities dual —as prop determine that the counterclaim was liquidating agent and corporate insurer. er, summary judg FDIC then asserts that Id.; v. Ashley, F.D.I.C. 585 F.2d improper ment was because factual dis (6th Cir.1978). division of authority “[T]he putes remain below. 3 between the F.D.I.C. as receiver and corporate F.D.I.C. as insurer is statu [sic] A. PERMISSIVE COUNTERCLAIMS torily mandated.... Section 1823 [12 AND THE “OPPOSING PARTY” RE- 1823], moreover, U.S.C. clearly contem QUIREMENT plates transactions between the F.D.I.C. as urges that Moss’ claim is not a receiver and corporate F.D.I.C. as insurer proper counterclaim because it was not Gunter, 862; F.2d at see also [sic].” brought against “opposing party.” Buttram, F.Supp. F.D.I.C. v. original brought action Moss was (N.D.Ala.1984). by FDIC as receiver for Bank of Newcas- problem One central arises in a P A& tle. Moss in turn filed a claim agreement. agreement Because the must corporate FDIC as insurer of Dill State great be carried out speed, pur- below, *5 Throughout proceedings Bank. the chasing bank often does not have sufficient Moss treated the action as if it were a time to review and evaluate the risks of the counterclaim. FDIC treated it as if it were Thus, failed bank. accomplish speedy a third-party against a cross-claim filed transition, agreement the P & A provides in corporate capacity. FDIC-Dill its insurer purchasing purchase the bank need appeal, urges On FDIC it is not a only high quality. those assets of Those proper counterclaim under the Oklahoma purchased which are not are returned to Pleading Code. Before we answer this liquidating agent. FDIC as FDIC as question, necessary it explain is the dual liquidating agent then capacities of sells those bad as- impact the FDIC and the capacities corporate these different sets to in its “opposing capacity. on the FDIC Id. party” FDIC, requirement permissive for a corporate capacity, coun- The in its then terclaim. attempts to collect on these returned as- sets. generally recognized by
It is federal operates caselaw that the FDIC in two ap While on its face the FDIC (1) capacities: liquidat distinct receiver pears entity, to be one federal statutes ing banks, agent of insolvent v. Jones capacity. mandate the in 12 distinction See F.D.I.C., 1400, (10th 748 F.2d 1402 Cir. corporate U.S.C. in its ca FDIC § 1984), (2) corporate deposits. insurer of pacity wrongs responsible not for the To avoid inconvenience to the customers of FDIC as receiver. F.D.I.C. v. Roldan significant prob the failed bank and the Fonseca, 1102, (1st Cir.1986). 795 F.2d 1109 liquidation, FDIC, lems of whenever capac The in its receiver FDIC does not act feasible, employs a Assump Purchase and assets,” ity assignment after the of “bad Agreement tion in which the FDIC ar corporate capacity. but rather in Bat its ranges for purchase another bank to F.D.I.C., F.Supp. 670 753 sakis v. reopen failed bank and the failed bank (W.D.Mich.1987). corpo After in its FDIC interruption banking without operations. acquires capacity rate assets from the Hutcheson, Gunter v. 674 F.2d 864 receiver, may (11th Cir.1982). FDIC-corporate P A FDIC as Agreement The & (1) recover on those “in its bring involves three entities: suit to assets FDIC Receiv (2) Boulder, liquidating agent, right.” er or purchasing own F.D.I.C. v. Bank of (3) corporate (10th Cir.1990). bank FDIC as 1470 insurer. 911 F.2d petition 3. We do not address the remainder of the issues in the amended for certiorari. See Ford Ford, they (Okl.1988). raised FDIC because were not v. 952 618 capacities promissory
The distinct
become rel
states that Moss’
note was sold
evant when Moss’ counterclaim is con
liquidating agent
FDIC as
for Newcas-
parame
fall
sidered.
order to
within
tle to
in
corporate capacity.
FDIC
its
permissive
ters of a
counterclaim under
corporate
FDIC in its
capacity
insurer
13(b)
O.S.Supp.
both Federal Rule
and 12
the holder
the promissory
therefore
2013(B),
claim
must involve an
note.
See,
“opposing party.”4
e.g., Corning, 696
against
Moss’ counterclaim is
in its
F.Supp.
party may bring
at 1247. A
corporate
capacity.
insurer
Because FDIC
permissive
“against
oppos
counterclaim
appeal
on
appears
now clarifies
that it
in
ing party
arising
out of the transaction
corporate
capaci-
this lawsuit
its
insurer
subject
or occurrence that is the
matter of
ty,
agree
we
that Moss’
prop-
counterclaim
opposing party’s
claim.”
