In re Amendment to 12 O.S. CH. 15
| Citation | 2023 OK 55 |
| Decision Date | 08 May 2023 |
| Docket Number | 2023 OK 55 |
| Parties | In re AMENDMENT to 12 O.S. CH. 15, APP. 1, RULE 1.21, RULES OF THE OKLAHOMA SUPREME COURT |
| Court | Supreme Court of Oklahoma |
¶1 The Court hereby amends paragraph (a) of Oklahoma Supreme Court Rule 1.21, 12 O.S.2021, Ch. 15, App. 1, as follows (additions indicated by underline, deletions indicated by strikeout):
(a) District Court Appeals.
An appeal from the district court may be is commenced by filing a petition in error with the Clerk of the Supreme Court after a within thirty days from the date the judgment, decree, or appealable order prepared in conformance with 12 O.S. § 696.3 was is filed with the clerk of the district court. 12 O.S. § 990A.
The following shall not constitute a judgment, decree or appealable order: minute orders or minute entries; docket entries or docket minutes; a verdict; an informal statement of the proceedings and relief awarded, including, but not limited to, summary orders or summary minutes, or a letter or other writing to a party or parties indicating the ruling or instructions for preparing the judgment, decree or appealable order. 12 O.S. §696.2
The date of filing of a judgment, decree or appealable order with the clerk of the district court shall be presumed to be the date of the district court clerk's file stamp thereon.
If the appellant did not prepare the judgment, decree, or appealable order, and Section 696.2 of this title required a copy of the judgment, decree, or appealable order to be mailed to the appellant, the appellee may limit the appellant's time for lodging an appeal by filing proof of service on the appellant with the district court clerk. See 12 O.S. § 990A (A); Owens v. Owens, 2023 OK 12. and the court records do not reflect the mailing of a copy of the judgment, decree, or appealable order to the appellant within three (3) days exclusive of weekends and holidays, after the filing of the judgment, decree, or appealable order, the petition in error may be filed within thirty (30) days after the earliest date on which the court records show that a copy of the judgment decree, or appealable order was mailed to the appellant. 12 O.S. § 990A . See Tidemark Exploration, Inc. v Good, 1998 OK 67, 967 P.2d 1194.
For cross or multiple appeals Rule 1.27 is applicable. The interval allowed for filing a petition in error may not be extended by either the district court or the Supreme Court.
The times to appeal final orders of tribunals other than the district court (for example, Corporation Commission, Tax Commission, and Court of Tax Review) are governed by the specific statutory authority for such appeals, except when these Rules specifically authorize a different period. See Part IV of these Rules.
¶2 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 8th DAY OF MAY 2023.
I.
¶1 Title 12 O.S. 2011 §990A provides that the Supreme Court rules have the force and effect of statutes.[1] My first concern with the proposed rule is the statement in Owens v. Owens, 2023 OK 12, 2023 WL 1980739, that the opinion is "prospective." The Oklahoma Constitution provides at art. 5, §54:
The repeal of a statute shall not revive a statute previously repealed by such statute, nor shall such repeal affect any accrued right, or penalty incurred, or proceedings begun by virtue of such repealed statute.
Because our rules have the same force and effect as statutes, article 5 §54 can be read to substitute "rule" for "statute" to provide:
The repeal of a rule shall not revive a rule previously repealed by such rule, nor shall such repeal affect any accrued right, or penalty incurred, or proceedings begun by virtue of such repealed rule.
¶2 A civil action is commenced by filing a petition with the court. [2] Once a proceeding is commenced in the trial court the proceedings have begun. To confine the meaning of prospective to only where judgment is rendered is contra to the spirit of the law and is a disparate denial of due process. For example A and B file two separate actions on the same day, but B is delayed for whatever reason. A proceeds without interruption, concluding in the trial court. A's appeal results in overruling established precedent, and is given prospective effect. B, under the theory that the action had to be filed on appeal not when it was commenced, but when it reaches appeal, is denied relief because of the holding of Owens, supra.
¶3 This result ignores art. 5, §54 in which "proceedings begun" means when a cause is filed in the district court. It is pending and should receive the benefit of the decision. The amended rule is silent on the prospective question. Prospective needs to be applied to all pending cases whether in the trial court or on appeal to prevent further chaos.
II.
¶4 My second concern is that the proposed rule is in derogation of the existing statute, 12 O.S. 2011 §990A, which provides in pertinent part:
A. An appeal to the Supreme Court of Oklahoma, if taken, must be commenced by filing a petition in error with the Clerk of the Supreme Court of Oklahoma within thirty (30) days from the date a judgment, decree, or appealable order prepared in conformance with Section 696.3 of this title is filed with the clerk of the trial court. If the appellant did not prepare the judgment, decree, or appealable order, and Section 696.2 of this title required a copy of the judgment, decree, or appealable order to be served upon the appellant, and the court records do not reflect the service of a copy of the judgment, decree, or appealable order to the appellant within three (3) days, exclusive of weekends and holidays, after the filing of the judgment, decree, or appealable order, the petition in error may be filed within thirty (30) days after the earliest date on which the court records show that a copy of the judgment, decree, or appealable order was served upon the appellant.
The proposed amended rule provides in pertinent part:
¶5 The Court is without authority to rewrite a statute merely because the legislation does not comport with the court's conception of prudent public policy. [3] When a rule conflicts with a statutory enactment, the statute prevails. [4] As amended, the rule obliterates the 30-day appeal time and the 3-day requirement and creates a trap for the unwary. I called for the elimination of the three day rule in my opinion concurring in part, dissenting in part in Owens. However, that was an appeal to the Legislature to make statutory changes and to establish a 30-day rule for all appeals -- not the court to do so arbitrarily.
III.
¶6 A third concern is that the elimination of the actual notice exception will result in confusion and uncertainty regarding the finality of judgments. A successful litigant may reasonably believe that when a judgment is hand-delivered in court to the appellant, the requirement in §990A for court records to show that the judgment "was served" upon the appellant has been satisfied. After complete enforcement of the judgment, the successful litigant and any third parties relying on the validity of the served judgment may discover that appellant has filed a timely appeal years after service of the judgment. In addition to appellees, trial courts concerned about finality of their judgments will have the additional burden of ensuring the filing of a "proof of service" even in cases where the judgment is handed to the appellant. Even with an application of Owens only to judgments entered after Owens, so that successful litigants should be aware of the strict requirement to file a proof of service even where the appellant is present, inequities could result when an unsuccessful litigant sits on their right to appeal for years where the appellee did not file the proof of service.
¶7 The proof of service requirement in section 990A only applies "[i]f appellant did not prepare the judgment, decree, or appealable order." If appellant prepared the appealable order, the appeal time runs from the date the order is filed. It is not always clear if the order was prepared by the appellant, appellee, trial court, or all three, even where the court directs preparation by a certain party. These varying situations cause uncertainty as to the need for a record proof of service....
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