Summary
In Depuy v. Hoeme, 775 P.2d 1339 (Okla. 1989), the Oklahoma Supreme Court concluded that a ruling pronounced by a judge at a hearing, transcribed by a court reporter, and memorialized in a "bench docket entry" could not be afforded preclusive effect because the ruling was not set forth in an order signed by the judge.
Summary of this case from Bell v. Dillard Department Stores, Inc.Opinion
No. 67423.
March 15, 1989. Rehearing Denied July 19, 1989.
On appeal from the District Court, Texas County; James F. Lane, Successor Trial Judge.
In a postdecree proceeding before the successor trial judge to secure compliance with a mandatory injunction, the defendant (a) claimed that the plaintiffs continued to be in noncompliance with the terms of the permanent injunction and (b) sought additional enforcement relief. When the plaintiffs had previously been found in noncompliance with the same mandatory injunction, the deceased predecessor judge had announced in open court certain postdecree, midappeal enforcement directives, which were neither memorialized nor otherwise reduced to a record entry signed by that judge. The successor judge held that the earlier, open-court directives had res judicata effect. He denied the relief sought by the defendant except for a portion of compliance work which, in his view, had previously been ordered to be done at the option of the defendant.
THE TRIAL COURT'S POSTDECREE ORDER IS REVERSED AND THE CAUSE REMANDED WITH DIRECTIONS.
Andrew T. Dalton, Jr., Tulsa, and Larry L. Field, Guymon, for defendant-appellant.
John G. Spires, Cherri Farrar, Grove, Grove Associates, Oklahoma City, for plaintiffs-appellees.
The issue tendered for our decision is whether the deceased predecessor trial judge's 1977 oral postdecree, midappeal directives — specifying the work required to satisfy the command of a previously issued mandatory injunction — had res judicata effect in the instant enforcement proceeding before the successor judge. Disposition of this question requires that we initially focus on the previous midappeal enforcement directives. Because no journal entry was ever prepared of this 1977 judicial ruling whose unmemorialized terms vitally affect the inquiry into issues presently on appeal, the trial court's postdecree decision now before us must be reversed and the cause remanded with directions to settle the journal entry of this critical disposition in an adversary hearing to be conducted on due notice to the parties. After the memorialization process has been completed, the trial court shall then decide if the predecessor judge's ruling constituted a final and appealable postdecree order; if so, the memorialized disposition shall be given res judicata effect insofar as the ruling defined the details of the work that must be performed to comply with the mandatory injunction decree of November 29, 1976.
THE ANATOMY OF LITIGATION
This appeal arises out of a settled dispute that culminated in this court's pronouncement in Depuy v. Hoeme. There, we affirmed the trial court's 1976 decree denying the Depuys' quest for injunctive relief and granting Hoeme a mandatory injunction.
Okla., 611 P.2d 228 [1980] ( Depuy I). Depuy I decided the consolidated appeal in Depuy v. Hoeme, No. 50,472 and Depuy v. Oklahoma Water Resources Board, No. 51,960.
All references to the trial court's decision in Depuy I are to its ruling in Depuy v. Hoeme, No. 50,472.
On November 29, 1976 the trial court ordered the Depuys to put culverts in their elevated road so that water could flow into the lake bed without obstruction. It is from the November 29, 1976 injunction decree that the Depuys took an appeal which resulted in this court's Depuy I pronouncement.
The case dealt with the parties' competing claims to the use of water from Wild Horse Lake, a natural playa lake located partly on both of their adjoining premises. During the course of the controversy the Depuys constructed a road dike designed to prevent drainage water from reaching the portion of the lake which was located on Hoeme's land. The trial court's decree of mandatory injunction required that the Depuys remove the offending "road dike from the bed of the lake, or . . . construct culverts under it to enable passage of the water under the road."
Depuy I, supra note 1 at 230.
