Bushert v. Hughes

Nickelsen, 1989); Ga.App. Overstreet Dr. Hicks did 317 S.E.2d 588 Sparks at a critical moment.

not abandon

Indeed, evidentiary indicated materials until postponing operation

that he was following not until the week. Dr. Hicks Spark’s with son that

confrontation relationship Sparks.

severed his evidentiary

Having materials reviewed the all inferences and conclusions drawn light in the most

therefrom favorable Ass’n, Daugherty Coop.

Sparks, Farmers (Okla.1984), we conclude that

689 P.2d 947 controversy any as to

there is no substantial

material fact and that Dr. Hicks OST are of law. judgment as a matter

entitled Bank Ket

Daugherty, supra; First State Corp., 891 P.2d chum v. Diamond Plastics reasons, foregoing

For the above and

opinion Appeals is VACAT- Court

ED, judgment court is and the of the district

AFFIRMED.

All the Justices concur.

Benny BUSHERT, Appellee, G.

Loyd HUGHES, Perry Auto d/b/a

Repair, Appellant.

No. 85395.

Supreme Court of Oklahoma.

Feb.

335 advisement, partic- such does ipation require counsel to monitor the case in for the oc- filings the court clerk’s office (the order’s currence of the (2) statutorily filing)? Is the court clerk parties of file- required to mail to all record stamped copies of orders memorialize an- matters taken under advisement? We questions in the affirmative. swer both statutory process1 prescribed Because the (1) handling today’s critical memorial for represents departure from new and drastic (2) in past practice, is found an courthouse statute, presents obscurely written unwary, procedural trap for the we save by giving to Hughes’ appeal from dismissal effect, in day’s purely prospective ac teachings Poafpybitty cordance with the Okl., Skelly Company, 394 P.2d Oil (1964).2 Smith, City, Vicky Carolyn Ponca J. S.

