Aven v. Reeh

1994 OK 67, 878 P.2d 1069, 1994 Okla. LEXIS 116, 1994 WL 387369

• Court: Supreme Court of Oklahoma
• Decided: July 19, 1994
• Docket: 82865
• Status: Published

Opinions

SUMMERS, Justice.

The issue here is the timeliness of Plaintiffs appeal. Defendants claim the appeal came to this Court too late. We conclude that it came too early, and dismiss the appeal for prematurity.

Plaintiff brought a tort action in the District Court. Defendants filed motions for summary judgment.¹ On December 6, 1993 the trial court caused to be filed an instrument sustaining the motions with prejudice. This order was mailed to the parties on December 7,1993. The petition in error was filed on January 10, 1994. Defendants’ response to the petition in error argues that the appeal was four days late.'

The dispositive issue at this time is whether the order of December 6, 1993 was appealable. The order of December 6, 1993 dismissing the ease appears only as part of an order sheet, and its appearance is thus:

IN THE DISTRICT COURT IN AND FOR TULSA COUNTY

STATE OF OKLAHOMA

On this 6th day of Dec., 1993, the following matters in the designated cases came on for decisions, pursuant to the Rules of the District Court for Tulsa County. The Clerk of the Court is directed to notify counsel of record of the indicated decisions by mailing a copy of the ORDER to them and filing a copy of the ORDER in each case.

/s/ David L. Peterson J.

David L. Peterson

District Judge.

... CJ-93-4599 JOSHUA ALAN AVEN V. RICHARD REEH, et al.

Defendant Reeh and Inbody’s motions to dismiss are granted with prejudice. Notice mailed to: Richard K. Holmes, Joe Faris, Joshua Aven.

The order sheet contains five entries concerning five different cases, and lists the names and addresses of all counsel of record. The entries are followed by a certificate of mailing by a deputy court clerk.

An appealable order must contain the signature of the judge. If possible we follow the clear language of an instrument when construing it. Lemons v. Lemons, 205 Okla. 485, 238 P.2d 790, 792 (1951). The clear language of the order sheet shows that we have a judge-signed order to the clerk to notify counsel of certain action taken by the court and to file copies in each case. The action taken by the court in each case then appears in a series of minute entries following the above-mentioned order. A minute drafted by a clerk is not an order or judgment appealing of record.² We additionally note that pursuant to § 696.2(C), effective October 1, 1993, a minute entry is listed among those things not constituting a judgment, decree or appealable order.

The filing of a judgment or final order in the form as prescribed by statute begins the time to appeal. 12 O.S.Supp.1993 §§ 696.3, 990A. The minute entry showing-dismissal in this case is not appealable. 12 O.S.Supp.1993 §§ 696.2(C), 696.3, 990A.

The entire court file is before us, and its examination shows that no instrument has been filed that meets the requirements of 12 O.S.Supp.1993 § 696.3.³ Such a filed instrument is a jurisdictional predicate to an appeal. 12 O.S.Supp.1993 § 696.2. Its absence requires the dismissal of this appeal as premature. 12 O.S.Supp.1993 § 990A.

We note that § 696.2 referred to above requires that a judgment, decree or appeal-able order “shall be reduced to writing” in conformity with 12 O.S.Supp.1993 § 696.3. See 12 O.S.Supp.1993 § 696.2(A).⁴ The trial court is vested with some discretion in directing counsel to prepare the judgment or order, and the time for its preparation. Id.

Our review of the record shows no order directing the preparation of a judgment in conformity with § 696.3. The record also shows that Plaintiff has made no request to the trial court to require the preparation and filing of such a judgment. At this time we decline to require the trial court to exercise its discretion in requiring the preparation of the judgment when no request to the trial court to act in this regard has been made.⁵ This appeal is dismissed as premature.⁶

HODGES, C.J., and ALMA WILSON, KAUGER and WATT, JJ., concur. LAVENDER, V.C.J., and SIMMS, HARGRAVE and OPALA, JJ., dissent.

1 . One motion is titled a motion to dismiss and one a motion to dismiss and summary judgment. Both motions cite 12 O.S. § 2012(B)(6) and rely upon attached materials that are not part of the pctition. We view these as motions for summary judgment. Dyke v. Saint Francis Hospital, Inc., 861 P.2d 295, 298-299 (Okla.1993).

2 . Elliott v. City of Guthrie, 725 P.2d 861, 863 (Okla.1986); Lillard v. Meisberger, 113 Okla. 228, 240 P. 1067, 1069 (1925), (a clerk's minute noting that the court has overruled a motion for new trial is not an order appearing of record); Render v. Henry Schafer, Inc., 198 Okla. 95, 175 P.2d 330 (1946), (no appeal could be prosecuted from a minute entry reflecting a motion for new trial was overruled when no journal was made of this entry, and court relied upon Lillard, supra,); McCullough v. Safeway Stores, Inc., 626 P.2d 1332, 1335 n. 8 (Okla.1981), (record entry of judgment is not based upon a clerk's minute). Cf. State v. Ford, 573 P.2d 257, 258 (Okla.1977), (journal entry of judgment controls inconsistent minute).

3 .Section 696.3(A) provides:

A. Judgments, decrees and appealable orders that are filed with the clerk of the court shall contain:

1. A caption setting for the name of the court, the names and designation of the parties, the file number of the case and the title of the instrument;

2. A statement of the disposition of the action, proceeding or motion, including a statement of the relief awarded to a party or parties and the liabilities and obligations imposed on the other party or parties;

3. The signature and title of the court; and

4. Any other matter approved by the court.

4 . 12 O.S.Supp.1993 § 696.2 states in part (with footnote omitted and citation added):

After the granting of a judgment, decree or appealable order, it shall be reduced to writing in conformance with Section 10 [§ 696.3] of this act, signed by the court, and filed with the court clerk. The court may direct counsel for any party to the action to prepare a draft for the signature of the court, in which event, the court may prescribe procedures for the preparation and timely filing of the judgment, decree or ap-pealable order, including, but not limited to, the time within which it is to be submitted to the court. If a written judgment, decree or appeal-able order is not submitted to the court by the party directed to do so within the time prescribed by the court, then any other party may reduce it to writing and submit it to the court.

5 . Mandamus is based upon an official’s refusal to perform a plain legal duty resulting from an office, trust or station. State Highway Commission v. Green-Boots Construction Co., 199 Okla. 477, 187 P.2d 209, 213 (1948); Jones v. Board of Ed. of City of Muskogee, 90 Okla. 233, 217 P. 400, 402 (1923). No such refusal appears in the record and Appellant has not argued for the application of any exception to first seeking relief in the trial court.

6 . Plaintiff appears to be in the custody of the Oklahoma Department of Corrections, and mailed the petition in error to this Court. Because of our holding on the prematurity of the appeal we need not discuss the time requirements for filing a petition in error by a prisoner. See Woody v. State, ex rel. Dept. of Connections, 833 P.2d 257 (Okla.1992).