Bushert v. Hughes
| Decision Date | 20 February 1996 |
| Docket Number | No. 85395,85395 |
| Citation | 1996 OK 21,912 P.2d 334 |
| Parties | Benny G. BUSHERT, Appellee, v. Loyd HUGHES, d/b/a Perry Auto Repair, Appellant. |
| Court | Oklahoma Supreme Court |
On Appeal from the District Court, Noble County.
Carolyn S. Smith, Ponca City, Vicky J. Maine, Perry, for appellant.
David R. Barnes, Oklahoma City, for appellee.
The issues which Bushert's quest for the appeal's dismissal tenders are: (1) If the losing party's lawyer assists in the preparation of the order disposing of the matter taken under advisement, does such participation require counsel to monitor the case filings in the court clerk's office for the occurrence of the appealable event (the order's filing)? and (2) Is the court clerk statutorily required to mail to all parties of record file-stamped copies of orders that memorialize matters taken under advisement? We answer both questions in the affirmative.
Because the statutory process 1 prescribed for handling today's critical memorial (1) is new and represents a drastic departure from past courthouse practice, (2) is found in an obscurely written statute, and (3) presents a procedural trap for the unwary, we save Hughes' appeal from dismissal by giving today's order purely prospective effect, in accordance with the teachings of Poafpybitty v. Skelly Oil Company, Okl., 394 P.2d 515, 520 (1964). 2
Bushert brought an action against Hughes on breach-of-contract and fraud theories. Within ten days of the judgment's entry on a jury verdict in favor of Bushert, Hughes filed a motion for new trial. 3 The motion was taken under advisement. 4
In a handwritten February 3, 1995 minute (unsigned but likely penned by the judge) the trial court encapsulated its decision (a) denying Hughes' motion for new trial and (b) allowing him until February 17, 1995 to respond to Bushert's motion for a counsel-fee award and costs. 5 A nisi prius order--dated February 13, 1995 and filed on February 16, 1995--memorializes this denial. The order was prepared by Bushert's counsel and approved by Hughes' lawyer. 6 The day after this order was filed Hughes' counsel moved to stay the trial court's decision on awarding a counsel fee and costs "until the issuance of a mandate from the appeals [sic] court."
The record does not disclose that copies of the critical order denying Hughes a new trial were ever mailed to the parties by either the court clerk or Bushert's counsel. 7 Nor does the February 16 journal entry facially identify the memorialized decision as one made after the case had been taken under advisement. On March 20, 1995 Hughes' counsel received from Bushert's lawyer a file-stamped copy of the order. 8 Hughes brought his appeal on April 12, 1995 9--within 30 days of his receipt of the order's file-stamped copy but more than 30 days of the original's filing. Bushert moved to dismiss the appeal as untimely.
THE STATUTORY REGIME FOR THE PREPARATION AND FILING OF
JUDGMENTS AND ORDERS THAT MEMORIALIZE A DECISION
MADE AFTER THE CASE HAS BEEN TAKEN UNDER
Effective October 1, 1993, the Legislature amended the procedure for the preparation and filing of "judgments, decrees and appealable orders" which embody matters that stood under advisement. The new process--prescribed by the terms of 12 O.S.Supp.1993 § 696.2(A) and (B) 10--appears to contemplate the trial judge's preparation of the journal entry. 11 To meet the statute's minimum criteria the court's draft of its ruling must "state ... the matter was taken under advisement." 12 The new scheme also requires that after the order is filed, a file-stamped copy must be "promptly" mailed to all parties who have entered an appearance in the action. 13 A "Certificate of Mailing", which is to be filed in the case, must show when, where and to whom the file-stamped copy was mailed. 14 It is the copy's mailing date, as it appears on the filed certificate, that triggers the running of appeal time in matters taken under advisement. 15 None of this procedure's elements was followed in the case before us.