Maine, Perry, appellant. for Barnes, City, for

David R. Oklahoma I pellee. THE ANATOMY OF LITIGATION ALA,

OP Justice. Hughes brought against an action Bushert INTRODUCTION and fraud theories. on breach-of-contraet entry days judgment’s on a ten quest for the Within The issues which Bushert’s Bushert, Hughes jury filed If verdict favor of are: appeal’s dismissal tenders trial.3 The motion was prepara- a motion for new lawyer in the losing party’s assists under advisement.4 matter disposing of the tion of the order 60-day statutory statute still on the qua relied on an elements of the 1. For the sine non ineffective trap of a We saved her from the books. handling process prescribed memorials for change statutory not-so-readily law. detectable see in- embody under matters taken Okl., Guiney, 827 P.2d 170 See also Heimbach section II. fra (1992), example purely of our recent for another procedure application appellate prospective Cty., Cty. Com’rs Seminole 2. Hale v. Bd. obscurely prescribed by articulated statute. State, Okl., (1979); Isbell v. 603 P.2d J., Okl., Etc., (1979) (Opala, 603 P.2d wrongly va- Hughes’ titled "motion to motion— concurring specially). Hale’s and Isbell’s ratio- trial. as a motion cate”—is treated for Poafpybitty, where the court that of nale followed juiy verdict’s filed within ten pronouncement on applied prospectively its grounds available to the and is rested on review law be saved for whether errors of § 651. of 12 O.S.1991 movant under the terms new trial. The in a motion for their inclusion Hess, Okl., Schepp 36 n. timely appealed aggrieved party to the in Hale Okl., (1989); Canupp, Pierson v. judg- Appeals an adverse Criminal from Court of Horizons, (1988); Leasing v. Keo Inc. 550 n. proceeding. grand juiy-initiated ouster ment in a Okl., Co., See also 758-59 the case was unclear whether Because the law of 12 O.S.1991 651. the terms brought that court rather have been should Court, (a) Supreme we saved than in the [Hughes’ Vicky counsel at J. Maine Beier's 4. See wrong timely affidavit, Hughes' response that was filed in attached to trial] (b) timely though appeal, had been treated it as whose to dismiss Bushert’s motion appellant Isbell com- the case remained this court. The inform us that filed in terms 30-day ruling trial motion. lapse on the new advisement menced an after undenied. The affidavit stands provided APA-govemed cases. She period minute the case had been taken under advise- In a handwritten after Hughes’ likely penned by judge) ment. On March ((cid:127)unsigned but (a) lawyer encapsulated its decision received Bushert’s file- trial court from (b) stamped Hughes trial and order.8 denying Hughes’ motion for new 12, 17, brought appeal April his on 19959—with- February 1995 to re- allowing him until days receipt a counsel-fee of his the order’s spond to Bushert’s motion for file- stamped copy days prius but more than 30 of the A nisi order —dated award and costs.5 16, February original’s filing. Bushert moved to dismiss February 1995 and on filed appeal untimely. as this denial. The order 1995—memorializes ap- prepared by Bushert’s counsel and II day by Hughes’ lawyer.6 The after proved Hughes’ counsel moved this order was filed THE STATUTORY REGIME FOR THE awarding stay trial court’s decision on AND PREPARATION FILING OF a counsel fee and costs “until issuance of AND THAT JUDGMENTS ORDERS court.” [sic] a mandate from A MADE MEMORIALIZE DECISION AFTER THE CASE HAS BEEN TAK- copies The record does not disclose that EN UNDER ADVISEMENT denying Hughes a new trial the critical order 1, 199S, parties by Legislature either the October were ever mailed to Effective procedure amended the court clerk or Bushert’s counsel.7 Nor does February journal entry facially filing “judgments, appeal- iden- decrees and embody that tify the memorialized decision as one made able orders” which matters appearance copy Promptly 5. reflects that a was taken under advisement. after The docket February day filing judgment, 3 court minute was mailed of such decree or order, parties' appearance pealable to all counsel. While the cause court shall file- accepted by reviewing a docket not be stamped copies parties ... to be mailed to all entry proper as a substitute for the memorialized appearance who have entered an or who judgment any proceedings or orders or of appeared copies have in the action. The occurring prius, may appel at nisi serve in mailing. person shall state the date of The late tribunal as an authoritative source for identi copies who mailed the ... shall file Certifi- fying the instruments the court clerk has filed in Mailing showing copies cate to whom the establishing any the case or for other matter mailed, they ... were the addresses to which by required spread law is to be on the mailed, mailing.” were and the date of Trust, Okl., docket. Martin v. Lib. Nat. Bank & [Emphasis added.] (1992); Hulsey v. Mid- 179-80 Co., Okl., America Ins. Preferred Vicky [Hughes' 8. at See J. Maine Beier's counsel Co., (1989); Employer’s Casualty 935 n. 5 Little v. Hughes' response trial] affidavit attached to 180 Okl. 687-88 appeal. Bushert's motion to The dismiss by opposing reference stands undenied counsel. judges 6. Oklahoma’s district court cus- staffless tomarily dispose by taken them under of issues jury 9. verdict in the case was received on following advisement in the manner: October 1994. A written memorial of the ruling by copy court notifies the of its minute, judgment capable triggering on that by telephone; letter or verdict— O.S.Supp.1993 prevailing party's prepares counsel then the me- force of morial; (3) opposing approves 696.3—was not filed until December the draft form"; (4) upon securing judge's Although brought judg- "as to December before entered, signature, prevailing party’s Hughes' counsel files the ment was trial, motion for a new process— clerk’s office. This jury filed within ten of the verdict’s the same that used in this case to finalize the reception, timely as came to extend 653(C), time. February consistent with the 13 memorial—is O.S.Supp.1994 pertinent See 12 whose prevailing long-time practice. terms are: person copy "C. A motion for new trial filed after the 7. The who mails a of the order disposing advisement is announcement of the decision on all issues of the issue statutorily required filing judg- to file a "Certificate of Mail- in the case but before the ing” O.S.Supp. in the court clerk's office. See 12 deemed filed ment or decree shall be imme- 696.2(B), pertinent diately judgment whose terms are: after the decree.” "Where a matter is taken under judgment, also for a discussion of the state the written note 15 the court shall infra post-trial effect motions have on time. decree or order that the matter process— stood under advisement. IN THE FILINGS COURT CLERK’S prescribed by the terms of 12 OFFICE FOR THE APPEALABLE to contem- (B)10 appears — (THE EVENT’S OCCURRENCE OR- plate judge’s preparation the tnal FILING) DER’S journal entry.11 To meet the statute’s mini- mum criteria the court’s draft of its ruling process16 finalizing jour must “state ... the matter was taken under nal in this case was initiated when the advisement.”12 The new scheme also re- filed, quires the order a file- mailed to the of a after “promptly” mailed stamped copy must be apprised 1995 minute and them all parties appearance who have entered an ruling that denied the motion for new in the action.13 A Mailing”, “Certificate of trial. Bushert’s prepared counsel then the case, in the which is to be must show filed February prius 13 memorial of the nisi deci when, where and to whom the file-stamped approved Hughes’ sion and counsel it. The copy’s mailing copy was mailed.14 It is the date, appears certificate, as it on the judge signed the order. It was filed on filed triggers running of journali- February Although 1995. matters under advisement.15 None of zation process by motion —set procedure’s this elements was followed in court and out carried —tracks the case before us. practice, immemorial courthouse pro Ill Nei longer acceptable. cedure so used is no ther the nor judge attempted A LITIGANT’S LAWYER WHO AP- comply with legislative require the current PROVES THE FORM AOF NISI govern BECOMES OBLI- ments that PRIUS ORDER and mail GATED TO THE MONITOR CASE ing orders memorializing matters taken

