McMillian v. Holcomb, 82999

• Decision Date: 31 October 1995
• Docket Number: No. 82999,82999
• Citation: 907 P.2d 1034,1995 OK 117
• Parties: Roger R. McMILLIAN and Katy R. McMillian, husband and wife; Mark K. Vestal and Linda K. Vestal, husband and wife; Brian H. Wakley and Monica L. Wakley, husband and wife, Appellees, v. Derward HOLCOMB and Glenda Holcomb, husband and wife; Appellants, and John F. Cantrell, Tulsa County Treasurer; Board of Commissioners of Tulsa County, Defendants.
• Court: Oklahoma Supreme Court

Page 1034

907 P.2d 1034

1995 OK 117

Roger R. McMILLIAN and Katy R. McMillian, husband and wife Mark K. Vestal and Linda K. Vestal, husband and wife; Brian H. Wakley and Monica L Wakley, husband and wife, Appellees, v. Derward HOLCOMB and Glenda Holcomb, husband and wife; Appellants and John F. Cantrell, Tulsa County Treasurer; Board of Commissioners of Tulsa County, Defendants.

No. 82999.

Supreme Court of Oklahoma.

Oct. 31, 1995.

Appeal from the District Court of Tulsa County.

Charles O. Hanson, Hanson, Holmes, Field & Snider, Tulsa, for Appellants.

Roger R. McMillian, Katy R. McMillian, Mark K. Vestal, Linda K. Vestal, Brian H. Wakley, Monica L. Wakley, Pro se.

SUMMERS, Justice.

Plaintiff landowners, claiming to be landlocked and in need of water service, sued Defendant landowners to condemn an easement of necessity. The trial court ruled for Plaintiffs. A "Motion to Reconsider" was denied, and Defendants appeal. Plaintiffs/appellees move to dismiss the appeal on several grounds, causing the briefing schedule to be suspended. We defer one dismissal issue to merits consideration, deny the others, and allow the appeal to proceed.

This case affords an opportunity to once again construe some of the statutory reforms in appellate procedure that took effect October 1, 1993. The chronology of events is this:

December 1, 1993--Trial court caused Order to be filed finding no proper objection to Commissioners' Report and rendering judgment for plaintiffs. Plaintiffs' attorney was directed to prepare journal entry.

Monday, December 13, 1993--Defendants filed a "Motion to Reconsider".

December 16, 1993--Journal Entry of Judgment filed.

January 5, 1994--Trial court overruled Defendants' motion by order sheet entry.

February 4, 1994--Defendant filed petition in error.

March 1, 1994--Order overruling Defendants' motion filed.

March 7, 1994--Defendant filed amended petition in error.

I. APPEALABILITY OF THE DECEMBER 1, 1993 ORDER OF THE TRIAL COURT.

After the case was filed a Commissioners' Report was returned. Defendants filed a responsive instrument, but the trial court on December 1, 1993 signed and caused to be filed an Order holding that no proper objection to the Commissioner's Report had been filed, and granted judgment to the plaintiffs. We have held that an order adjudicating a right to condemn is appealable pursuant to Effective October 1, 1993 a judgment, decree or appealable order must be in a certain form for the purpose of commencing the time to appeal. Mansell v. City of Lawton, 877 P.2d 1120 (Okla.1994); 12 O.S.Supp.1993 § 696.3. Orders expressed in certain forms were determined by the legislature to not start the appellate clock. Section 696.2 of Title 12 states in part:

12 O.S.1991 § 952(b)(1) as a final order. ¹ The first question, then, is whether the December 1 Order commenced the appellate clock. ²

The following shall not constitute a judgment, decree or appealable order: A minute entry; verdict; informal statement of the proceedings and relief awarded, including, but not limited to, a letter to a party or parties indicating the ruling or instructions for preparing the judgment, decree or appealable order.

12 O.S.Supp.1993 § 696.2(C), (emphasis added).

This statute tells us that orders with "instructions for preparing the judgment, decree or appealable order" fall within the category of orders not constituting a judgment for the purpose of commencing time to appeal. The order of December 1, 1993 specifically stated that Plaintiffs' attorney was to "prepare Journal Entry" of the court's order.

Section 696.2 states that the trial court "may direct counsel for any party to the action to prepare a draft for the signature of the court, ...." 12 O.S.Supp.1993 § 696.2(A). An editorial commentary to this section states that "It is anticipated the past practice of assigning the preparation of the journal entry to the attorney for the prevailing party will continue to be followed." 12 O.S.A. § 696.2 (West 1994), (Oklahoma Comments). However, it was anticipated that the term "journal entry" would be replaced with "judgment" in a direction to prepare the judgment for signature. Id.

We conclude that the combined effect of § 696.2(A) & (C) is 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. The appellate clock starts when the subsequent judgment (or journal entry) is filed with the clerk of the trial court, or mailed to the parties if the matter was taken under advisement. 12 O.S.Supp.1993 § 990A(A). The answer to our first question, then, is that the December 1 Order did not commence appeal time. The December 16 Journal Entry did.