See
erly
13(b)
Federal
falls within
Rule
and 12
O.S.Supp.1984
2013(B); Federal Rule
2013(B).
O.S.Supp.1984
Moss’ claim
13(b).
“opposing party” requirement
completely separate
arises out of a
transac-
respect
counterclaim means that
tion,
party
but involves the same
—FDIC
plaintiff
brought
when a
has
suit in one
corporate
capacity.
insurer
capacity,
may
the defendant
not counter
on
FDIC asserts
that the counter
capacity.
him in another
permitted
claim should not be
as it involves
Banco Nacional De Cuba v. Chase Man
Dill
failure
State Bank whereas
Bank,
(2nd
hatten
F.2d
Cir.
original
action involved the Newcastle
A counterclaim
Relying
Bank.
Berry,
F.D.I. C. v.
capacity
original
other than as the
claim
F.Supp.
(E.D.Tenn.1987),
FDIC as
ant cannot be sustained. F.D.I.
v.C. Corn
arising
serts that claims
out of one receiv
Ass’n,
ing Savings
F.Supp.
& Ln.
ership
imputed
cannot be
to another receiv
(E.D.Ark.1988).
Dove
See also
However,
ership.
because we have deter
F.D.I.C.,
Ga.App.
remanded for further on the due, obligation past disputed the counterclaim. amount, pleaded setoff based on ma- deposit allegedly
tured certificates of held *8 HODGES, Y.C.J., LAVENDER, and by FDIC. He also counterclaimed for an DOOLIN, accounting HARGRAVE and ALMA payment of funds due him WILSON, JJ., concur. excess of his total indebtedness.3 Moss " * * * currently 1. The claims are interrelated within the teach- holds funds ... ings Engineering, of Eason Oil Co. Howard property are the of Said funds [Moss].... they note when arise out of the same fully discharge ... are sufficient to the indebt- infra occurrence or transaction or when one claim may [Moss], by hereby, edness owed [Moss].... be set off another. See Part III of elects, formally right, as is his to have said opinion. this by applied funds to the indebtedness owed him to ... full satisfaction [the bank] 2. The terms of 12 O.S.1981 681 are: thereof." judgment "A rights is the final determination of the allegation by pro Holden, Okl., This "states a tanto defense parties in an action." way of set-off." Brown v. plead In his amended answer Moss as an 3. (1966). affirmative defense: “partial summary judg- appears later a record to that character- refute plea, ment” the trial which court sus- ization. tained. This is that deci- from expressly Moss had asked the trial court sion. briefs, According appellate to the ruling single for a a but issue —whether pending FDIC’s claim remained when it any there is dispute factual over the mere brought petition-in-error. deposits “existence of and total liabilities” $90,136.76.6 due him in the amount of Spe
II.
cifically excluded from consideration below
FDIC HAS TENDERED NO APPEAL-
joined
were the other
issues
Moss’ claim
ABLE DECISION FOR THIS
journal
entry
for affirmative relief.7
COURT’S REVIEW
signed
and a
courtroom minute explicitly
sustain no more than
Moss’ “Motion
definition,
By
“partial
summary judg-
for
”
Summary Judgment.
Partial
ment,”
Although
precisely,
partial
or more
sum-
journal
entry
mary adjudication, disposes of less than all
language
bears added
indicating “judgment”
issues in a claim
Deci-
had been
rendered
of
for relief.4
sions under
appeal-
this rubric are not
and describing
“prevailing
Moss as
par
able,
ty,”
I
adjudica
nonetheless
they
unless
fall into a
of inter-
consider
class
There
locutory
appealable
tion as no more than
by right
interlocutory.9
orders
or are
can be
judgment
no
when the court dis
appellate
certified for
immediate
review.5
Although
poses
prius
portion
the court
treats the nisi
but a
the claim and
of
of
order in
immediately
this case as an
exe-
leaves unresolved
joined by
issues
FDIC,
judgment
cutable
pleading.10
Summary Judgment
Moss denominated his demand as a "counter-
is whether there is
following language:
claim”
dispute
material
as to the existence
of fact
of
" * * *
currently
holds funds in an
deposits and total liabilities of the Dill State
amount in excess of the total indebtedness of
Bank for which Ted A. Moss is entitled to be
seized_
deposits
190,136.76."
