Cities Service Co. v. Gulf Oil Corp. , 70 O.B.A.J. 778 ( 1999 )

LAVENDER, J.

¶ 1 The threshold and determinative issue in this cause is whether under the facts and circumstances, particular to this case, the appellants have standing to challenge a trial judge’s bench rulings which [by way of sanction] limited their participation in proceedings then pending before her court. For reasons delineated below, we determine that Richard Funk and John T. Schmidt [lawyers or appellants] do lack standing and dismiss their appeal with prejudice to renewal.

I

FACTS AND PROCEDURAL HISTORY

¶ 2 Appellants represent Gulf Oil Corporation, now Chevron USA, Inc. [Gulf Oil], a defendant below, in a case whose central issue was whether an acquisition agreement between its client and Cities Service Company, now OXY USA, Inc. [Cities Service] had been breached. After perceiving violations of the trial court’s orders in limine the trial judge imposed first on Funk and then on Schmidt sanctions which restricted the manner in which they could represent their client during the trial.¹ Although the trial judge characterized the lawyers’ courtroom behavior as “contemptuous”, she never formally held them in contempt nor did she impose monetary fines on either of them, i.e., her rulings bore no criminal connotations and were in all events non-monetary. Appellants seek review of the imposed sanctions, asserting that the judge’s orders— which [along with her comments] were reported by the local media — caused harm to their professional reputations.² Cities Service posits that the appellants’ interests were not injured which raises the issue of their standing to bring this appeal.³

II

THE STANDING ISSUE

A

ITS COMPONENTS

¶ 3 At a minimum standing is composed of three elements. These components are: (1) a legally protected interest which must have been injured in fact — i.e., an injury which is actual, concrete and not conjectural in nature, (2) a causal nexus between the injury and the complained of conduct, and (3) a likelihood, as opposed to mere speculation, that the injury will be redressed by a favorable decision.⁴

¶ 4 Aggrieved status is limited to those persons (a) whose pecuniary interest in a protected right is directly and injuriously affected or (b) whose rights in property are either “established or divested” by the trial court’s rulings.⁵ The complained of harm must be substantial and immediate as opposed to contingent.⁶

¶5 Finally, assessment of standing is not a decision on the ease’s merits. Rather it is a determination whether the plaintiff is the proper party to seek adjudication of the asserted issue.⁷

B

ASSESSMENT OF FUNK AND SCHMIDT’S STANDING

¶ 6 Oklahoma’s extant jurisprudence recognizes that a party’s legal counsel has standing, separate from his client, to appeal an order which imposes a monetary sanction against him/her personally.⁸ The question whether a lawyer — whose sanction is non-monetary and consists solely of limitations on his participation in a trial which has now concluded' — has standing, independent from his client, to seek review of a sanction order has not been addressed before by this Court.

¶ 7 Funk and Schmidt assert that because (1) they possess legally protected property interests in their professional reputations and (2) the trial judge’s bench rulings impaired those interests, they have standing.⁹ They also contend that the harm which they have suffered is pecuniary in nature because their representation of Gulf Oil was limited by the sanction orders. Lastly, they allege that the injury to their reputations will hurt their ability to attract business in the future. It is not contended by either lawyer that their licenses were at any time in jeopardy of divestiture or revocation. The appellants have submitted no authority which holds that they have a protected property right to represent a particular client.¹⁰

¶ 8 We are mindful that it is incumbent upon a trial judge to manage the proceedings in his or her court in order to assure orderly process to all parties.¹¹ In this regard district courts are indeed'entitled to discretion in monitoring their own processes. Sanctions exist to ensure the proper functioning of the legal system and there can be no doubt that they primarily deter and punish. Unquestionably, the trial court’s interests are not synonymous with the trial lawyers’ interests in every instance and there is potential for conflict and injury — be it justified or unjustified — to the legal practitioner’s reputation. Nonetheless, it is not necessary today to, and hence we do not, reach the issue whether Funk and Schmidt’s interests in their professional reputations are legally protectible because there is no reasonable likelihood that the alleged harm would be redressed by a favorable opinion. Hence, the third component of standing is missing.

¶ 9 Assuming for the purpose of analysis that Funk and Schmidt do have a legally protected interest in them professional reputation which was harmed in some way by the imposed non-monetai'y sanctions, their injuries are not remediable under the circumstances of this case. The imposed sanctions consist primarily of limitations on the two lawyers’ right to participate in certain oral presentations before the jury.¹² Both counsel remained at counsel’s table — assisting their client — throughout the trial. The trial is now concluded.