A LITIGANT'S LAWYER WHO APPROVES THE FORM OF A NISI PRIUS
FILINGS IN THE COURT CLERK'S OFFICE FOR
THE APPEALABLE EVENT'S OCCURRENCE
(THE ORDER'S FILING)
The process 16 for finalizing the journal entry in this case was initiated when the trial judge mailed to the parties a copy of a February 3, 1995 minute and apprised them of the ruling that denied the motion for new trial. Bushert's counsel then prepared the February 13 memorial of the nisi prius decision and Hughes' counsel approved it. The trial judge signed the order. It was filed on February 16, 1995. Although the journalization process--set in motion by the trial court and carried out by the parties--tracks the immemorial courthouse practice, the procedure so used is no longer acceptable. Neither the parties nor the judge attempted to comply with the current legislative requirements that govern the preparation and mailing of orders memorializing matters taken under advisement. 17
By approving the February 13 order Hughes' counsel acquiesced in a practice shortcut for the order's preparation and entry. She can hardly be heard to claim that she is entitled to the protection of the very procedure which she helped to circumvent. Upon approving the February 13 memorial and forwarding it to the victor's lawyer, Hughes' counsel became obligated to monitor further filings in the case for the appealable event's occurrence--the memorial's filing--in order to meet the deadline for bringing an appeal. 18
THE LEGISLATURE'S POWER TO PRESCRIBE WHEN APPELLATE
JURISDICTION SHALL BE INVOKED CANNOT BE THE
SUBJECT OF AN OPEN-ENDED DELEGATION TO A
In cases taken under advisement (1) delivery of the judge-signed journal entry to the court clerk and (2) the later mailing of a file-stamped copy to the appealing party are today the statutory sine qua non of when an appealable event occurs. 19 To sanction a standardless delegation to a private party of the capacity to tinker with this process--by allowing the prevailing party's counsel to meet, at whim, the § 696.2(B) mailing requirements and thus to seize absolute control over the appeal-time trigger--would render § 696.2(A) and (B) 20 constitutionally questionable, if not indeed infirm.
DELEGATION TO A PRIVATE PARTY OF THE POWER TO CONTROL THE
ESSENTIAL TO THE PROPER FUNCTIONING OF
Open-ended power over the appeal-time trigger may not be delegated to private parties or their agents without standards. An abdication of control would offend the law's basic principle of neutrality in the administration of judicial process. It would make the appealable event's occurrence depend entirely upon the will and whim of the aggrieved party's victorious opponent. 21 Public confidence in the neutral functioning of the judicial process, which is essential to the rule of law, would be undermined. 22
STANDARDLESS DELEGATION OF CRITICAL GOVERNMENTAL POWER TO A
Because appellate jurisdiction must be invoked in the manner provided by law, 23 the power to determine when the appeal-time clock begins must remain within the government's control. Our extant jurisprudence condemns all standardless delegation of power. 24 The condemnation's genesis lies in a principle of constitutional dimension known under the Latin maxim of delegata potestas non potest delegari. 25 It is an extratextual yardstick for measuring legislative conformity to the constitution's prohibition against unlawful abandonment of power.
When a statute--in this case 12 O.S.Supp.1993 § 696.2(A) and (B) 26--is susceptible of more than one meaning, the court's duty is to give it that construction which would save the legislation from facial absurdity 27 and make it impervious to constitutional attack. 28 Empowering a prevailing party's counsel to determine, at will, when appeal time will commence 29 would operate to condemn § 696.2(B) as unconstitutional. It would endorse the standardless delegation of the government's power to a private party. We must hence construe the terms of § 696.2(A) and (B) to mandate that (a) orders memorializing matters taken under advisement shall be filed in the court clerk's office immediately after the trial judge's signature is affixed and (b) the court clerk shall "promptly" (1) mail a copy of the file-stamped original order to the parties of record and (2) prepare and place on file the required certificate of mailing.
Interpreting § 696.2(B) to mandate that the court clerk--rather than a private party's counsel--mail the critical notice to the parties (a) assures that the appealing party will be given timely notice of the order's filing and (b) makes the law consistent with the legislative command for all orders which memorialize matters taken under advisement to plainly so recite. Under today's construction a conspicuous reference in the journal entry to "matter taken under advisement" 30 will serve to advise the court clerk that file-stamped copies must be mailed to the parties appearing in the case or to their counsel of record.
GUIDANCE FOR DETERMINATION OF WHEN TIME TO APPEAL BEGINS TO
Because (a) this case addresses itself to a relatively new statutory standard 31 for memorials of matters taken under advisement and (b) recent appeals have convinced us that procedural pitfalls for the unwary practitioner are omnipresent, we give guidance on what is to be done about the developing pattern of aberrational procedure currently in use for memorializing matters taken under advisement.
A serious aberrational pattern is present when:
(1) The record does not show that a file-stamped copy of the appealable order was ever mailed by any party but the appealing party's counsel receives...
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