*1 109 Dowdell, 463 (Okl. Dowdell 953 v. entering estoppel P.2d on erred 1970). Sunrizon, however, has not cited question. support for any authority to an award GRANT- CERTIORARI PREVIOUSLY in a expense copying briefs as costs case of ED; OF THE OF AP- OPINION COURT as one herein. We conclude that such VACATED; TRIAL COURT RE- PEALS producing copies recovering the cost of of VERSED; CAUSE REMANDED. petitions or copies briefs of for certiorari is permissible in this not case. DOOLIN, C.J., HODGES, and Appellant’s request recovery for of costs OPALA, WILSON, ALMA KAUGER Chief, copies copies Reply of Brief JJ., SUMMERS, and conсur. Brief, hereby de- and of Petition is LAVENDER, J., II, in Part concurs O.S.1981, nied. 12 978. § from Part dissents I. Appellant’s request to recover costs for required by O.S.Supp.1986 an fee 20 HARGRAVE, SIMMS, J., V.C.J., and required by fee 20 O.S. certiorari § dissent. 30.4, Supp.1986 required and record fee § 155.1, hereby granted. 28 O.S.1981 § MEMORANDUM OPINION O.S.1981, 12 978. § ON MOTION FOR COSTS C.J., HARGRAVE, OPALA, V.C.J., SUMMERS, Justice. HODGES, SIMMS, LAVENDER, and KAUGER, JJ., ALMA WILSON arising In action of the sale and an out concur. financing Appellant a mobile home Sun- in this rizon Homes was successful Court petition
on to the Court of certiorari (See 103.)
Appeals. page pre-man- In a requests
date motion Sunrizon now costs including appeal, copying
on the cost of
Petition and briefs. were recoverable at
Costs com mon law and we look to statutes SQUARE BANK & TRUST GRANT scope of costs rules to determine the reсov COMPANY, banking an Oklahoma Clark, v. erable. Owens 177 Okl. 61 corporation, Appellee, (1936). P.2d 203 Costs are v. pursuant 12 authorized O.S.1981 978 § Shirley Cecil William WERNER when or final order is reversed. Werner, Appellants. Ruth Chamberlin, also, v. Chamberlin See 720 (Okl.1986). P.2d 725-727 No. 71707. least court has stated on аt three This Supreme Court Oklahoma. expense recovery
occasions that Oct. 1989. statutorily printing briefs not a sanc Educators National “cost”. tioned Life Rehearing Denied Nov. Lanes, Inc., Apache Co. v. Insurance 555 (Okl.1976); City Moore v. P.2d Conservаncy Central Oklahoma Master
District, (Okl.1968); Miller, (Okl. v. P. 322
Combs et al.
1909). statutory exception gener to this A 1276 has
al under O.S.1981 rule § cases, Durland Dur in divorce noted
land, (Okl.1976) an d *2 Bala, City, Oklahoma
Thomas S. pellee.
MEMORANDUM OPINION OPALA, Vice Chief Justice. question dispositive The to be answered whether, pursuant to extant case law 27,1 provisions and the of Rule the time to appeal judgment given from а in absentia triggered by notice to the parties ruling’s sent of the advance entry appearance on the docket. Our an- swer is in the affirmative. Appellants brought petition-in-error their September on 1988 for review of a given which was af- absentia ter the case had taken under advise- letter, By ment. its June parties appealable court notified the of its decision, presumably which was mailed the day.2 petition-in-error same Because the brought expiration days of 30 aftеr day from the letter-notice was parties, appeal sent must be fraught (jurisdic- dismissed as with a fatal tional) flaw.
In accordance with the trial court’s in- struction, appellee prepared journal entry, August 16, which was filed 1988. days Within 30 appellants of that date the 14,1988 September filed their petition-in-er- ror, attaching copy journal of the entry. Because the latter instrument shows on its face was rendered more than 30 earlier, days this court directed them to why show cause should not be untimely. Appellee dismissed as then moved for this court’s on the sua sponte inquiry cognizance. into its appellants maintain time did begin journal to run entry was filed on support 1988. For they copy of this thesis attach a docket, merely which indicates that the trial court took the case under May advisement Appellee’s 1988. Shores, Gary Shores, response supplies Dewbre & copy Okla- this court with a City, appellants. homa letter-ruling the trial court’s June day 1. See note 3. must assume it was sent the indicatеd on infra document, that June parties questions 2. Since none of the when the judge actually letter-ruling, mailed his we
m
imposes
nor Rule 27
stating
its
Neither
an affidavit
counsel
as well as
attempt to infuse
appellants
the stricture
“on or before June
received that document
legal
the invoked
sources.