under advisement.17 pertinent provisions 10. O.S.Supp.1993 judgment, of 12 a "If final decree or order has § are: advisement, been taken under all times re- ferred to in this section shall run from the any "... The court direct counsel for file-stamped copy date of aof ... party prepare to the action to a draft for the appealing party, as indicated on the Cer- court, event, signature of the in which Mailing_” [Emphasis added.] may prescribe procedures prep- tificate of O.S.Supp.1993 See also the terms of 12 timely filing judgment, aration 990A(A), § order, provide which an from an including, decree or but to, memorializing ruling limited the time within on a matter taken which it is to [Emphasis be submitted to the court....” under advisement must be commenced within 30 added.] mailing file-stamped copy of the date of pertinent For § terms of 12 O.S.1991 judgment or order—“as indicated on the Certif- 696.2(B), supra see note 7. Mailing." [Emphasis icate added.] judge may delegate responsibili- 11. The trial components customary 16. For individual ty party’s pertinent ato counsel. For the terms practice courthouse enactment, in use before the statute’s 696.2(A), § supra see note 10. supra see note 6. 12. O.S.Supp.1993 terms statutory process 17. For the for orders that de- 696.2(B), supra § note 7. cide issues taken under see section II, supra supra. and note O.S.Supp.1993 13. See terms 696.2(B), supra § note 7. 696.2(B), When measured the terms of February 16 order is It does not deficient. O.S.Supp.1993 14. See mandatory terms contain the recitation that it memori- 696.2(B), supra note 7. alizes a "matter that was taken under advise- ment.” Nor is there in the record a “Certificate when, 990.2(C), Mailing” evidencing per- See 12 where and to whom whose provide: tinent February terms 16 order was mailed. (B)20 constitutionally ques- 13 order By approving the tionable, practice if not indeed infirm. Hughes’ acquiesced preparation and en- for the order’s shortcut try. hardly heard to claim that She can he A very protection is entitled to the she helped to

procedure she circumvent. A PARTY TO PRIVATE DELEGATION February 13 memorial Upon approving the THE OF POWER TO CONTROL lawyer, forwarding it to the victor’s THE APPEAL-TIME TRIGGER OF- obligated Hughes’ to monitor counsel became THE NEUTRALITY ESSEN- FENDS filings for the further in the case THE PROPER TIAL TO FUNCTION- filing— memorial’s event’s occurrence —the THE PROCESS ING OF JUDICIAL bringing in order meet the deadline Open-ended appeal-time power over the appeal.18 trigger may delegated private par- not be agents An ties their without standards.