During the pendency of the earlier appeal from the 1976 decree, but before this court's mandate in Depuy I, the predecessor judge held a contempt hearing to determine whether the Depuys had complied with the then-unstayed injunction's command. Hoeme's counsel requested at that hearing that the judge view the premises because that would be "the quickest way, the most illuminating way . . . to resolve this issue once and for all." Though the court found the injunction decree had not been fully satisfied, it reserved a ruling with respect to any punishment and admonished the Depuys that they were "not relieved of the penalty of contempt until . . . [they accomplished the indicated directives]." It is then that the judge announced certain directives concerning work to be done for complete compliance with the injunction decree. According to the transcript, the predecessor judge had directed that certain dirt be removed and the pipe installed to permit free water flow. While during this hearing the judge indicated his intention to have these directives memorialized, no journal entry appears in the record and, so far as we can ascertain, none was ever prepared. According to a later "bench docket" entry, the predecessor judge's personal inspection of the premises revealed that the required dirt removal had been accomplished, but the pipe had not been installed "due to a conversation with counsel." No ruling was ever issued imposing any sanction for the pressed contempt charge.
In the 1977 hearing, Mr. Hoeme's counsel advised the predecessor judge that "[o]n November 29 of 1976 this court entered an order granting certain injunctive relief to Mr. Hoeme, and directing that the [Depuys] . . . perform certain acts. . . . It is the position of the defendant that that order has not been complied with." Transcript of Proceedings, Contempt Hearing held May 16, 1977 [hereinafter "Transcript"], at pp. 12-13.
Transcript at p. 13.
Transcript at p. 118.
Transcript at p. 107.
The court ordered the Depuys to bulldoze (a) a breakthrough one-half mile east of the "four corners"; to build (b) an additional breakover at the four corners area; and to (c) gouge out a spillway. Transcript at pp. 107-112.
Transcript at pp. 107-112.
Transcript at pp. 127-128.
According to the terms of the successor judge's order here under review, the directives announced by his predecessor were never memorialized.
This information was entered upon the judge's "bench docket" under the date of May 23, 1977. While a bench docket is not part of the appellate record ( Chamberlin v. Chamberlin, Okla., 720 P.2d 721, 723 [1986]), any fact either stipulated or admitted in the brief may be considered as supplementing a deficient record on appeal. See Womack v. City of Oklahoma City, Okla., 726 P.2d 1178, 1181 [1986]; Chamberlin v. Chamberlin, supra at 724, n. 6; Timmons v. Royal Globe Ins. Co., Okla., 713 P.2d 589, 592 [1986]; Eckel v. Adair, Okla., 698 P.2d 921, 923 [1985]. In their briefs to us both parties used this extra-record information doubtless gleaned by them from the trial judge's bench docket.
This court affirmed the November 29, 1976 mandatory injunction by its February 19, 1980 pronouncement in Depuy I. On May 9, 1985 Hoeme filed below his "motion for execution." He invoked the successor judge's assistance for postappeal enforcement of the November 1976 mandatory injunction and of this court's mandate in Depuy I. At the enforcement hearing Hoeme asserted that because the Depuys were still blocking the water flow he needed a "writ of assistance", to be carried out by the sheriff, for the removal of the entire impeding road dike. In defense the Depuys urged that except for the pipe's placement they had fully complied with the directives the predecessor judge had given in open court during the 1977 hearing. The successor judge thereafter determined that the Hoeme-raised issue — with respect to the steps the Depuys must take to comply fully with the mandatory injunction — had been completely litigated before the predecessor judge and stood resolved by the latter's May 16, 1977 ruling. Applying res judicata, the successor judge concluded that the matter before him could not be relitigated. Hoeme brings this appeal, urging error in the trial court's application of the preclusive bar.
According to the May 23, 1977 "bench docket" entry, Hoeme's counsel had requested that the pipe not be installed. Unclear as to the status of the placement-of-the-pipe requirement, the successor judge directed Hoeme to file an election that would advise the court whether he wanted the pipe put in place. He also ordered that if Hoeme elected to have the work done, the Depuys should complete it within a specified time period. Failing completion, the court indicated, a "writ of assistance" would issue in Hoeme's favor.