argument
As their
for the
into
text of
only
1988.”
urge
appeal’s timeliness the
giv-
it is
McCullough teaches
the act of
*3
bring
petition-in-error
time to
a
does
by mail or
ing
parties
notice to the
—either
judgе’s
run until
in
begin to
a
absentia
parties,
by personal delivery to the affected
in
ruling is
the court clerk’s office and
filed
directly
through their
or
counsel—that
copy
then its
sent to counsel.
appealable
an
in
triggers appeal time for
Cоnsistently with
ruling.
absentia
judg
The trial court’s in absentia
mandate, the
McCullough’s
last sentence
ment is not deemed to have been rendered
27,
approvingly
in
which
the text of Rule
trigger
appealable
an
event
so as to
case,
that
teaching
еxplicitly
restates
the
judicial
mailed
notice
that
act is
to the
n parties. McCullough v.
provides
Stores,
Safeway
“ * * *
Okl.,
1332,
Inc.,
[1981];
P.2d
Rule
626
1335
appeal
to
a deci-
time
[t]he
from
Courts,
27,
the
12
Rules for
District
O.S.
sion
in absentia runs
rendered
from
2,
Supp.1985,
App.3
Ch.
Inasmuch as thе
day
personally
mailed
copy
the
its
or
bringing
begin
does not
to
time for
review
parties.
[Emphasis add-
delivered to the
day
appealable
run from the
an
decision is
ed.]”
memorialized,
from its effective
but rather
hold,
appellants
as
Wеre
court to
the
Market,
pronouncement,
Inc. v.
Warehouse
urge,
preceded by
that notice must be
en
Okl.,
853,
[1969],
459
854
the
Berry,
P.2d
ruling
try
judge’s
appearance
of the
on the
appeal
file this
an in
time to
from
absentia
case,
filing
and
in the
greatеr
docket
its
far
to
judgment began
run on June 21—when legal
the
efficacy would be attached to
judge
McCullough
sent his
notice—not
court
than to
unfiled no
clerk’s notice
an
16,
day journal entry
from
directly
judge’s
from the
cham
tice sent
filed.
would lead to an absurd
bers. This indeed
impermissible
Every legal
result.
read into
The
norm,
statute,
qua
text of
27 a
its
com
and into the
Rule
sine
non
whatever
source—
rule—must
that the trial court’s in absentia mon law or court
be construed
condition
conseq
letter-ruling
in
avoid
must
entered on the
a manner that will
absurd
be
appeal
Berry
Emp. Re
pearance
trigger
docket
time.
v. Public
See
uences.4
27,
that,
example,
parties
pertinent
Rules
Assume
in the first
terms of Rule
12
for the
as
2,
Court,
O.S.Supp.1985,
App.,
ruling.
Ch.
District
in
receive
of the
absentia
notice
clerk,
are:
although
copy,
receipt
The court
of a
any
appearance
matter taken under advisement....
"In
it
does not
enters
on the
docket but
******
mail it to
until six months later.
If we
counsel
view,
entering
“[u]pon
filing thе decision with
appellants’
and
it shall be the
were to follow
the clerk’s omis-
clerk,
duty
the court
by
diligence
operate
would
as a
sion
lack of
judge to see that
the minute of
order
Thus,
appeal time.
clerk
valid extension of
judgment setting out such decision are de-
or
livered or
indirectly
given
power
be
a
would
mailed
clerk to
the court
counsel
directly
judge
cannot exercise either
or
himself
any
appearing
party
pro
and to
se.
in the case
obliquely.
has
before statehood this court
Since
The time to
a decision rendered in
from
faithfully
to the doctrine that
committed
day
copy is
runs
its
mailed
absentia
from
utterly
authority to
the trial court is
without
parties.
personally
or
delivered to
by any
any
extend
manner,
time
means or
Stores, Inc., Okl.,
"See, McCullough Safeway
v.
oblique.
Herring Wig-
See
v.
direct or
(1981).
[Emphasis
1332
added.]”
626 P.2d
(the
(1898)
gins,
P. 483
court’s
7 Okl.
54
scenarios demonstrate the absurd results
4. Two
1);
syllabus
Bellamy
Valley
v.
Tele-
Washita
¶
adoption
inevitably flow from an
that would
(1910) (the
Cо.,
P.
phone
Okl.
108
25
389
appellants’
Assume
Rule 27 construction.
2);
Drilling
syllabus
court’s
Philbrock v. Home
¶
judge
of the in
that the
sends notice
absentia
Co.,
(1926) (the
P.
court’s
117 Okl.
246
457
it;
parties
they
receive
to the
Woods,
2);
syllabus
v.