IV law’s abdication of control would offend the principle neutrality basic in the adminis- POWER PRE- THE LEGISLATURE’S TO judicial process. tration It would make APPELLATE JUR- SCRIBE WHEN en- depend event’s occurrence BE ISDICTION INVOKED SHALL tirely ag- upon the will and of the whim THE SUBJECT AN CANNOT BE OF grieved Public party’s opponent.21 victorious A DELEGATION TO OPEN-ENDED functioning in neutral confidence PRIVATE PARTY judicial process, which is to the rule essential (1) In cases under advisement law, of would be undermined.22 journal delivery judge-signed entry to mailing the court clerk and the later B file-stamped copy appealing party are to today statutory qua non sine of when OF STANDARDLESS DELEGATION To appealable event occurs.19 sanction POW- CRITICAL GOVERNMENTAL private delegation party standardless ER TO A PRIVATE PERSON IS capacity process by tinker with — IMPERMIS- CONSTITUTIONALLY allowing prevailing party’s SIBLE 696.2(B) meet, whim, § at re appellate must quirements jurisdiction and to seize control thus absolute Because law,23 appeal-time trigger provided over the render be invoked the manner —would Stores, Inc., adjudicate McCullough Safeway legal proceedings Unlike in v. should not 18. Ohio, Okl., 1332, (1981), disputes. Tumey 273 U.S. 626 1334 these P.2d before 437, case, 510, 47 S.Ct. 71 L.Ed. 749 And occurred in this both Monroeville, 57, Village Hughes 409 U.S. counsel were no- Ward Bushert’s afforded (1972), 34 L.Ed.2d indicates prius the nisi 93 S.Ct. 267 tice court’s denial stake as direct for that the financial need not be the motion trial—until then under his appeared Tumey. positive or as to be in advisement. prevailing has also come to be the view '[mjost concerning disqualification the law supra pertinent statutory 19. See note 15 for applies equal of interest provisions. because force Davis, adjudicators.’ ... administrative K. 12.04, p. Law 250 Administrative Text pertinent 20. For terms 12 (1972), [Emphasis added.] and cases cited.” (B), supra & see notes 10 and 7. Vitale, 22. See In re 151 Vt. 563 A.2d 7,§ 21. See Okl.Const. art. 2 which states: (1989); People Clancy Superior ex rel. life, liberty, person deprived of “No shall be County, Court Riverside 39 Cal.3d process property, due or of law.” without 24, 27, (1986), Cal.Rptr. Berryhill, also Gibson v. U.S. neutrality call in like terms 1689, 1698, (1973), L.Ed.2d 93 S.Ct. judicial process. where the Court states: Const., pertinent sufficiently provides our art. 7 "It is clear from cases that Okl. part: pecuniary those with interest in substantial power appeal-time to determine when the file-stamped original order to the begins govern- prepare clock must remain within the record place on file the jurisprudence ment’s control. extant required mailing. Our certificate of delegation pow- condemns all standardless 696.2(B) Interpreting § to mandate that genesis er.24 The condemnation’s lies in a private party’s clerk —rather than a principle of constitutional dimension known counsel —mail par- the critical notice to the delególa Latin maxim potestas (a) ties appealing party assures that the will potest delegari25 non It is an extratextual given timely notice of the order’s yardstick measuring legislative conformi- (b) makes the law consistent with the ty prohibition against the constitution’s legislative command for all orders which me- power. unlawful abandonment of morialize matters taken under advisement to plainly today’s so recite. Under construc- When a statute —in this case conspicuous tion a reference (B)26 O.S.Supp.1993 § sus —is entry to “matter taken under advisement”30 ceptible meaning, of more than one the will serve to advise the court clerk that file- give court’s is to it that construction stamped copies must be mailed to the legislation which would save the from facial appearing in the case to their counsel of absurdity27 impervious and make it to con record. Empowering prevail stitutional attack.28 ing party’s determine, will, counsel to at V when time will commence29 would 696.2(B) operate to condemn as unconsti GUIDANCE FOR DETERMINATION OF tutional. It would endorse the standardless TIME WHEN TO APPEAL BEGINS delegation government’s power to a TO RUN FROM ORDERS WHICH private party. We must hence construe the TAKEN DISPOSE OF MATTERS UN- (B) terms of and to mandate that DER ADVISEMENT (a) memorializing orders matters un taken (a) der advisement shall be in the court Because this case addresses itself a filed immediately clerk’s office relatively statutory standard31 for me- after (b) judge’s signature is the court morials of matters taken under advisement affixed (1) (b) clerk “promptly” copy shall mail a recent have convinced us that " * * * Com'n, Okl., 964, appellate original juris- (1992); The and the City 829 P.2d 969 Liddell, Okl., 879, Supreme diction of the Court and all Norman v. other 596 P.2d 882 (1979). appellate courts shall be invoked in the man- provided by [Emphasis ner law." mine.] Court, Okl., County 28. Earl v. Tulsa Dist. 606 City City Dept. 24. The Oklahoma v. State ex rel. 545, Foster, (1980); Okl., P.2d 548 Wilson v. 595 Okl., 3184, 3187, - P.2d -, (1979); 66 OBJ Labor. P.2d Neumann v. Tax Com- - (1995); Party mission, Okl., (1979). Democratic Oklahoma v. 596 P.2d Okl., (1982); Estep, 652 P.2d 277 n. 23 Corporation Homsey, American Home Products judgment 29. A issues from the court and not Okl., (1961); Arnold, 361 P.2d Herrin v. attorneys from the or A trial clerk. (1938). 183 Okl. draft, sign has the and record a judgment a within reasonable time after its ren pronouncement. Manning dition or v. State ex "delegated authority 25. This maxim means that Okl., Dept. Safety, rel. Public Martin, re-delegated”. cannot be See Warner v. 209, 223, (U.S.1850). 11 How. 13 L.Ed. 667 pertinent provision O.S.Supp.1993 30. The of 12 pertinent O.S.Supp.1993 26. For the terms of 12 696.2(B) is: (B), supra see notes 10 and 7. "[Tlhe court shall state in the ... statutory 27. Courts must avoid construction that order that the matter was taken under advise- absurdity would lead to an if this can be done [Emphasis added.] ment." violating legislative without intent. Jackson v. Center, Inc., Okl., Mercy Health 31. For a discussion of the elements of this statu- (1993); Corp. tory process, supra TXO Production v. Oklahoma see section II. appealing party unwary practition- parted to the