The doctrine of res judicata is presently called "claim preclusion." Veiser v. Armstrong, Okla., 688 P.2d 796, 800, n. 8 [1984]. See also, Restatement (Second) of Judgments § 74 [1982].
I
THE NATURE OF THE RELIEF SOUGHT BY HOEME
Although characterized as one for contempt, the 1977 hearing focused primarily on the conditions necessary for compliance with the November 1976 mandatory injunction. The present postdecree proceeding, brought below before the successor judge, was triggered by Hoeme's "motion for execution." The parties later agreed Hoeme sought relief under the provisions of 12 O.S. 1981 § 902[ 12-902]. His object was to seek enforcement both of the injunction decree and of this court's mandate in Depuy I by a ruling that further performance — the removal of the entire road dike — was necessary for the Depuys to comply with the injunctive relief's command and with this court's mandate in Depuy I.
The terms of 12 O.S. 1981 § 902[ 12-902] provide:
"When the judgment is not for the recovery of money or real property, the same may be enforced by attachment, by the court rendering judgment, upon motion made, or by a rule of the court upon the defendant; but in either case, notice of the motion or a service of a copy of the rule shall be made on the defendant, a reasonable time before the order of attachment is made."
The terms of 12 O.S. 1981 § 902[ 12-902], supra note 16, clearly authorize resort to civil arrest preliminary to a contempt proceeding for noncompliance with a mandatory injunction. As a general rule, a mandatory injunction is enforced, or its violation punished, by contempt. See in this connection, Clark v. Most Worshipful St. John's Grand Lodge, Etc, 198 Okla. 621, 181 P.2d 229, 231 [1947]; see also, Forsythe v. Washtenaw Circuit Judge, 180 Mich. 633, 147 N.W. 549, 550 [1914].
Hoeme now seeks reversal of the trial court's decision insofar as it gives res judicata effect to the 1977 oral directives and precludes judicial reexamination of the nature of work required of the Depuys to comply with the injunction decree's command. The decision presently tendered for our review necessarily requires that our attention be focused both on the terms and on the legal effect of the predecessor judge's 1977 ruling. While the successor judge's decision stands memorialized by a formal journal entry, that of his predecessor is not. Inasmuch as no written memorial of the predecessor judge's ruling was ever entered of record, we must first decide whether the unmemorialized directives of 1977 are entitled to res judicata effect.
II
A WRITTEN MEMORIAL OF THE TRIAL COURT'S 1977 RULING IS AN INDISPENSABLE PREREQUISITE FOR THE REVIEWING COURT'S APPRAISAL OF ITS PRECLUSIVE EFFECT
A superior court of common law speaks only through its record. The appealing party bears the burden of procuring a record sufficient to support the corrective relief which is sought. That record must always include a written memorial of the judicial action which either triggered the appealable event or that which is essential to its appellate review.
Chamberlin v. Chamberlin, supra note 13 at 724; King v. Sherrill, Okla., 496 P.2d 803, 804 [1972].
Chamberlin v. Chamberlin, supra note 13 at 724. See also, Huff v. Huff, Okla., 687 P.2d 130, 131 [1984]; Willitt v. ASG Industries, Inc., Okla., 572 P.2d 1296, 1297 [1978]. The recorded memorial of the judicial action tendered for corrective relief is the sine qua non of appellate review. See 12 O.S. 1981 § 32.2[ 12-32.2]; Johnson v. Johnson, infra note 27 at 542; Cumby v. State ex rel. Vinzant, Okla., 468 P.2d 490, 493 [1970].
The absence of a written memorial is not essential to the validity or finality of a judgment or order, nor does the failure promptly to file the entry render a ruling ineffective or unenforceable. A judgment or order is rendered and begins its legal life as soon as it is pronounced from the bench and before it is ever reduced to writing for entry of record by the clerk. While any judgment or order is operative from the moment it is announced, the only legitimate evidence of the adjudication's legal existence, of its terms and of its legal effect is the record entry bearing the judge's signature.
