*1 However, a attorney request fees. for sec- attorney appears fees
tion 30 claimant’s Thus, panel. it
brief
pears request that claimant’s was denied. request to this Court also denied for
His Sharp, id.
reasons stated at 820. Compensation prop-
The Workers’ Court scope
erly PepsiCo’s ruled as to the
guaranty, inapplicability the auto- Way’s pro- stay bankruptcy
matic in Lee impairment Pepsi-
ceeding, the lack of subrogation rights, of in-
Co’s accrual
terest, attorney and the denial of additional remanded, must proceeding
fees. The
however, findings concerning additional Coy
claimant’s awareness under the test to
determine when the statute of limitations
began run.
ORDER OP APPELLATE PANEL SUS- PART AND
TAINED IN PROCEEDING
REMANDED FIND- FOR ADDITIONAL
INGS.
HARGRAVE, C.J., LAVENDER, DOOLIN,
SIMMS, ALMA WILSON
SUMMERS, JJ., concur.
OPALA, V.C.J., I, concurs parts
II, III, IV, V, and dissents from Part
VI.
KAUGER, J., recused. BANE,
Mary Appellee, E.
ANDERSON, Gary BRYANT & CO. Bryant, Appellants.
E.
No. 68048. Court Oklahoma.
Oct.
Dissenting Opinion Modifie Nov.
d
Rehearing Denied Feb. *2 acquired par- the status of properly appellant, that defendant
ties but did not file a in error and is appellate proceedings. to these *3 thorough Upon review of the record we judgment of the trial find that the should be affirmed.
Mary brought alleging Bane this action misrepresentation, fraudulent breach of contract, and secu- violations Oklahoma learning rities laws after that her invest- Anderson, Bryant ment with defendant qualify Keogh Co. could not as a account. alleged sixty day peri- further She that the during od which she could have transferred existing Keogh from her account to anoth- lapsed, resulting er had in loss of the tax benefits that account. The named de- firm, Anderson, fendants included the President/Broker/Dealer, Bryant & Gary Bryant, employ- E. individual and Michael ee/securities dealers Oden and Larry Phillips. John jury general rendered a verdict for firm, Bryant, plaintiff against and Phillips, jointly severally, and $60,000 $50,000puni- amount of actual and damages. tive The defendants filed judgment motions for new trial and not- verdict, withstanding the which motions were denied on December 1987. On Jr., Rhodes, Gutteridge, Don J. James W. March 1987 the trial court heard and Kerr, Rhodes, City, Irvine & Oklahoma plaintiff’s decided the motion for fees and appellants. costs, $40,254.58 plaintiff and awarded the Robinson, Pickens, Randall J. Travis A. fees, attorney’s costs. $160.00 Musser, Bunch, Hirsch, Robinson & Okla- petition in This court received a City, appellee. homa An January error on amended petition in error filed in this court on complaining the award June SUMMERS, Justice. attorney’s fee. Here we have from a appeal requires This us determine four jury plain- based on a verdict in favor of a 1) appealing issues: Which defendants against tiff/investor her securities broker properly appellate jur- invoked this court’s initially requires and firm. The case us to 2) isdiction? Did the trial court err losing determine which of the defendants permitting damages to assess prоperly jurisdiction below invoked the 3) against agents individual of the firm? appeal, secondly this court on asks us damages legally per- Were the awards of to review the record to determine whether upon competent verdict in favor of the missible based evi- 4) should stand. We find that dence? and Did the court err in its defendants Anderson, Bryant Gary attorney’s & Co. and E. award of fees? Further, Phillips. places eleven other
i. petition in language com- “defendants”, plains affecting of errors THE APPEAL PARTIES TO ” or that the “defendants’ motions were here is whether individual de- The issue overruled, short, etc. it does not read Larry Phillips Gary fendants appeal lodged by single employer like an permitted appear as should be defendant. appellant. request Each has filed a to be party may legal rights, A assert his own a document designated. Bryant filed so. parties. but those of third Wilson Appel- styled “Request Party to Include Gipson, 753 P.2d February Phillips filed lant” on Thus, appear assignments it would these “Application Appearance