...
in the form of
(Em-
[Moss]
paid in the total amount of
accounting
added.)
entitled
for an
phasis
[Moss]
[sic]
funds,
payment
surplus
said
of the net
supra
7. See
6.
note
said funds....”
Television, Inc., Okl.,
4. Reams v.
problematic
following
Tulsa Cable
I consider as
lan-
(1979).
guage quoted
journal
P.2d
entry:
from the
"Summary adjudication”
highlight
NOW, THEREFORE,
serves to
"IT IS
THE JUDGMENT
process
essence of the decisional
when some
judg-
AND ORDER OF THE COURTthat the Motion
summarily
Defendant,
issues are
determined but no
Summary Judgment
Partial
for
Ted A.
terminology appears
Moss,
ment is rendered. This
hereby
be and
is sustained and
adopted by
have been
the Committee on Rules
that he be awarded
in the total
$90,136.76.
of Practice and Procedure of the U.S. Judicial
amount
The award
costs
proposal
...,
Conference in its most recent
to revise
attorney[]s
prevail-
[Moss]
fees
summary
Rule
F.R.Civ.P. “FRCP 56 on
ing party,
pending
applica-
are deferred
further
completely
proce-
rewritten. The
(Emphasis
tion
add-
therefore Defendant."
summary adjudication,
ed.)
dure is described as
summary judgment disposing
include both
of an
Wilson,
9. See Hutchison v.
136 Okl.
276 P.
defense,
summary
entire claim or
and a
deter-
(1929),
recognized
where the court
mination that does not resolve an entire claim.”
"though
language
court took
[trial]
9, 1991).
Advisory
(Sept.
Federal Practice
2at
judgment,”
clearly
the record
form of
final
Television, Inc., supra
5. Reams v. Tulsa Cable
judicial
indicated that the
locutory
act was but an inter-
note 4 at 374.
added.)
(Emphasis
order.
support
6. Moss'
his “Motion
2;
Partial
supra
10. 12 O.S.1981
note
Reams v.
brief
*9
Summary Judgment" prominently states:
Television, Inc.,
374;
supra
Tulsa Cable
note 4 at
" * * *
Okl,
Life,
claims
Ted A.
[T]he
of
Moss for an
Oklahomans For
Inc. v. State Fair of
Okl.,
704,
accounting
allegations
(1981); Hurley Hurley,
and his
that the Bank
634 P.2d
706
v.
194,
147,
(1942) (the
properly
payments
of Newcastle did not
credit
191 Okl.
127 P.2d
148
3);
syllabus
Riley,
made
his Note at Bank of Newcastle
court's
Foreman v.
88 Okl.
¶
75,
(the
(1923)
¶4);
syllabus
are not at issue in this Motion
Partial
211 P.
court’s
495
for
Shriver,
108,
Judgment.
(1921)
Summary
The sole issue to be
Wells v.
81 Okl.
When
ill.
order, this court will examine the four
uous
IF THE
EVEN
DECISION AGAINST
interpret
it to
corners of
record before
HAD
FDIC
DETERMINED MOSS’
decision.11 The order
judge’s
trial
COUNTERCLAIM,
ENTIRE
THE AD-
giving
must not be construed as
more
JUDICATION WOULD STILL LACK
than that which
intended
THE ATTRIBUTES OF APPEALA-
relief
demanded.12
light
BILITY
of the record before
us,
judge
the trial
could not have reason-
Assuming, arguendo,
the trial
ably
give
judgment,
Moss a
nor
dispose
intended to
intended to
court
and did
of
quest
Moss’ entire
in advance
expect
summary
did the latter
more than a
for relief
of
him,
adjudicating
FDIC’s
disposition,
judgment,
short of a
of
far
appeal
this
should
be dis
nonetheless
opin-
in the case. The
court’s
some issues
appealable
missed
want
deci
gives
ion hence
trial court’s decision
sion. The issues
joined by
Moss’ demand
sweeping
sought
than
a more
effect
directly
related to those
for setoff are
by
by
Moss and warranted
the record
by
yet
raised
FDIC’s
unresolved claim.14
made below.
“All interrelated claims must be decided
judgment will be deemed to have
This
should be dismissed.