procedural pitfalls (2) guidance appeal-time on clock for omnipresent, give clerk and that the er are we developing prius disposing to be done about orders of matters taken what is nisi currently pattern procedure aberrational run from begin advisement the time under memorializing original in matters copy file-stamped use order is compli- advisement. in substantial mailed official statutory regime. guid- ance with present pattern is A serious aberrational today both with the ance offered is consistent when: legislative expressed intent and with OHa- (1) a does show that The record not file- jurisprudence, which holds homa’s extant stamped, copy order was counsel of that the clerk’s notice to by any appealing party but the ever mailed triggers appeal pealable order’s time.32 party's actual notice counsel receives memorial, from other coun- prepared either VI by participation case or sel entry; processing proposed journal aof SUMMARY prepares prevailing party’s counsel derogation statutorily prescribed cri- memorial, judge’s signa- secures the trial govern teria orders which memorialize opposing partic- and-—without counsel’s ture matters knowledge judgment or ipation or —files this case and the court resorted in to an but counsel nor appealable order neither extra-statutory shortcut for op- file-stamped copy mails a court clerk triggering appeal the order counsel; posing or expressly technique, although This time. prevailing party’s mails counsel approved, forgivable. OMahoma’s judge-signed opposing judges stajfless. As a prac- are courthouse judgment or order which does not bear file matter, compliance with the tical strict recent stamp. 696.2(B), §§ in 12 commands described, for the first aberration actu- As 990.2(C) 990A(A) beyond the capacity pro- participation beginning al resources available and outside reach of finalizing judgment cess for judges func- to the institutions impose appealing party order would on the tion. filings obligation to monitor the case the approve orders circum Counsel who appealable clerk’s for the office acquiescence to stances which amount Vigilance occurrence. will disclose event’s shortcutting legislatively proce established filing transpired. the critical has when charged dures are with the monitor example, appeal the second As for filings appealable ing ease the event’s for triggered losing party be when the would anticipated. that occurrence can be When appealable notice or- acquires actual Hughes’ February the approved filing. The der’s aberration last described order, participate elected in the she to abbre judge- requires upon receipt that (albeit viated, extra-statutory process one (sans appealing file signed stamp), practice) consistent with old rules of party inquire filing’s date to ascertain statutory procedure for contravenes new Appeal occurred. when disposition of matters taken advise run from counsel actual- time would the time application Poafpybitty, But for ment. ly that information. receives (1964), Okl., pro and the 696.2(A) today’s pronounce enacting spective give effect we to In (B) ment, consequences Legislature escape could intended she and placing pre in the notice of the event be im- of her own act—that actual McCullough, supra at 1334-35. tions taken under advisement district note 18 court. statutory supra disposing post-trial The order of the motion This case offers another chance to construe required by must be in O.S.Supp. the form 12 by the appellate procedure statutes § 1994 696.3 for the time to commence for 1, was reformed effective October 1993. In filing appeal. the Country Brown v. Green establishing by the time which must Association, 884 P.2d at 853. The Softball Legislature effectively be taken the has now journal 16, entry February 1995 satisfies appealable divided all District Court orders criteria, this time would ordinari judgments groups: into two cases ly begin on that date. where the final decision was not court, by advisement the cases Hughes points where But out post-trial that the the final decision was under advise- motion was taken under and that ment. In group days the first time runs 30 begin time should not to run until the from appealable the date of the date the 16th order was mailed to instrument; in the second it runs 30 him. aWhen matter is taken under advise- from the mailing file-stamped copy date ment and results in an order ad- appealing party. judicated to the in absentia the time to commence

