Aven v. Reeh, 82865

• Decision Date: 19 July 1994
• Docket Number: No. 82865,82865
• Citation: 878 P.2d 1069
• Parties: Joshua A. AVEN, Appellant, v. Richard L. REEH and Dr. Paul Inbody, Appellees.
• Court: Oklahoma Supreme Court

Page 1069

878 P.2d 1069

1994 OK 67

Joshua A. AVEN, Appellant, v. Richard L. REEH and Dr. Paul Inbody, Appellees.

No. 82865.

Supreme Court of Oklahoma.

July 19, 1994.

Appeal from the District Court for Tulsa County.

The Plaintiff, a prisoner in federal custody and later in the custody of the Department of Corrections, brought a tort action against the Defendants/Appellees in the District Court. The Defendants filed motions for summary judgment. The Honorable, David L. Peterson, District Judge, granted the Defendants' motions. The Plaintiff appealed and the Defendants moved to dismiss the appeal.

Appeal Dismissed as Premature.

Joshua A. Aven, pro se.

Joseph R. Farris, Jody R. Nathan, Feldman, Hall, Franden, Woodard & Farris, Tulsa, for appellee Inbody.

Charles O. Hanson, Richard K. Holmes, Tulsa, for appellee Reeh.

SUMMERS, Justice.

The issue here is the timeliness of Plaintiff's appeal. Defendants claim the appeal came to this Court too late. We conclude that it came too early, and dismiss the appeal for prematurity.

Plaintiff brought a tort action in the District Court. Defendants filed motions for summary judgment. ¹ On December 6, 1993 the trial court caused to be filed an instrument The dispositive issue at this time is whether the order of December 6, 1993 was appealable. The order of December 6, 1993 dismissing the case appears only as part of an order sheet, and its appearance is thus:

sustaining the motions with prejudice. This order was mailed to the parties on December 7, 1993. The petition in error was filed on January 10, 1994. Defendants' response to the petition in error argues that the appeal was four days late.

IN THE DISTRICT COURT IN AND FOR TULSA COUNTY

STATE OF OKLAHOMA

On this 6th day of Dec., 1993, the following matters in the designated cases came on for decisions, pursuant to the Rules of the District Court for Tulsa County. The Clerk of the Court is directed to notify counsel of record of the indicated decisions by mailing a copy of the ORDER to them and filing a copy of the ORDER in each case.

/s/ David L. Peterson J.

David L. Peterson

District Judge.

... CJ-93-4599 JOSHUA ALAN AVEN V. RICHARD REEH, et al.

Defendant Reeh and Inbody's motions to dismiss are granted with prejudice. Notice mailed to: Richard K. Holmes, Joe Faris, Joshua Aven.

The order sheet contains five entries concerning five different cases, and lists the names and addresses of all counsel of record. The entries are followed by a certificate of mailing by a deputy court clerk.

An appealable order must contain the signature of the judge. If possible we follow the clear language of an instrument when construing it. Lemons v. Lemons, 205 Okla. 485, 238 P.2d 790, 792 (1951). The clear language of the order sheet shows that we have a judge-signed order to the clerk to notify counsel of certain action taken by the court and to file copies in each case. The action taken by the court in each case then appears in a series of minute entries following the above-mentioned order. A minute drafted by a clerk is not an order or judgment appearing of record. ² We additionally note that pursuant to § 696.2(C), effective October 1, 1993, a minute entry is listed among those things not constituting a judgment, decree or appealable order.

The filing of a judgment or final order in the form as prescribed by statute begins the time to appeal. 12 O.S.Supp.1993 §§ 696.3, 990A. The minute entry showing dismissal in this case is not appealable. 12 O.S.Supp.1993 §§ 696.2(C), 696.3, 990A.

The entire court file is before us, and its examination shows that no instrument has been filed that meets the requirements of 12 O.S.Supp.1993 § 696.3. ³ Such a filed instrument is a jurisdictional predicate to an appeal. 12 O.S.Supp.1993 § 696.2. Its absence requires the dismissal of this appeal as premature. 12 O.S.Supp.1993 § 990A.

We note that § 696.2 referred to above requires that a judgment, decree or appealable order "shall be reduced to writing" in conformity with 12 O.S.Supp.1993 § 696.3.

See 12 O.S.Supp.1993 § 696.2(A). ⁴ The trial court is vested with some discretion in directing counsel to prepare the judgment or order, and the time for its preparation. Id.

Our review of the record shows no order directing the preparation of a judgment in conformity with § 696.3. The record also shows that Plaintiff has made no request to the trial court to require the preparation and filing of such a judgment. At this time we decline to require the trial court to exercise its discretion in requiring the preparation of the judgment when no request to the trial court to act in this regard has been made. ⁵ This appeal is dismissed as premature. ⁶

HODGES, C.J., and ALMA WILSON, KAUGER and WATT, JJ., concur.

