Bank IV Oklahoma, N.A. v. Southwestern Bank & Trust Co.
| Decision Date | 18 March 1997 |
| Docket Number | No. 86910,86910 |
| Citation | 935 P.2d 323 |
| Parties | BANK IV OKLAHOMA, N.A., Appellee, v. SOUTHWESTERN BANK & TRUST COMPANY, an Oklahoma Banking Corporation, Appellant. |
| Court | Oklahoma Supreme Court |
A. Daniel Woska, Gary R. Underwood, Donya Hicks Dunn, Oklahoma City, for Appellant.
Edward O. Lee, John W. Mee, III, Truman E. Coe, Lee & Mee, Oklahoma City, for Appellee.
Two banks are litigating which of them should bear the loss for a check drawn on a closed account. The merits of that dispute are not before us at this time. Our review today is limited to Bank IV's motion to dismiss Southwestern Bank's appeal. 1 By unpublished order we previously granted the motion. We now grant rehearing, vacate the order of dismissal, and deny Bank IV's motion to dismiss. We conclude that the appeal was timely filed, and allow it to proceed.
The posture of the case is that a motion for summary judgment was sustained for Plaintiff, Bank IV, in the amount of $86,839.75, on December 29, 1995. The trial judge's order was handwritten on a court minute form and filed that date. However, the judge crossed out the word "minute" and wrote in the word "order".
Defendant/Appellant learned of the court's action by telephone, and later received a copy. We need not recite the other circumstances surrounding the December 29 filing, because if that order is the appealable one, even under Appellant's version and theory, its petition in error is one day out of time. The journal entry of judgment was filed January 12, 1996, which means that if it is the appealable order here, Appellant's petition in error of February 2 is in plenty of time.
Southwestern Bank filed its petition in error on February 2, 1996, and an amended petition in error on February 14, 1996. 2 Bank IV argues Southwestern Bank's petition in error filed February 2 was untimely for reason that it was filed more than 30 days after December 29, 1995. We conclude that Southwestern Bank's appeal is timely because of 12 O.S.1993 Supp. § 696.2, our recent opinion McMillian v. Holcomb, 907 P.2d 1034 (Okla.1995), and Rule 12 of the Rules for the District Courts of the Seventh Judicial District. 3
Section 696.2 says in pertinent part:
"The following shall not constitute a judgment, decree, or appealable order: .... informal statement of the proceedings and relief awarded, including, but not limited to ... instructions for preparing the judgment, decree, or appealable order"
We recently held that "an order directing the prevailing party to prepare a journal entry or judgment of the court's decision makes that order containing the direction a non-appealable event." McMillian, 907 P.2d at 1036. Appellant Southwestern Bank argues on rehearing that Bank IV was required by local court rule to prepare a journal entry of judgment, and that this rule has the same effect as if it were specifically stated in the order of December 29th. We agree.
Rule 12 of the Seventh Judicial District in effect at the time of the December 29th order states in part:
When a motion is ruled on, counsel for the prevailing party shall within ten (10) days thereafter prepare a journal entry of the ruling and present it to counsel for the adverse parties, and if it be approved by all the attorneys, it shall be presented to the court for signature. If counsel are unable to agree upon the form of journal entry, the prevailing party shall give notice of presentation and present the matter for settlement of journal entry at the next motion day of the division in which said matter was heard, or such other time as the assigned judge shall direct. (emphasis added)
This local rule clearly requires counsel for the prevailing party, in this case Bank IV, to prepare the journal entry and present it to opposing counsel, in this case Southwestern's.
District Courts may impose a local rule that has the force and effect of law when it does not conflict with statute, the Oklahoma Constitution or U.S. Constitution. Texas Oklahoma Express v. Sorenson, 652 P.2d 285, 287 (Okla.1982); Oklahoma County Sheriff v. Hunter, 615 P.2d 1007, 1008 (Okla.1980). See Petuskey v. Freeman, 890 P.2d 948, 950 (Okla.1995), where we discussed the statutory authority of a presiding judge, and 20 O.S.1991 Ch. 1, App. 2, Rule 8, providing that a chief judge of a district court has the power to adopt rules consistent with those adopted by the Supreme Court and the presiding judge.