342 pealable pronouncement the ran the date of was appeal “shall from

an judge had control judgment, de- decision the trial file-stamped of a party, day the appealing to as docket to determine on what decision final order cree or Mailing, pronounced. the Certificate of rather would be on indicated O.S.Supp. filing.” 12 the date of than from explained that a In 1921 Court statute 990.2(C). recognizes § Court 1994 judicial adju- not the time for could mandate says, refuses the statute but to this is what Atchison, controversy. of a T. dication & gives is that it. The reason the Court follow S.F.Ry. Long, v. 122 Okla. 251 P. Co. allows is unconstitutional if it statute Hambright City v. See also 489 time to com- lawyer to “tinker” with the Cleveland, (Okla.1960), 496 360 P.2d by determining when to file mence we noted the trial court’s inherent where entry mailing. journal and certificate of by supervise controlling power to its docket must be to be constitutional A statute held disposition opin- The Court’s causes. clearly, plainly in palpably it is unless today challenges appellate statutes ion Tay with the State Constitution. consistent delegation power”, their for “standardless Group Employees & Educ. Ins. lor v. State the creation such standards is not but (Okla.1995) P.2d In Program, 897 277 Atchison, Legislature’s power. T. within determining whether is consistent a statute Only S.F.Ry. supra. v. Long, & Co. not fundamental law the statute is con judge exercising sound discretion determines as unconstitutional when reasonable strued disposing for controversies on the the date As construction is available. constitutional judge’s docket. City Equitable Taxation sociation for (Okla. “juris journal At one time a was City, 901 P.2d 806 Oklahoma prerequisite” appellate dictional to 1995); review. Wa Unit Petroleum Co. v. Oklahoma (Okla. Johnson, P.2d 539 Bd., Johnson v. 674 ter Resources Industries, 1983); Inc., (Okla.1995); Dixon, Willitt ASG Simpson v. P.2d (Okla.1978); P.2d 1296 12 O.S.1981 32.2. I believe construc a reasonable party pre observed that the victorious We possible. tion is journal appealing party— pares the and “The judg- prepares trial court either nearly always on side of the the other ease— judg- party prepare or directs a to ment Id., process.” firm has no control over the O.S.Supp.1993 § 696.2. trial ment. example at was an 542-543. There given statutory authority over court appellant’s judicial right appel to where judgment. preparation and time file the to the control late review within 696.2(A). Reeh, Id. at Aven v. P.2d party. opposing (Okla.1994) explained we trial setting the time for court has discretion in practice hold such Did we 32.2 and as en- gave party one unconstitutional because journal entry was try, and where the not ability right another’s frustrate party, prepared the victorious appellate sensibly review? not. We We did appellant application must be made appellant construed 32.2 to mean that the the trial court relief. Id. at application could file an with the 1071.1 journal entry compel the creation of a appeal. An appel- undo an inclusion on A trial record appellate protected Bishop, right P.2d 412 lant’s review was event. Lucas (Okla.1995). always appellant But a has in the trial court. See Johnson, appeal- power to at n. 5 and Rule 1.24 had the determine when P.2d Appellate would occur in the first instance. of the Rules Procedure Civil able event example, in former times when the Cases. For party apply entry § "is not submitted to the court