his to Enter *4 erroneously error are either made because Request Party as Appellant” to be Included Gary Bryant Phillips Larry and/or John plaintiff/appel- February 1988. The parties appellant, they are not or that are responded by showing objec- no lee Bane properly Bryant included because and Phil- party Bryant’s being tion to included as a lips parties appellant only are and their objects any aрpearance by appellant, but inadvertently names were omitted from the Phillips being untimely. as style. proposition partially The latter Throughout entirety pro- of these correct. ceedings attorney represented the same petition in error was filed on Janu- Anderson, Bryant the firm as both known 13, 1987, ary 1987. March the trial On President, Bryant. Phillips & Co. and its attorney’s court heard a motion for fees represented by other counsel. Accord- costs, is attached and court’s order ing in to an uncontested affidavit filed this petition in court to the amended error. The firm attorney following finding; made the Bryant, pleadings in all were appeal pending in “5. That there is an two, Phil- filed on behalf of those but not captioned brought by the case defen- lips. Bryant’s “request included that he be Anderson, Co., Bryant Gary dants & appellant in as an his action” is misstated. Bryant, E. and that this order without thirty day requirement Under the right to make prejudice to the of Plaintiff O.S.1981 990 it is too late for him now to application attorneys’ fees and for her However, appellant. if become an he ac- subsequent incurred to November costs quired attorney’s filing that status his 19, 1987, throughout appeal, error, petition the initial in this court (emphasis supplied) request should treat his as one to amend petition in to reflect correct error his finding that The trial court thus made a Anderson, status. parties appealed, had two Bryant. The Bryant Gary & Co. and E. Bryant timely for the firm and Counsel attorneys for “aрproved” by order was petition in error in the named plaintiff/Bane as well as the two form. We must determine which defendant/appellants. party No has ex- in contemplated were for inclusion that doc- pressly finding by attacked this style petition in ument. The error See, 12 of a in error. O.S. “Anderson, Co.”; only Bryant includes 1.11(d). Supp.1986, App. Rule Ch. Gary Bryant’s name is not there. How- ever, in assignments one of the of error object Bryant’s Bane does not error, petition complains of the trial court’s fail- in being name added to the Gary controlling; parties may ure to dismiss the “defendants but that is not Larry party jurisdic Bryant subject John this court’s matter confer complains Delivery Defendant”. Another tion consent. Merchants (Okla. jury’s assessing punitive damаges action in Esco Tire Joe 1972). However, error was against Gary Bryant Larry E. John tion, proceed- and is not a to these court’s invoked this filed which requiring ings. to deter- pellate jurisdiction, us material the record whether the
mine from
legally
petition is
suffi-
contained in that
II.
always
Bryant is and
cient to indicate that
appellant. Form does not
has been a
LIABILITY
BRYANT’S INDIVIDUAL
evaluating doc-
rule over substance
B.C.,
court. Matter
case,
uments filed
Bryant
main-
Throughout this
has
We hold
only
agent
as the
tained that he acted
assignments
that the substance of
Anderson,
consequently,
Bryant, and that
light
of counsel’s
when viewed
liability can attach. The trial
no individual
finding, indi-
the trial court’s
affidavit and
his motion to dismiss and
court overruled
perti-
Gary
E.
was at all
cates
the issue of his individual liabili-
submitted
that his
party appellant, but
nent times a
jury. Bryant
urges
here
error
ty to the
inadvertantly omitted from the
name was
solely
agency argument.
based
on an
petition in
timely filed
error.
style of the
pursu-
be amended
A
error
general
that a contract
rule is
Bryant’s “Re-
We deem
ant to Rule 1.17.
agent for a disclosed
made with a known
*5
original
amendment to his
quest” to be an
principal
principal is a contract with the
style to
corrected
petition,
allow the
Supply
alone. Moran v. Loeffler-Greene
proper
as a
Bryant’s
to reflect
status
Co.,
132,
P.2d
How
appellant.