Okl.
19
Starr
162
¶
clerk, although
receipt
copy,
never
Leсhe,
(1933);
v.
Okl.
Manos
205
P.2d
213,
562
it on the
docket and does not
enters
(1951); Salyer National
236
695
v.
P.2d
parties.
appealable
it to the
No
event
mail
Okl.,
Inc.,
n.
Convoy,
1362
Trailer
place
act
take
and the
decisional
would
would be
(1986);
1.15(a),
Appellate
Rules of
Proce-
Rule
nullified
the clerk’s inaction.
System,
tirement
Okl.,
appellate practice
prac-
P.2d
is never a
While
[1989];
Authority
Grand River Dam
dream,
ticing
attorney’s
neither should it
State, Okl.,
[1982],
Yet, oftentimes,
nightmare.
when a
be
judge
takes a case under advisement
Appellants
do not claim
they
never re
attempts
to render the decision in ab-
copy
ceived a
of the trial court’s June
courtroom,
sentia outside the confines of a
1988 letter-decision. That document
re
appealing аttorney’s
milieu is havoc
copy
flects that a
of it was sent to them.
and confusion.
They
questioned
have neither
that critical
fact,
time,
triggers appeal
which
nor ten
ideally portrayed
This dilemma is
in facts
any
dered
material to refute it. Wе must
An
of this case.
adversarial
trial was
*4
assume that if
had not received
by
judge
the trial
heard
who took the case
letter, they
the
would have filed a counter-
23,
May
under advisement on
1988. On
to that effect. See Lawrence v.
affidavit
21, 1988,
by
June
a lettеr was mailed
the
County
Cleveland
Authority,
Home Loan
judge
attorneys informing
trial
to the
them
Okl.,
[1981];
Rule
appellee’s
of his
attorney
decision. The
Court,
Supreme
O.S.1981,
Rules of the
requested
prepare
was
journal entry
to
a
15, App.
Ch.
1.5
judgment
appellаnts’
and submit it to
attor-
letter-notice of his in absen-
ney
approval.
August
On
the
tia
legal
cannot be robbed of its
judgment
signed by
judge
final
was
the
patently
efficacy by
absurd construc-
a
and filed of
record
the case.
tion of McCullough
ap-
or Rule 27. Thе
May
by
The decisional letter of
the
pellants’ view would make a clerk’s act of
judge
case,
was not filed in the
nor
filing,
by
notice-giv-
followed
that official’s
any
judgment
was there
minute or order of
ing, absolutely indispensable
giving
to
a
filing
filed
Entry
before thе
of the Journal
judicial decision the
appeala-
attributes of
Judgment
Sep-
1988. On
bility. Neither McCullough nor Rule 27
14, 1988, appellants
tember
timely filed
validity
makes the
of a
notice of an
their Petition in Error.
in absentia
judgment depend
entry
on its
Stores, Inc.,
Safеway
upon
In
docket.
(Okla.1981),
H3 are de- setting out such decision court clerk or mailed livered Only when the absen-
counsel in the case. entered, filed, mailed to
tia decision is attorneys, does the cоmmencement appeal begin.
the time to present record indicates
Since the taken, appeal time did not
step was not particular run in this case
commence to entry judgment was journal petition
filed. The in error was filed within timely. thus
thirty days thereof and was to state that Justice
I am authorized join me and Justice SUMMERS
KAUGER herein. expressed
in the views *5 OF
The STATE INSURANCE FUND Oklahoma, Plaintiff, State INCORPORATED,
ASARCO d/b/a Corporation,
Federated Metals Defendant. McDaniel, Tulsa, plaintiff. F. Dale No. 73450. Kincaid, Renbarger, Grace F. James L. Strecker, Tulsa, for defendant. E. David Supreme Court of Oklahoma. KAUGER, Justice. 17, 1989. Oct. Insurance Fund State
The State Fund) (Insurance filed suit Oklahoma seeking recission federal district compen- under a workers’ reimbursement policy issued to the defen- sation insurance dant, Incorporated, d/b/a Federat- Asarco (Federated Mеtals). Corporation Metals ed there had been The Fund asserted or, policy, inducement of the fraud in the alternative, mistake of fact.1 a mutual litigation pending Questions dispositive of District Court for the in the States United damages, to be liable tо it continued seventy sion or claims were filed Federated 1. Over Compensa- employees third-party it was relieved from Metals’ in the Workers’ claimants until recission, of these claims were tion Court. A number a statu- obligation a decree of Brooks, Ins. Fund v. termination, resolved State tory expiration the cover- or the (Okla.1988), although finding that age period. grounds might Fund have for recis- Insurance