1. I would controversies prescribed by was to do so the time where the matter taken under advisement directed within court, party may party prepare judg- any then reduce it to one was directed to other journal writing to the court.” Section states that if submit it ment. against history § appeared 32.2 that ed who given timely 696.2, 990.2, § § § 990A were Id., enacted. notice of the court’s decision.” 819 P.2d Our construction of 32.2 in Johnson includ- at 718. This Court has explained not “An ed the observation that absurd result take, exact form the notice must but we have any would doubtless from flow other con- lawyer stated that required a is not to moni- Id., struction.” 674 P.2d at 542. saidWe tor a trial court docket for the this, explaining preparation jour- of the event. entry thirty days nal within of the decision In Matter Pope, supra, Estate we impossible. adopted was often We one con- said: struction of a statute because another creat- impossibility. today’s ed ease the Implementing the spirit standards and the leaps Court to the conclusion that the statute [v. Mullane Central Hanover Bank & enforce, impossible is with the result that Co., Trust 339 U.S. 70 S.Ct. appellate procedure contrary it creates an L.Ed. 865 progeny, as well as ] its respectfully necessity statute. I find no expressly this court condemned McCul- this construction of the statute. lough Safeway clearly “as in discord process, the notions of due state and prepare journal The failure to or file a obtaining federal” the then duty notion of entry is still within the discretion of the trial to monitor the appeal- court’s docket for sponte, court to control sua and to correct might able events that occur in absentia upon application party. of a The standards when the case was under advisement and govern are within the discretion of the regularly not pro- set on the docket Atchison, S.F.Ry. trial court. T. & Co. v. nouncement of the court’s decision. problem Long, supra. The in this case is unconstitutional, not that the are statutes Pope, Matter Estate 808 P.2d at but that the trial court declined to exer- omitted). (emphasis original and footnote determining cise its discretion for the time placing duty This abhorrence of upon a journal entry was to be filed and counsel to monitor the trial court docket was mailed. A always trial court has had the recognized also in Heiman v. Atlantic Rich discretion to determine when the Co., (Okla.1991) 807 P.2d 257 where we field occur, 696.2, 990.2, §§ event should stated: “There is no to monitor the 990A are constitutional. Id., court’s docket for events.” opinion lawyer’s Court’s states that a McCullough 807 P.2d at 261. Safeway approving journal act of entry prepared by Stores, Inc., (Okla.1981) opposing imposes upon counsel now that law- yer obligation to monitor the docket to attempts distinguish Court this line journal determine the date the is by stating filed. of cases that here both counsel philosophy contrary This statements were judge’s afforded notice of the trial deci- opinions. three of our former filing journal entry. We have ex- sion before the plained is, that the Due requires such, Process Clause calling applying Court without reasonably theory notice to that is calculated constructive notice to when stages judi- to inform them of critical begins equates to run. The Court process. cial Pope, Matter knowledge Estate Thus, P.2d in AT T put & with a circumstance pru- sufficient to Land, (Okla.1991) fact, upon inquiry particular we dent man as to explained process requires due that “when a being that fact the date of for the matter is journal entry.2 the affect- fact, upon 2. "Notice inquiry particular is either actual or constructive.” 25 as to a and who O.S.1991 10. "Actual notice consists in ex inquiry omits to make such with reasonable dili press information of a fact." 25 O.S.1991 gence, is deemed to have constructive notice of imputed by "Constructive notice is notice the law the fact itself.” 25 O.S.1991 13. See Matter of person having to a actual notice.” 25 O.S. (Okla. Pope, Estate 646 n. 32 “Every person 1991 12. who has actual notice 1990). put prudent of circumstances sufficient to man McCullough it was taken under advisement appealable event oc- states that the In appealable appeal date of That event the to runs from the curred in absentia. time decision, rendering Mailing. the date the deci- mailing the on the Certificate of In was notice, the date sion was rendered was must be taken appealable 990.2 the order with equated the date the date of notice was to time to under advisement extend the 990A(A) mailed. In McCul-' of the decision was notice appealable order peal. But in lawyers that the matter was lough the knew face matter must state on its that the was appeal- that under taken taken advisement to extend time under forthcoming, but we able event would appeal. to equate knowledge to this with declined 696.2(B) that in a matter Section states docket. 626 P.2d at duty to monitor the appealable under order must advisement the state the matter taken under ad- that was In a case under advisement where the visement. The order to decision the law- court communicates its does that was taken under advise- not state they appealable will yers know that an event ment, the trial court record shows that but at some in the future. The law- occur time post-trial matter was in fact taken under yers appealable know that an order with comply The order not with advisement. does (hopefully) mailing will be certificate 696.2(B). McCullough But in the Court filed. unlike knowledge this today uses likelihood A compliance strict standard of al impose appealable upon to a future ways jurisdictional applied to a statute. I lawyers a to monitor docket. Kelly, 814 P.2d Graff agree impose to such a burden on the cannot I that these statutes to mean construe practicing bar.3 mailing begins appeal, date of the time to but that in matters opinion The Court’s states compliance require that substantial with the to appeal the time advisement Mailing allow ment of a Certificate will filed. begin some cases will when order is mailing date of to be other shown means appeal begin to In other cases the time will Mailing when was filed. I no Certificate fil- appellant has notice of the order’s when appellant’s appeal to would thus start time appeal ing. In still cases the to other when a filed- case under advisement begin on of the Certificate of will the date stamped entry is copy of the mailed Mailing judge-prepared when the memorial appellant appellant. this case the are filed and mailed in accor- Certificate provided proof appealable that the order was These rules will dance with statutes. 16, 1995. mailed March I would thus hold on judicial energy being result considerable timely. I to be concur explain why consumed on some appeal, this but Court’s result not dismiss untimely, particular are and others dissent from the Court’s rationale. not. Mailing” filed in No “Certificate of I do that to the