¶ 10 Assaying standing against the facts disclosed by the record, the lawyers’ appeal is in a form which is not capable of judicial resolution. Standing’s third component requires there be a reasonable likelihood that the complained of injury will be redressed by a favorable decision.¹³ The Court can provide no remedy — other than a meaningless declaration — to the lawyers in this appeal. If the sanction orders constitute reversible error, the only possible remedy would be to order a new trial. This relief, if appropriate under the facts disclosed by the record, would be a remedy available to Gulf Oil Company in its own right and not to the appellants who are non-parties in the litigation below. As a personal right Gulfs lawyers are not entitled to a new trial solely to vindicate perceived damage to their professional reputations.

¶ 11 Appellants argue that publication of the trial judge’s comments and the fact of the sanctions in a local newspaper has affected negatively their ability to attract business. Even if they received a favorable decision, it is beyond the Court’s power to order its opinion published by local media. It is a speculative contingency that our holding would be deemed newsworthy by the local press, published and read by those who earlier read the so-called negative press coverage. The Court does not see the requisite likelihood that a favorable decision would remedy the alleged harm to the lawyers’ ability to attract new business. Hence, the appellants lack standing.

¶ 12 If the appellants feel that the trial judge’s conduct was oppressive, their complaints properly lie with the Court on the Judiciary and not here. The latter tribunal has exclusive jurisdiction to hear causes of that character.¹⁴

Ill

SUMMARY

¶ 13 Without reaching the issue whether the appellants’ interests in their professional reputations are susceptible to protection from the harm, if any, occasioned by Judge Shalleross’ non-monetary sanctions, the appeal is dismissed because the lawyers lack standing to pursue the matter. The Court cannot give them the effectual relief which they seek, public remediation of a perceived harm to their professional reputations. Hence, the third component of the Toxic Waste standing test cannot be satisfied.

¶ 14 THE APPEAL IS DISMISSED WITH PREJUDICE.

¶ 15 SUMMERS, C.J., HARGRAVE, V.C.J., SIMMS, KAUGER and WATT, JJ., concur. ¶ 16 WILSON, J., concurs in part; dissents in part. ¶ 17 OPALA, J., dissents. ¶ 18 HODGES, J., not voting.

1 . Judge Shallcross first precluded Funk from questioning witnesses and later denied his participation in closing arguments. Nonetheless, he was allowed to remain at counsel’s table and assist the defense team.

The conduct for which Schmidt was sanctioned occurred late in his closing argument. His sanction included being stopped from concluding his remarks and further being barred from all post-trial proceedings in the case.

2 . In their brief the appellants take umbrage with what they termed "vilifying” comments directed toward them by the trial judge during the proceedings. In reviewing the submitted portions of the proceeding's transcript, it appears that these comments are at best the trial judge’s reflections on the lawyers’ compliance with her earlier orders in limine and pre-trial rulings. Although the characterizations may be harsh, they, by themselves, are not court orders and do not rise to the level of formal sanctions. Hence, these bare comments do not constitute appealable events. See the terms of 12 O.S.1993 § 696.3 for the required characteristics of an appealable order.

3 . See Cities Service's Response to Petition in Error, exh. A.

4 . Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, 890 P.2d 906 (1995); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 559, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992).

5 . Toxic Waste, supra note 4 at 910; Missouri-Kansas-Texas R. Co. v. State, 1985 OK 108, 712 P.2d 40, 42; Cleary Petroleum Corp. v. Harrison, 621 P.2d 528, 530 (1980).

6 . Id. at 42-43.

7 . Toxic Waste, supra note 4 at 910.

8 . Vickers v. Boyd, 1992 OK 42, 836 P.2d 1269, Hammonds v. Osteopathic Hospital Founders Association, 1996 OK 54, 917 P.2d 6.

9 . Johnson v. Board of Governors of Registered Dentists, 1996 OK 41, 913 P.2d 1339. In Johnson, we held that a professional license is a legally protected property interest and the license holder is entitled to due process before its revocation.

10 . Extant jurisprudence teaches that it is the client's right to employ counsel of its choosing. State ex rel. Howard v. Oklahoma Corporation Commission, 614 P.2d 45, 49-50 (Okla.1980); see also Goldston v. American Motors Corporation, 326 N.C. 723, 392 S.E.2d 735 (1990)1

11 . See Gulf, C. & S.F. Ry. Co. v. Smith, 270 P.2d 629 syl. 1 & 2 (Okla.1954). See also Kleiner v. First Nat. Bank of Atlanta, 751 F.2d 1193, 1209 (11th Cir.1985).

12 . For the nature of the imposed sanctions, see supra note 1.

13 . See Toxic Waste, supra note 4.

14 . Olda. Const, art. 7-A, § 2(a). Its pertinent provisions are:

There is created a Court on the Judiciary.... The Court is vested, subject to the provisions of this Article, with sole and exclusive jurisdiction to hear and determine causes arising thereunder. [Emphasis added.]