ever, equally
exception to the
true is the
general rule:
however,
Phillips,
never
Counsel
acting
scope
of
agent,
“If the
within
Instead he filed
filed a
error.
authority,
pursuit
in the
of a lawful
his
in the
form of
“Request”,
his
not
purpose, steps
engage
to
in a tor-
aside
error,
beyond
and well
injury
property
or
tious act to
during
aggriev
an
time limit allowed
which
another,
personal rights
agent
be-
pro
constitution
party may appeal.
ed
Our
injury
Rog-
comes
done.”
liable
may only invoke this court’s
vides that one
362,
Brummett,
Okl.
220 P.
ers v.
provided by
jurisdiction “in the manner
appli
4.
Art.
The
law.” Okla. Const.
§
fraud,
exception applies to actions for
prescribes the manner for
cable statute
agent.
negligence, and conversion
provides:
lodging
Vaughn,
v.
vised the Water World and was properly trial court submitted the directly in charge project liability jury. of individual No issue pp. firm. Tr. 174-176. documents re exist special findings of fact to controvert sulting $4,381.87 in transfer of Bane’s indi general Bryant, against verdict and we cated that these funds to be were transfer against therefore affirm verdict that Anderson, Bryant Keogh into an red Co. individually. defendant day period account the 60 allowed such penalty. pp. transfers without Tr. III. 186-206, Bryant decided how to di this sale vide commission for between DAMAGES pp. the defendants and Oden. Tr.
206-210. verdict, general jury awarded $50,000 plaintiff $60,000 pu-
Later,
actual
defendant
told
Oden
damages.
argue
nitive
The defendants
ready,
Bane’s cashier’s check
but that
damages was
plaintiff’s
the award of actual
bank could not transfer the
speculative, that
it
the amount
security
account to an
such
exceeded
outside
as Wa-
law,
that the
attempted
ter World. Oden further
allowable
court erred
lo-
damages
failing
require
cate another bank to
this
to be
handle
transac-
future
They
complain of the trial court’s failure to
present
further
reduced to
value.
give
specifically applied
them. We have
damages
argue
punitive
that the
award
subject
this rule to the
of instructions on
rights.
violates their constitutional
”
present
Chicago,
value.
Rock Island &
confirms,
A
of the record
review
Hawes,
Ry.
v.
424 P.2d
Co.
Pacific
plaintiff, that defendants
urged by
(Okla.1967).
argument
their
re
have waived much of
supra,
In Middlebrook
we observed that
garding damages.
per
Parties will not be
damage
a
present
a
value
instruction is not
this
mitted to raise issues before
fundamental issue which can be first raised
in the trial court.
which were not raised
level, citing
at the
v. St.
Walker
(Okla.1956);
Sharp
loss
IV.
might expect,
As one
the defendants’ ex-
ATTORNEY’S FEES
pert presented
a different
scenario. He
necessary
that
to re-
filed,
testified
the amount
After
in error
was
$5,800.
roughly
Bane
He
store
would be
plaintiff’s
trial court
and decided the
heard
figure by. simply adding
at this
The
attorney’s
arrived
motion for
fees and costs.
$4,300
figure
approximately
court considered and decided this motion
the initial
The
plaintiff's
favor on March
early
penalty and
withdrawal
the tax
face of the order
reflects
the court
money
penalty
withdrawing
before
open
con-
ruling
made its
court “at the
age 59V2.
The
arguments
clusion
counsel.”