The
before
been rendered.”15
A
decision on Moss’
order,
prius
today
over
the court
nisi
which
clearly
setoff claim alone
cannot constitute
reviewing cognizance, presents
takes
but a
judgment.16
nonappealable,
interlocutory summary
ad-
very nature of
The
setoff —whether
as
judication.13
defense,
serted as a
counterclaim or cross-
relationship
claim 17—denotes a direct
claim.18 It serves to reduce
opposing
demand,
Bryan
Hasp. Authority,
Ring
v.
Memorial
Board
11.
Education
Town
Frazier
281,
Okl.,
(1989).
State,
437,
325,
ling
775 P.2d
285-286
v.
172 Okl.
46 P.2d
327
(1935)).
secured
Counterclaims
the defendant
Bryan
Hosp. Authority,
12.
v.
Memorial
Frazier
relief,”
108,
Sniggs,
"full
Mathews v.
75 Okl.
182
supra note 11 at 286.
703,
(1919),
P.
had to
arise out of the
upon
plain
transaction or occurrence
which the
ample legal
prema-
FDIC has
means to bar
13.
based,
Holland, Okl.,
tiffs claim
Perrault v.
"victory." If
ture execution on Moss'
Moss were
240,
Setoff,
(1961).
360 P.2d
which need
enforcing
adjudication
attempt
in ad-
plain
not have been related to the basis of the
case,
vance of
the trial court’s
claim,
defense,
could
as a
tiffs
be asserted
coun
protect
power could be invoked to
upon any
based
terclaim or cross-claim
contract
quashing
general
execution or
order that
Holden,
opposing party,
supra
with the
Brown v.
ruling
yet
would define the
in his favor as not
party demanding
note 3 at 533. In one case the
failed,
pro-
could
executable.
If this
seek
any
setoff was not entitled to a
prius
all nisi
enforcement
hibition
arrest
sought
liability
imposed by
excess over the
to be
process.
Okl.,
Mitchell,
the initial claim. See White v.
950,
(1955).
P.2d
Engineering,
Co.
14. See Eason Oil
v. Howard
669,
Okl.,
(1988).
755 P.2d
18.Repealed sections of Oklahoma’s Code of Civ-
Engineering, supra
Co. v.
15. Eason Oil
Howard
espoused
interrelationship
il Procedure
note 14 at 672.
See,
setoff and the initial claim.
exists between
273,
1984),
e.g.,
(repealed
in
§
O.S.1981
infra
681,
2;
supra
§
16. 12 O.S.1981
note
Eason Oil
1965)
(repealed in
§
12 O.S.1961
infra
672;
Engineering, supra
Co. v. Howard
note 14 at
(repealed
§
12 O.S.1981
infra
Lathrop,
v.
204 Okl.
233 P.2d
Dennis
provisions
These
were eliminated
our
Seminole,
(1951);
City
Okl.
Fowler v.
Code,
Pleading
longer recog-
present
which no
Wilson,
(1945);
623 liability sought imposed.19 to be the O.S.Supp.1990 1006(A)21 terms of 12 had § judgment hence can be no until There been in effect when the decision in this adjudic both the claim and the are setoff (Effective 1, 1991, case was made. June ated.20 This would also be true if the liability sought by part single be controversy requir- the “becomes ... defense of enforced of party, necessary ing only Baldwin, the and it shall be judgment;” other ... one Baldwin v. 400, 792, (Ohio that such setoff shall exist as between all 37 Ohio L.Abs. 47 N.E.2d 793 added.) (Emphasis parties_” App.1940), which holds that when a cross-de- provided: 12 § The terms of O.S.1961 274 “only judgment mand is proper;” asserted one is only pleaded "A can be in an action Co., 84, Kramer v. K.O. Lee & Son 64 N.D. setoff contract, and must be a cause 373, (1933), holding N.W. founded of that when a coun- arising by upon action contract or ascertained interposed judgment fully terclaim is “the should added.) (Emphasis the decision of a court.” parties’ rights; Pennsylvania determine" the Co. provided: The terms of 12 § O.S.1981 Lives, Lynch, For Insurances On Etc. v. Pa. any recovery money "In action in which a of 23, 157, (1932), 162 A. where the court sought may any is cause defendant setoff of judg- observed that a defendant should have money recovery action the which he has for of ment on his counterclaim when it exceeds the at the the answer is time Where neces- filed. plaintiffs established demand. These authori- sary delay prejudice, to avoid or the court harmony ties are in with our own statutes and may try separately.” (Emphasis the setoff cases. added.) 