Miller v. Miller, Okla., 664 P.2d 1032, 1034 [1983]; McCullough v. Safeway Stores, Inc., Okla., 626 P.2d 1332, 1335, n. 8 [1981]; Ashinger v. White, infra note 21.
Rule 1.11, Rules on Perfecting a Civil Appeal, 12 O.S. 1981, Ch. 15, App. 2; see also Barrett v. Barrett, Okla., 249 P.2d 88, 90-91 [1952]; Ashinger v. White, 106 Okla. 19, 232 P. 850 [1925] (syllabus 1).
Miller v. Miller, supra note 20; Johnson v. Johnson, infra note 27 at 542, n. 4; Cumby v. State ex rel. Vinzant, supra note 19.
The doctrine of res judicata, which applies with like force to judgments or decrees of the court as it does to its postjudgment and postdecree rulings that stand in law as "final," teaches that when the appeal time expires a decision under this rubric becomes impervious to reconsideration and hence binding and conclusive upon the parties. In short, terminal judicial rulings — whether they be judgments or post-judgment dispositions — reach a final determination stage, settle the parties' rights and by force of law are placed beyond the trial court's power to alter, except only upon resort to §§ 1031 and 1031.1 remedies which prescribe vacation or modification procedures. The attribute borne by a "final order" stands in marked contrast to a prejudgment order. The latter always remains subject to the trial judge's change before judgment is pronounced in the case.
Under the doctrine of res judicata (claim preclusion), a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414, 66 L.Ed.2d 308, 311 [1980]; Veiser v. Armstrong, supra note 15 at 800. When in an action an issue of law or fact is finally decided after a full and fair inquiry by a court of competent jurisdiction, the same question cannot thereafter be revisited and decided differently in another subsequent and different suit or proceeding between the same parties. Runyan v. City of Henryetta, Okla., 321 P.2d 689, 693 [1958]; Cherry v. Godard, 179 Okla. 158, 64 P.2d 315, 321 [1937]. Finality, then, is the prerequisite for the application of the doctrine of claim preclusion. While the "finality" requirement has troubled courts and oft times its application may vary with the circumstances, all courts agree that, after the expiration of appeal time when no appeal has been taken, a judgment acquires the degree of finality requisite for the application of res judicata doctrine. See Allen v. McCurry, supra, 449 U.S. at 94, 101 S.Ct. at 414; Restatement (Second) of Judgments, supra note 15 at § 74.
12 O.S. 1981 § 953[ 12-953] defines final postjudgment orders that are appealable in the following terms:
"An order affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment, and an order affecting a substantial right, made in a special proceeding or upon a summary application in an action after judgment, is a final order, which may be vacated, modified or reversed [by an appellate court], as provided in this article." [Emphasis added.] See Barnett v. Bohannon, 27 Okla. 368, 112 P. 987, 988 [1910]; Southwestern Natural Gas Co. v. Vernor, 178 Okla. 344, 62 P.2d 1262, 1264-1265 [1936].
For the preclusive effect of postjudgment orders, see Salyer v. National Trailer Convoy, Inc., Okla., 727 P.2d 1361, 1363 [1986]; White v. White, Okla., 607 P.2d 700, 702 [1980]; Bruce v. Miller, Okla., 360 P.2d 508, 511-512 [1961]; Tippins v. Turben, 162 Okla. 136, 19 P.2d 605, 608 [1933]; Brett v. Fielder, 136 Okla. 222, 277 P. 216, 217 [1929].
See 12 O.S. 1981 §§ 1031[ 12-1031] and 1031.1 [ 12-1031.1] for the terms of statutes that afford postjudgment vacation and modification relief.
See also infra note 35.