LAVENDER, V.C.J., and SIMMS, HARGRAVE and OPALA, JJ., dissent.

OPALA, Justice, with whom LAVENDER, V.C.J., joins and SIMMS, Justice, joins in part, dissenting.

Concluding that the appellant's petition in error was prematurely brought, the court today holds that the filed memorial, here in contest, failed to meet the 12 O.S.1991 § 24 ¹ standards for entry on the journal and the 12 O.S.1993 § 696.3 criteria ² for triggering appeal time. The court dismisses the filed memorial of the court's ruling of December 6, 1993 ³ as a minute rather than a summary

judgment. ⁴ I cannot accede to the court's reasoning.

I

THE SUBSTANTIVE CONTENT OF THE DECEMBER 6 MEMORIAL

DETERMINES WHETHER IT QUALIFIES AS A SUMMARY

JUDGMENT OR AS A MINUTE.

The meaning and effect of an instrument depends on its substantive content. ⁵ The filed paper clearly meets the attributes of a recordable memorial. Its content directs that the defendants be given the requested relief--i.e., dismissal with prejudice--and the "direction" is signed by the judge.

While both judgments and minutes ⁶ are posted on the appearance docket, ⁷ each has a distinct legal identity ⁸ and is facially distinguishable from the other by its content and substance. ⁹ A "minute" of a judge's courtroom ruling internalizes the event or proceeding by a short abstract to be posted solely on the court's appearance docket. It is not the event's official proof. For external use that proof is provided by the "recordable" ¹⁰ memorial that is on file in the case and entered on the journal.

Minutes are never a fit substitute for a judge's recordable entry. ¹¹ Record entry of orders or judgments may never be accomplished by the clerk's minutes or by unsigned (or initialed) entries later posted on the appearance docket. ¹² While a judge, much like a courtroom deputy clerk, may write minutes for posting on the appearance docket, once the minutes are signed by the judge and meet the criteria prescribed in § 24, they are at once, by force of law, transmuted into recordable memorials. After September 30, 1993 the filing of a recordable memorial meeting the § 696.3 criteria--in this case the December 6 summary judgment--begins the 12 O.S.1991 § 990A ¹³ countdown for commencing an appeal.

The December 6 entry's content and substance qualify it as a summary judgment rather than a minute. If the four corners yielded no more than an unsigned or initialed recitation of the events that transpired at trial, ¹⁴ my conclusion would be different. The judge-signed instrument in contest clearly grants the defendants summary judgment, judicially determining the parties' rights in the action. By application of the §§ 24 and 696.3 standards, the December 6 judgment is recordable and, once filed, triggers appeal time. It precludes all further inquiry into the issues joined by the pleadings. ¹⁵ Nothing remains to be done. ¹⁶ Facial examination of this instrument does not reveal any indication that the judge intended a more complete instrument to follow. ¹⁷ In short, the December 6 entry is the filed judgment ¹⁸ which may not be transmogrified into a minute by the judge signing the memorial at a place other than the bottom of the instrument.

II

JUDGES ARE REQUIRED TO SIGN, NOT SUBSCRIBE, INSTRUMENTS TO

MAKE THEM FIT FOR ENTRY ON THE COURT'S JOURNAL.

The court voids the filed and recorded December 6 judgment ¹⁹ by holding it to be an ineffective memorialization of the ruling, a mere minute. Today's opinion rests on the conclusion that because the instrument is

signed, but not "subscribed", ²⁰ by the trial judge, it is a minute. There is no basis in law for this court-imposed requirement of subscription. ²¹ The common law defines "signature" as the placement of a name anywhere upon a document for the purpose of authenticating it. ²² Here the nisi prius judge's signature authenticates the judgment on the face of the memorial. It hence meets the § 24 requirement for entry on the journal.

III

BECAUSE THE DECEMBER 6 SUMMARY JUDGMENT COMPLIES

SUBSTANTIALLY WITH THE REQUIREMENTS OF § 696.3

, IT TRIGGERS APPEAL TIME

It is the filing of an instrument that substantially complies with the § 696.3 criteria ²³ which triggers appeal time under that section's most recent (1993) version. ²⁴ The memorial ²⁵ in contest facially includes the name of the court, the designation of the parties, the file number of the case, a title ["Order"], the relief granted, and the signature of the judge. It substantially satisfies the § 696.3 criteria for triggering appeal time.

IV CONCLUSION

The court today construes § 696.3 as requiring that the conforming memorial not only must be signed by the judge but also must be "subscribed". It engages in indiscriminate labeling by holding that the nisi prius memorial of the December 6 summary judgment is a minute. A memorial of a judgment, which meets substantially the criteria of both 12 O.S.1991 § 24 and 12 O.S.1993 § 696.3, should be recognized as the sole recordable entry for the judgment roll which memorializes the decision and triggers appeal time. Judgments and orders failing to meet both sections' standards should not be recorded. As the December 6 memorial substantially satisfies the § 696.3 criteria for...