The
two methods
received
May
apparently
order was
memorialized
compute damages.
it could
Each method
amended
in error
Nothing
had defined
indicates
variables.
seeking
this award
not filed
review of
anything
did
other
apply
than
until June
given by
court to the
the law as
facts
Consequently,
evidence.
we affirm the
1.11(d)
Civil
Rules of
Rule
damages.
of actual
award
requires
timely fil
Appellate Procedure
ing
in error to
an order
review
argue
defendants
the law
period
awarding attorney’s fees. The time
support
punitive
will not
an award of
dam
to run
begins
error
*8
action,
ages
specifically,
in this
and
that
decision, and
pronounces
when
court
an award violates their constitutional
such
subsequently
is
me
not when such decision
failed
rights. Since the defendants
to raise
Miller,
morialized. Miller
punitive
constitutionality
the issue
(Okla.1983). Consequently,
present
damages at trial
failed to
that
seeking this
petition in error
amended
trial,
they
in their
for new
issue
motion
granting
order
attor
court’s
review
may
raise
time
filed,
that
issue
first
will not
ney’s fees was not
appeal.
O.S.1981
considered.
Defendants
contend
that
CONCLUSION
vague
court’s instructions were
and nebu
exрlicitly
The trial
instructed
Finding
pro-
lous.
no reversible
error
damages
us
punitive
ceedings
could be assessed
before
we affirm
on review
fraud,
trial court.
upon finding
gross negligence,
HARGRAVE, C.J.,
though
and LAVENDER
even
it
join
did not seek to
WILSON, JJ.,
ALMA
appeal
concur.
expiration
until
of maxi-
after
mum
time to invoke this court’s
OPALA, V.C.J.,
Judgment
concurs in
reviewing cognizance. I must recede from
II,
III,
Part
concurs in Part
concurs
part
today’s
this
pronouncement.
my
In
I,
IV;
in Part
dissents from Part
view,
party’s
a
to be expressly
failure
included
timely-filed
a
face of
HODGES, J.,
in
I
concurs
Part
in error
appellant
as
II;
Part
dissents from remainder.
appeal.
authority
No less
failure
highest
than our nation’s
tribunal
is un-
KAUGER, J.,
II,
in
concurs
Parts
equivocally committed to this mechanical
IV;
III and
dissents from Part I.
adjective
norm
law.1
DOOLIN, JJ.,
SIMMS and
dissent.
Gary
Bryant
E.
[Bryant]
join
seeks to
appeal
this
party appellant.
as an additional
HODGES, Justice, dissenting
part.
in
argues
He
“through
inadvertence” he
my
In
opinion
damages
awarded
was not
designated
named or otherwise
as
respects:
were excessive in two
relief seeker in the
in
error
(1)
Anderson,
appellant,
comply
Bryant
The court’s failure
with the
Co.
[Company].
Bryant
Company
rule that
Both
damages
future
should
are
be re-
represented by
lawyers.
present
Larry
duced to their
the same
Groendyke
value.
John
Transport,
Merchant,
[Phillips], appearing by sepa-
Inc. v.
1239 practice puts a that invites careless legal for provides warrant ments of error n premium ambiguity. on an omitted This state’s today’s magic transmutation of appellant.3 far co-party legal into a time-honored tradition counsels a relief seeker parties treatment more considerate for who the month this court shifted Only last Not later prius. than prevail at nisi on postal appellee the risk untimely of deliv- morning day following expiration petition.4 Similarly to- ery of a certiorari appeal- the maximum time for of wrong reallocates day court ing, litigant the successful trial-court (a) appellee —the risk of nonde- —the entitled to be afforded the means of ascer- (b) (c) misdesig- maldesignation, signation, inspection taining, mere from facial explicit (d) ambiguity lack or nation for error, petition adversary’s an in those pаrty appel- a timely designation judgment re- parties against whom the lant. I follow the unbroken would instead review, subject judicial and must mains who de- precedent and cast on identify opportunity afforded the with the risk of its failed appellate sires review the four corners of that accuracy, from explicit corrective relief inclusion as an document, litigants against single those party’s timely-filed peti- in another seeker adjudicated obligation has be- whom the in error. tion Today’s pro- as final. come enforceable legal for today’s standards Under judgment creditors of deprives nouncement fatal conse- profession’s rescue from certainty very minimal and essential this sloppy practiсe, a defeated liti- quences of finality. respect judgment’s to a with appel- gant, not named as an who has been aggrieved party’s an The omission of timely- party’s face of another lant on the petition in error is in name from the may error, nonetheless be fact and in law party’s that failure to meet co-party legitimate to have a declared been The fact that jurisdictional deadline.5 I