II. EFFECT OF THE "MOTION TO RECONSIDER."

On December 13, 1993 Defendants filed a "Motion to Reconsider And to Vacate" the December 1st order. ³ A timely filed motion for new trial extends the time to appeal; an untimely one does not. 12 O.S.Supp.1993 §§ 653, 990.2(B); Brown v. Green Country Softball Association, 884 P.2d 851 (Okla.1994). December 13, 1993 fell on a Monday, so it was within the 10 days allowed for filing of motions for new trial in 12 O.S.1991 § 653. But the version of § 653 in effect at the time (it had taken effect only October 1, 1993) required that the motion "be filed within ten (10) days after the judgment, decree or appealable order prepared in conformance with Section 10 [§ 696.3] of this act has been filed...." (emphasis added). ⁴ The Journal Entry was not filed until December 16th, so what we have (treating Defendants' December 13th motion the same as we treat one for a new trial) is a premature motion for new trial. ⁵ We recently explained the effect of premature motions for new trial and the recent legislative change to address the problem. Brown v. Green Country Softball Association, supra. We explained that a premature motion had the same effect as one filed too late. In Brown we noted the recent amendment in 12 O.S.Supp.1994 § 653 that made a premature motion for new trial filed after the pronouncement of the judgment a timely filed motion.

And we have concluded that the Order of December 1 was not appealable due to inclusion of the instructions to prepare Journal Entry.

In Brown we also noted that § 653 prior to October 1, 1993 required a motion for new trial to be made within 10 days of when the decision was pronounced, not filed. That motion, just as this one, would have been timely to toll the appellate clock prior to the statutory changes of October 1, 1993. We therefore made our holding prospective from the date of the mandate. Mandate was issued in Brown on December 8, 1994, approximately one year after this motion was filed in the trial court. We conclude that, as in Brown, this premature motion would have been ineffective to extend appeal time, but because Brown is applied prospectively Defendants' motion of December 13th extended their time to appeal. See P & H Oil Field Service, Inc. v. Spectra Energy Corp., 823 P.2d 365 (Okla.1991),

III. THE APPEALABLE EVENT.

The final question on timeliness, then, is to determine the date on which the trial court overruled Defendants' "Motion to Reconsider" in such form as to commence the appellate clock. On January 5, 1994 she overruled Defendants' motion and caused to be filed what we have referred to as a Tulsa County Order Sheet. Aven v. Reeh, 878 P.2d 1069 (Okla.1994); Marshall v. OK Rental & Leasing, Inc., 879 P.2d 132 (Okla.1994). We have held that these are but minute entries and are not appealable under § 696.2. Thus the filing of the January 5th order sheet was not an appealable event. Aven, 878 P.2d at 1070; Marshall, 879 P.2d at 134.

The trial court ultimately memorialized the decision of January 5, 1994 by an order signed on February 28, 1994 and filed on March 1, 1994. That order of March 1, 1994 meets the requirements for the form of an appealable order listed in 12 O.S.Supp.1993 § 696.3, and is the appealable event.

Although the first petition in error filed February 4, 1994 was premature, a supplemental petition in error may be filed to cure a premature petition in error when the appeal has not yet been dismissed as premature. 12 O.S.Sup.1993 § 990A(F). Matter of Estate of Robinson, 885 P.2d 1334, 1336 (Okla.1994). This appeal was thus timely commenced by the amended petition in error filed March 7, 1994.

IV. ACCEPTANCE OF THE AWARD.

Plaintiffs also assert that the appeal should be dismissed because Defendants' cashed the Court Clerk's check representing the amount of the commissioners' award granted by the order of the trial court. The order of December 16, 1993 is titled "Order Confirming Report of Commissioners, Vesting Title And For Disbursement of Funds." An examination of that order shows a finding that the Defendants are entitled to the funds awarded by the commissioners. Defendant landowners counter with an argument that: (1) The A condemnee cannot challenge the necessity of the taking after acceptance of the award when the condemnee does not appeal. ⁶ But this limitation on bringing subsequent proceedings does not bar ongoing proceedings after payment of the award. In Dyco Petroleum Corp. v. Smith, 771 P.2d 1006 (Okla.1989) we stated:

Court Clerk refused to hold the funds after the motion to reconsider was adjudicated; (2) The Court Clerk mailed the check to counsel for Defendants; (3) The check was cashed by their counsel and the proceeds placed into counsel's client trust account; (4) Defendants have obtained no benefit from the funds; (5) Defendants have no objection to paying the funds into any court fund directed by the Supreme Court.

The clearly established policy in Oklahoma in relation to condemnation actions is to allow the condemnee to be compensated for the taking of his interest as soon as possible after that taking has occurred. To that end the Legislature, at 66 O.S.1981 § 54, has provided that the condemnee is...