The trial judge retains full control over all temporary orders in the case and over the manner of their enforcement. None is entitled to res judicata effect. Interlocutory orders made in the course of an action or proceeding are not binding on the trial court when final adjudication of the controversy is crafted. Johnson v. Johnson, Okla., 674 P.2d 539, 543 [1983] (predecree orders in a divorce case are always subject to the judge's power to extinguish or modify); Reynolds v. Reynolds, 192 Okla. 564, 137 P.2d 914, 916 [1943]; Lee v. Epperson, 168 Okla. 220, 32 P.2d 309, 312 [1934]; Ft. Dearborn Trust Savings Bank v. Skelly Oil Co., 146 Okla. 179, 293 P. 557, 562 [1930]; Wells v. Shriver, 81 Okla. 108, 197 P. 460, 472 [1921]; Kuchler v. Weaver, 23 Okla. 420, 100 P. 915, 918 [1909].
Before a reviewing court can determine the res judicata effect of any prior adjudication by a trial court, the ruling to be gauged for its preclusive effect must stand memorialized. No preclusive effect may be accorded to a judge's ruling unless the decision's existence and its terms be established by its record entry. The proof necessary for a record entry's preparation can be supplied and its provisions settled in an adversary hearing.
Miller v. Miller, supra note 20; Elliott v. City of Guthrie, Okla., 725 P.2d 861, 863, n. 10 and 11 [1986].
Johnson v. Johnson, supra note 27 at 542; Elliott v. City of Guthrie, supra note 28; Miller v. Miller, supra note 20.
Armstrong v. Trustees of Hamilton Inv. Trust, Okla., 667 P.2d 985, 987 [1983]; McCullough v. Safeway Stores, Inc., supra note 20 at 1134-1135; Werfelman v. Miller, 180 Okla. 267, 68 P.2d 819, 820 [1937]. An adversarial settlement-of-journal-entry hearing to memorialize a previously rendered judgment or order of the court is essentially a proceeding for a nunc pro tunc memorialization of errors or omissions in the record. Armstrong v. Trustees of Hamilton Inv. Trust, supra at 987. The office of a nunc pro tunc order is to reconstruct and spread of record a true memorial of what did in fact occur in the litigation but about which the court's record speaks either imperfectly or incorrectly or, as it is the case here, it is entirely silent. Dickason v. Dickason, Okla., 607 P.2d 674, 676-677 [1980]; Stevens Expert Cleaners Dyers v. Stevens, Okla., 267 P.2d 998, 1001 [1954]; Brougham v. Independent Potash Chemical Co., 200 Okla. 659, 199 P.2d 211, 212 [1948]. In short, a nunc pro tunc order to supply the terms of a judgment or order actually rendered but not memorialized is the procedural avenue available to make the record, when corrected, "speak the truth." Mabry v. Baird, 203 Okla. 212, 219 P.2d 234, 239-240 [1950]; Stevens Expert Cleaners Dyers v. Stevens, supra at 1001. A nunc pro tunc entry may be supplied at any time. Dickason v. Dickason, supra at 676. The common-law power of a trial court to memorialize its actions nunc pro tunc is not limited by our statutes. A trial court's ruling in a postjudgment contest over a nunc pro tunc settlement or correction of a journal entry constitutes an appealable disposition. Armstrong v. Trustees of Hamilton Inv. Trust, supra at 987; Stevens Expert Cleaners Dyers v. Stevens, supra at 1001.
The trial court's postdecree decision under review must hence be reversed and the cause remanded for a hearing necessary to generate a memorial of the critical predecessor judge's 1977 ruling.
III
THE DEPUY I MANDATE IS PRESUMPTIVELY ENFORCEABLE UNLESS THE DEPUYS SHOW ON REMAND THE EXISTENCE OF A RES JUDICATA BAR TO ITS ENFORCEMENT
Hoeme moved below for the successor judge's assistance to enforce the terms of both the injunction decree and of this court's mandate in Depuy I. Because Hoeme viewed the mandate affirming the injunction as broader in scope than the relief afforded him by the oral midappeal directives, he sought an order directing the entire road dike to be removed rather than one that would be limited to requiring the pipe to be placed in the dike.
Hoeme is, of course, favored by a presumption that the mandate in Depuy I is unconditionally enforceable. The procedural consequence of this presumption — which gives effect to the mandate and also makes the terms of the injunctive relief fully enforceable — would shift to the Depuys the entire burden of showing that the 1977 ruling of the predecessor judge constitutes a terminal postdecree order that must be given res judicata effect.