699, infra, provi- See also 12 O.S.1981 § whose pertinent O.S.Supp.1988 § terms of 12 sions, though repealed with the advent of the provide: Pleading clearly Code in mandated but a single judgment party in an COUNTERCLAIMS; action in which a "B. PERMISSIVE CON- TINGENT COUNTERCLAIMS. for setoff. provided: The terms of 12 pleading may § O.S.1981 "1. A state as a counterclaim setoff, any opposing party "If a an counterclaim or established at the not aris- trial, ing plaintiffs out the transaction or occurrence that is exceed the claim so estab- of subject lished, opposing party’s judgment the matter the must be of for defendant excess; claim. given appear or it that the for if any relief, is entitled to defendant affirmative "C. COUNTERCLAIMEXCEEDING OPPOS- judgment given (Emphasis be shall therefor." CLAIMS; ING STATUTES OF LIMITATION. added.) may may “A counterclaim or not diminish or language entirely This is consistent with the defi- sought recovery by opposing supra defeat nition in 12 O.S.1981 of party. may exceeding It claim relief note whose terms have been in since effect sought amount or in kind different from statehood. pleading opposing party. Where opposing a counterclaim and the claim of the 1006(A), O.S.Supp.1990 21.The terms of 12 party arise out of the same transaction or 1006, provide: now known as § occurrence, the counterclaim shall not be "When more than one claim for relief is barred a statute of limitation notwithstand- action, claim, presented in an whether as a ing petition that it was barred at the time the counterclaim, cross-claim, third-party or filed, and the counterclaimant shall not claim, involved, multiple parties or when are recovering precluded an from affirmative may preparation filing the court direct the and judgment. Where a counterclaim and the one or more but final opposing party: claim of the only parties than all the claims or fewer 1. Do not arise out of the same transaction upon express that there is no determination occurrence; just express delay upon an reason and judgments; money 2. Both claims are for judgment. filing In the direction Both claims had accrued before either direction, and absence of such determination limitation; was barred a statute of decision, any order or however other 4. The counterclaim is barred a statute form designated, adjudicates than all asserted, which of limitation at the time that it is fewer answer, the action the claims shall not terminate ... whether in an answer or an amended any parties, as to claims or may the counterclaim be asserted to re- subject decision is opposing party’s order or other duce the claim. form of " * * *" judgment adju- added.) (Emphasis revision at time before rights dicating and the all the claims supra 19. See the cases cited note 17. parties with the liabilities all filed added.) (Emphasis Okl.Sess.L. court clerk.” Hunter, 18 at 1768. Kluge ch. & Mo. 20. See Brandtfen 56(b), (1940), patterned after Rule App. 1006 is 145 S.W.2d where Section pleaded the court held that when a it F.R.Civ.P. setoff *11 (A) subsection is now 1006. Okl.Sess.L. § LOVELACE, 1768.) ch. 251 18 at Section 1006 Marian E. § Plaintiff-Appellant, upon multiple specifically orders
deals entry claims. authorize the It does not v. portions some judgment when KEOHANE, Father Daniel C. Individual- determined,22 an entire claim are nor ly, Agent Employee and as multiple judgments does it sanction Roman Catholic Archdiocese of Okla- several are an action where claims City homa and the Di- Roman Catholic pressed. express In the absence of “an Tulsa; ocese of the Roman Catholic just determination that there is no reason City, Archdiocese of Oklahoma and the delay upon express direction for Tulsa, Roman Catholic Diocese of De- filing judgment,” adjudication fendants-Appellees. “one or more but than all fewer No. 74848. an action will not constitute a claims”in Supreme Court of Oklahoma. judgment.23 preserves 1006 thus Section 11, 1992. Feb. general in 12 rule—embodied O.S.1981 Rehearing April 68124—that a must include the Dismissed 1992. disposition of all the claims in an prejudgment
action but allows orders that
dispose of an entire claim to severed be trial court review advance of
judgment. procedural In this manner our
regime protects against the unfairness that if
would arise that is immedi
ately given party executable were to initially a setoff demand while the claim
pressed against party undec remained
ided.25 appeal.
I would dismiss this Convention, States, Fleming Baptist 22. See Tolson v. United 732 F.2d 25.See General (D.C.Cir.1984). J., concurring supra (Opala, note 16 at 1107 result). 1006, supra note 23. See text of supra of 12 24. For the terms O.S.1981 681 see note 2.