can- inception. appellant very from the was named in adjective neither nor a norm law countenance 611, (1984); Chapter, Etc. patently accepts Western Okl. errs when it as true 615 3. The court after-the-fact, State, Etc., Okl., self-serving lawyer's 1147 acts on a v. stating Bryant’s inad- affidavit name was pro- pertinent § The terms of 12 O.S.1981 vertently omitted from a in error vide: have discover- that its omission could not been may Supreme be com- appeal to the Court "An diligence ed with due before the maximum time disposition appealable of a an menced from commencing expired. Appel- appeal for had by filing with the Clerk of or tribunal court are neither amendable nor im- late records Supreme petition in within Court a peachable by v. means of an affidavit. Jenkins (30) thirty days order the date of final from State, [1914]; 11 Okl.Cr. 145 P. sought to be reviewed. or Lehman, Department Highways State ex rel. Okl., [1969], “Provided, however, in all cases ready complete appeal shall be record 69,636, Co., v. B.F. No. In Miller Goodrich Supreme filing Court within for order, September unpublished prescribed of that court but time rules retroactively the time to file an court extended period than six a of not more Although untimely brought petition. certiorari judg- the date of the order or months from Appeals litigant had the defeated in the Court of complained of unless the ment Court, clerk be- mailed the instrument to this court’s shown, good shall extend cause filing, expiration prescribed time for fore that, Provided, further, except time. By accepting postal delivery late. came too herein, provided error as a timely, the belated certiorari juris- appeal steps perfecting an are not all prius the risk makes the nisi victor bear [Emphasis added.]” dictional. nondelivery delivery. misdelivery, or late postal pro- pertinent terms of 12 O.S.1981 69,636, Sep- No. See Miller v. B.F. Goodrich vide: dissenting opin- (unpublished tember perfecting possible, errors "Where Lavender, J., V.C.J., by Opala, with whom ion promptly in the trial peal be raised must Similarly prevailing party joined). it is the here court, perfecting an and errors in omission who is made to bear the risk of fatal may trial court been raised in the could have timely-filed petition in error. from time in the raised for the first not be waive infra; Presby- court. §§ O.S.1981 defect Corr., Okl., except *10 perfecting an 693 error in Hosp. v. Tax-Roll terian Bd. of 1240 caption invoking power or was otherwise grant this court’s correc- identified appellant body any petition in the tive permitted relief.10 The law has never
in error filed in undisputed,6 this case is timely appealed, counter-, one who has not cross-appealed, or to advance for review reviewing cognizance This court’s is invo- any error.11 reversible only provided by cable “in the manner 7, 4, law.” Art. Okl. Const.7 The Su- § Today’s pronouncement contrary to at preme powerless Court is to entertain a disposition least one recent in a case where plea for lodged corrective relief after aggrieved parties, represented two by sep- expiration statutory period; failure to counsel, sought arate corrective relief in bring timely appeal juris- a constitutes a Only this court. timely ap- one them defect.8 dictional pealed. brought peti- second its own fifty-two days tion error after the petition An amendment to a error is pealable Conceding event had occurred. permitted its only amplify to include or issues attempt below, reviewing power to invoke our raised parties.9 not to add Allow- late, ing applicant either came too the second to seek review moved for after lapse period appeal’s of maximum its own by sought allowed dismissal and to be law would result in an judi- party appellant unauthorized included as a cial appellant's extension time for cause. This court denied the filing court, petition [Emphasis by a in error.... any any leave of to include error or added.]” presented by issue to and resolved the trial record, supported by court which is but if a Company petition filed an amended in error trial, party has filed a motion' for new errors desig- in which neither nor alleged fairly either not in that motion or not co-appellant. nated or mentioned as a Their comprised grounds alleged within the therein applications appeal later may to be included in this may appeal par- not be asserted petitions such not be treated as in error. Those beyond ty_ [Emphasis 40-day instruments were filed well added.]” period bringing petition allowed for a in error 7; supra 10. See the already
1241
express-
The
holding
tardy
to allow the
liti- of 20 O.S.1971 3002.