Ordinarily, the terms of this court's mandate would prevail over anything to the contrary. The one exception — found to be present here — applies when the case goes on appeal from an unstayed or unsuperseded decree and during the appeal's pendency the trial court exercises its plenary power over the enforcement of that unsuperseded or unstayed decision. In any postdecree enforcement proceeding a party would have but one opportunity — a single "whack," so to speak — to secure a trial court's ruling on what steps are required for full and complete compliance with the injunction's terms. Under the restrictions imposed by the "one-whack" principle, the terms of a final order dispositive of that issue, once rendered in a postdecree, midappeal enforcement proceeding, would control over any contrary terms of the mandate.
When a mandate is issued, the trial court has the duty to comply with its terms. Hurst v. Brown, Okla., 266 P.2d 438, 440 [1954]; Grayson v. Stith, 192 Okla. 340, 138 P.2d 530, 533 [1943]. When a cause is remanded for further proceedings, the reviewing court is empowered to require further action, when necessary, to exact complete compliance with its opinion and mandate. State v. District Court of Osage County, 188 Okla. 663, 112 P.2d 381, 383 [1941].
The only purpose and effect of a superseded or stayed judgment is to prevent execution or other proceedings to enforce that decision. Hutchings v. Winsor, 92 Okla. 37, 217 P. 1044, 1045 [1923]; Nicholson v. State, 132 Okla. 298, 270 P. 567, 569 [1928]. "Supersedeas" is different from "stay"; the former denotes a suspension of a judgment's effectiveness pursuant to an undertaking as a matter of statutory right, whereas the latter means suspension of effectiveness by a discretionary act of a trial or appellate court. Wilks v. Wilks, Okla., 632 P.2d 759, 763, n. 12 [1981].
White v. White, supra note 24 at 702; Bruce v. Miller, supra note 24 at 511-512.
Because the injunction decree was neither stayed nor superseded, the deceased predecessor judge retained full cognizance over the methods as well as the terms to be prescribed for its enforcement. Should the predecessor judge's 1977 ruling, when memorialized upon remand, reflect that his oral directives were issued to serve as but an interlocutory provisional postdecree arrangement, or if the ruling in some other way should prove not to bear the attributes of a complete and final disposition that concluded a postdecree enforcement proceeding, no res judicata effect could be accorded any of these directives. This is so because they would not qualify as part of an appealable postdecree order. If, on the other hand, the predecessor judge's oral, open-court decision was in fact a terminal, postdecree, midappeal order — i.e., one that fully brought to an end the contempt proceeding then pending — the unappealed postdecree order would, under the "one-whack" principle, qualify for res judicata effect and control over the Depuy I mandate. Even if the 1977 ruling had erroneously narrowed the scope of the 1976 injunction, later affirmed by this court's mandate, the former would nonetheless control over the latter.
See the terms of 12 O.S. 1981 § 953[ 12-953], supra note 24.
The legal effect of the 1977 midappeal ruling — even if its terms were erroneous — is analogous to that which attaches to a postjudgment modification or vacation order rendered in midappeal under the authority of 12 O.S. 1981 §§ 1031[ 12-1031] and 1031.1 [ 12-1031.1]. When, while an appeal for full review of a judgment remains pending, a vacation or modification proceeding is brought below, which raises different issues and results in a modification order that is not tendered for appellate scrutiny, the modification-of-judgment ruling will control over the terms of the mandate in the appealed judgment. This is true even if the unappealed postjudgment modification be legally erroneous. In short, a post-judgment modification order which becomes final when no appeal is brought — no matter how erroneous — will control over the mandate issued in the appeal from the judgment. See Matter of Estate of Burkhart v. Wabaunsee, Okla., 594 P.2d 361, 363 [1979]; Pleasant v. Allen Bros., 180 Okla. 518, 71 P.2d 114, 116-117 [1937]; Philip Carey Co. v. Vickers, 53 Okla. 569, 157 P.2d 299 [1916]. Where, as here, the issues tendered by a postdecree enforcement proceeding are different from those pressed on appeal from the judgment, because the latter issues pertain solely to the satisfaction of the unsuperseded or unstayed decree by performance of its conditions, the trial court retains full cognizance over enforcement-related matters while an appeal from judgment remains pending and undecided. Under the "one-whack" rule, the postjudgment order on performance-related issues would control over the terms of mandate issued in the appeal from the judgment.