Local rule 12 also states that: "Compliance with Rule 4 of The Rules for District Courts adopted by Supreme Court shall be mandatory." Rule 4 of the Rules for District Courts states in part that: "The ruling of the court on a motion shall be memorialized by an order prepared by the moving party, or as directed by the court, and shall be filed in the case." 12 O.S.Supp.1993 Ch. 2, App.Rule 4 at (f). Local Rule 12 is consistent with the Rules for the District Courts. Appellee, Bank IV, does not challenge the effectiveness of Rule 12, and we conclude that it has the force and effect of law. 4
One obvious purpose of certain local rules is to require conduct in the case by the parties without the necessity of the trial judge making a formal order to that effect. A judge in the Seventh Judicial District need not specifically state in a ruling on a motion that the prevailing party prepare the journal entry. The prevailing party is already required by local rule to prepare such an entry, and an order to that effect in such a ruling would be surplusage. Had the trial judge not wanted the prevailing party to prepare a journal entry, or wanted its order of December 29th to serve as the journal entry, the judge's order could have stated such.
We conclude that (1) when an order on a motion is silent as to the prevailing party's duty to prepare a journal entry, and (2) a local rule requires the prevailing party to prepare, circulate, and present a proposed journal entry within a specified time of the court's order, then the court's order has the same effect, for the purpose of time to file a petition in error, as an order of the court directing the prevailing party to prepare a journal entry. An order directing the preparation of a journal entry is not appealable, and because of this the order of December 29, 1995 was not the appealable event. Rather, the date on which the subsequent journal entry was filed began the countdown for appeal. McMillian v. Holcomb, 907 P.2d at 1036.
Southwestern Bank's petition in error was filed within thirty days of the date the journal entry was filed in the District Court. The appeal is timely. 12 O.S.Supp.1994 § 990A(A). Bank IV's motion to dismiss is denied with prejudice to its renewal. Southwestern Bank's motion for oral argument and motion for clarification are denied. The appeal shall proceed.
On reconsideration of its earlier dismissal, the court concludes today that the petition in error was timely filed and reinstates this appeal. The court's opinion holds that the January 12, 1996 record entry of the trial court's ruling tendered for our review--and not the earlier December 29, 1995 filed memorial--triggers appeal time in this case. The court reasons that when an order disposing of a motion for summary judgment is silent as to a prevailing party's duty to prepare a journal entry, and a local court rule requires the prevailing party to do so, the order is to be treated as one which merely directs the prevailing party to prepare a journal entry and hence is not an appealable event.
Today's holding rests on the fundamentally flawed notion that the timeliness of an appeal may ever be made dependent on local court rules. Because the pronouncement (a) violates the uniformity-of-procedure mandate of Art. 5, § 46, Okl. Const., 1 and (b) impermissibly delegates to the district courts the Supreme Court's exclusive, legislatively conferred power to regulate appellate process by its own rules, I recede from its opinion. I would hold that the earlier memorial's filing date (December 29) triggered the appeal time and would dismiss the appeal as untimely.
In a dispute between two banks on the issue of which entity should bear the loss for a check drawn on a closed account, the trial court took the plaintiff's [Bank IV] motion for summary relief under advisement and gave judgment to the movant. Memorializing his ruling on a printed court minute form, the trial judge (a) struck from the form the word "minute" and handwrote beneath it the word "order," (b) signed the memorial and (c) filed it on December 29, 1995. 2 The defendant [Southwestern Bank] received a copy of the December 29 memorial on January 2, 1996. 3 Bank IV later prepared an additional journal entry, which, when signed by the trial judge and both counsel, was filed on January 12, 1996. Southwestern Bank's petition in error was filed February 2, 1996.
Bank IV pressed for the appeal's dismissal, arguing that the appealable event was the December 29 memorial and that the February 2 appeal, brought more than 30 days after that date, came too late. This court dismissed the appeal as untimely. Southwestern Bank argues on rehearing for the first time that the Rules of the Seventh Judicial District (Oklahoma County) "have expanded the statute [12 O.S.Supp.1993 § 696.2] 4 and mandated, in every instance, that the prevailing party" prepare the journal entry. I cannot accede, as the court does today, to imposing a different procedure for Oklahoma County District Court appeals from that which governs in other counties.
TODAY'S ANOINTMENT OF LOCAL RULE 12 5
CREATES AN APPELLATE PRACTICE REGIME
THAT OFFENDS THE CLEAR CONSTITUTIONAL
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