order
quest,
§
ly enjoins
appealing
participation
appellant
party
as an
the
gant’s
“[t]he
by
party
designated
caption
‘Ap-
as
timely appeal brought
another
shall be
jurisdictional
pellant’
[emphasis
time
...”
See 20 O.S.
“would contravene the
mine].
12
O.S.1981,
Supreme
12
990.”
1981 3002 and the
Court’s order
limit of
§
§
accompanies
that statute’s text.
appealing
the
'precise identity
of
A
parties represents critical informa-
error is Oklahoma’s coun-
or
terpart
appeal.
federal-court notice of
appellant
required
the
is
to include
of a
tion
filed,
each instrument invests
caption
the
and hence within the When
cogni-
reviewing
the
court with
four corners of the
error. This
3,
April
zance.13 In a recent
Court
is the clear mandate of this court’s
U.S.
implements
provisions
party’s
concededly
the
case a
name
was omit-
1972 order which
"(a) Filing
Appeal.
Empl.
appeal
Rice v. Bd. Review
the Okl.
the Notice of
An
12. See
of
for
Com’n,
permitted by
right
Sec. Com’n and Adair State
Sec.
Okl.
law as
from a district
of
17,
Bank,
71,557, unpublished October
1988
No.
appeals
by
court to a court of
shall be taken
order,
is as follows:
dismissal
whose text
filing
appeal
a notice
with the clerk
of
of
by
“ORDER
Rule
district court within the time allowed
by
Employ
"Petition in error filed Oklahoma
appellant
any step
4. Failure of an
to take
9,
September
Security
ment
Commission on
timely filing
other than the
of a notice of
1988,
untimely pursuant
is dismissed as
validity
appeal does not affect the
5,
Commission’s motion of October
1988. The
grоund only
peal,
such action as the
but is
earlier,
join
Commission’s motion to
appeals
appropriate,
court of
deems
petition in error Adair State Bank is denied.
of
may
appeal.
include dismissal of the
joinder
permit
To
such
would contravene
O.S.1981,
jurisdictional
§
time limit
12
of
"(c)
Appeal. The
Content of the Notice of
See,
County Beverage License No.
State v.
appeal
specify
par-
notice
shall
or
of
ABL-78-145, Okl.,
(1982); Ogle
652
292
taking
designate
appeal;
ties
shall
Okl.,
Ogle,
clerical error of that
ty’s lawyer nearly scenario identical to —a in this case. The Court held “[t]he to name a in a notice
failure appeal is more than excusable ‘informali- ty;’ it constitutes a failure of appeal. I would [Emphasis added.]”
adopt very Oklahoma the same ration nale as that laid down our nation’s
highest tribunal. consistent entirely It is only procedur- with Oklahoma’s own regime uninterrupted
al but also with the jurisprudence.
course this state’s sum, because both bring timely petition
failed to I reject quest
would their belated parties appellant.
status of agree While I
with the court’s treatment of the issues legitimate appellant
raised the sole
(Company), part I dissent from that
opinion ab recognizes Bryant
initio co-party appellant i.e., one who — view, invoke corrective In my relief. judgment against Bryant final became by lapse of time when he bring failed timely appeal join or to the Com-
pany within the maximum in-
terval.
STATE Oklahoma ex rel. OKLA- ASSOCIATION, BAR
HOMA
Complainant,
Stanley PHILLIPS, Respondent. R. No.
SCBD
Supreme Court of Oklahoma.
Jan.
Scavenger
Company,
Torres v. Oakland
2405, 2407,
U.S.
108 S.Ct.