In sum, this court's mandate in Depuy I is presumptively enforceable unless the Depuys succeed on remand in showing that the predecessor judge's 1977 ruling meets the attributes for the application of a res judicata bar. The burden is cast on the Depuys. They can satisfy the onus by showing that (1) the predecessor judge had rendered an appealable order fully dispositive of a postdecree enforcement proceeding and (2) Hoeme allowed that decision to become final by not challenging its terms on appeal.
It does not matter here that the 1977 hearing was characterized as one for contempt and no punishment on the contempt charge may have been issued. The 1977 postdecree enforcement proceeding could have been terminated by any order that was fully dispositive of that proceeding, as distinguished from one made pending disposition of the contempt charge. An order fully dispositive of contempt would be but one example of a postdecree disposition entitled to the "one-whack" rule. See White v. White, supra note 24 at 702. A terminal disposition of a contempt proceeding qualifies as a "final", appealable decision. Hampton v. Hampton, Okla., 609 P.2d 772, 773 [1980].
CONCLUSION
The trial court's decision is reversed and the cause remanded for a settlement-of-journal-entry hearing and for a reassessment of the 1977 ruling's res judicata effect, if any it had. A full-scale hearing must be conducted in advance of effecting a record entry of the predecessor judge's midappeal, postdecree ruling. The preclusive effect of that ruling will depend on whether it can stand as fully dispositive of the 1977 postdecree enforcement proceeding. Upon remand (1) an adversary evidentiary hearing must be held on due notice to the parties; (2) the terms of the predecessor judge's 1977 ruling in question shall be settled; and (3) if it be determined that a postdecree order had in fact been made, its precise provisions must be incorporated within a written memorial for record entry. Once this has been accomplished, the trial judge can then reassess whether the predecessor judge's 1977 ruling, as memorialized by its post-remand record entry, constitutes a final, appealable postdecree disposition that defines the type of work that must be done to satisfy the earlier mandatory injunction's provisions. If the trial judge should determine that the postdecree order lacks the essential attributes of finality required of an appealable postjudgment disposition, then the conditions to be required for full compliance with the injunction decree would remain open and subject to further judicial inquiry and adjudicative cognizance upon remand.
A successor judge can memorialize the adjudications of a predecessor judge. See City of Clinton v. Keen, 192 Okla. 382, 138 P.2d 104, 107-108 [1943]. It is the duty of a trial court, in a proper evidentiary proceeding and upon sufficient proof, to cause to be entered orders and judgments which have failed to be recorded. Cf. Feagin v. Fife, 198 Okla. 57, 175 P.2d 81, 84 [1946]; Parks v. Briggs, Okla., 268 P.2d 283, 284-285 [1954].
An adversary proceeding to determine the sweep of the 1977 decision is also essential to meet the applicable due process standards.
See the provisions of 12 O.S. 1981 § 953[ 12-953], supra note 24. We note that under § 953 not all rulings made in postjudgment stages of litigation are final. Unless they have attained finality, all such rulings are akin to prejudgment interlocutory orders. They may not be appealed nor can they claim the benefit of the res judicata bar until an appealable postjudgment order has been rendered. In short, they remain "in the bosom of the trial court" and within the latter's power to change before "finality" is attained.
The trial court's postdecree order is reversed and the cause remanded for further proceedings not inconsistent with this pronouncement.
HARGRAVE, C.J., and LAVENDER, KAUGER and SUMMERS, JJ., concur.
HODGES and ALMA WILSON, JJ., dissenting. We would affirm the trial court's decision.
DOOLIN, J., dissents.
SIMMS, J., not participating.