this case. not consider fatal on

appealability the order. statutes language. matter do not have identical 990.2(C) if

Section states

order is taken under advisement the time runs indicat- from the date Mailing.

ed on a Certificate of Section

990A(A) if states that judges they must include a statement that the matter was

3. This Court could tell should impose prepara- a time limit on counsel advisement. We could also tell orders. tion submission when a is not taken under them that even matter they require lawyers could tell them that should advisement a time limit for the Mailing prepare and file the Certificate journal entry should be set. submission of approved journal entry, and that the order 33. See notes and 10 for ques- governing orders which decide standards (a) power vailing party’s pro today’s opinion counsel the the Court declines to recognize (after approval draft), plain language regarding ceed her order’s (b) group, saying second to do present then the document so would be an (c) judicial ultimately unconstitutional abdication of judge’s signature, and author- file ity. proceeds The Court then in the clerk’s fashion its office. regime own of matters taken Today’s provisions construction of the under advisement. I find no constitutional (B) (a) require and will work, Legislature’s flaw in the but would prevailing party’s counsel file the order dis- simply follow the statute and appeal let this posing of the matter taken under advisement proceed timely. as immediately securing judge’s after Here are the essential facts. Bushert sued (b) signature charge and the court clerk take Hughes Hughes and won at trial. filed what mailing file-stamped copies of the order to trial, amounts ato motion for timely. executing as well as and judge took the motion under advisement. statutorily-mandated “certificate of mail- February On 3rd the denied the mo- ing”. The court clerk’s to all tion, according unsigned to an court minute (or record), their counsel will assure time- lawyers. which was mailed to the Bushert’s ly help notice event and lawyer prepared judgment, dangers today’s eliminate the aberrational got Hughes’ lawyer approve it as to practices. It will also save journal entry form. The was filed (B) by entrusting from a constitutional cloud 16, but included no certificate that a file- performance critical government to neutral stamped copy had Hughes’ been mailed to officials. lawyer. Hughes’ lawyer On March 20 re- accordingly motion to dismiss is de- lawyer ceived from file-stamped Bushert’s prejudice nied with appeal to renewal. This Hughes of the order. commenced his proceed stage. shall to the decisional appeal April days in less than 30 after he got the order but more than 30 after it WILSON, C.J., LAVENDER, ALMA had been filed. Bushert moved to dismiss HARGRAVE, JJ., SIMMS and concur. being as out of time. post-trial timely motion was and tolled KAUGER, V.C.J., and SUMMERS the time to judgment. from the WATT, JJ., result; concur in in part. dissent 653, 990.2; O.S.Supp.1994 §§ Brown v. Association, Country Green HODGES, J., dissents. Softball An brought SUMMERS, Justice, concur in result but by filing petition thirty days in error within KAUGER, part, dissent in with whom Vice disposing of the date of the order the motion Justice, WATT, Justice, join. Chief 990.2(A). O.S.Supp.1994 § for new trial. 12

Case Details

Case Name: Bushert v. Hughes

Court Name: Supreme Court of Oklahoma

Date Published: Feb 20, 1996

Citation: 912 P.2d 334

Docket Number: 85395

Court Abbreviation: Okla.