Bushert v. Hughes

1996 OK 21, 912 P.2d 334, 67 O.B.A.J. 700, 1996 Okla. LEXIS 32, 1996 WL 70269

• Court: Supreme Court of Oklahoma
• Decided: February 20, 1996
• Docket: 85395
• Status: Published

Opinions

OP ALA, Justice.

INTRODUCTION

The issues which Bushert’s quest for the appeal’s dismissal tenders are: (1) If the losing party’s lawyer assists in the preparation of the order disposing of the matter taken under advisement, does such participation require counsel to monitor the case filings in the court clerk’s office for the occurrence of the appealable event (the order’s filing)? and (2) Is the court clerk statutorily required to mail to all parties of record file-stamped copies of orders that memorialize matters taken under advisement? We answer both questions in the affirmative.

Because the statutory process¹ prescribed for handling today’s critical memorial (1) is new and represents a drastic departure from past courthouse practice, (2) is found in an obscurely written statute, and (3) presents a procedural trap for the unwary, we save Hughes’ appeal from dismissal by giving today’s order purely prospective effect, in accordance with the teachings of Poafpybitty v. Skelly Oil Company, Okl., 394 P.2d 515, 520 (1964).²

I

THE ANATOMY OF LITIGATION

Bushert brought an action against Hughes on breach-of-contraet and fraud theories. Within ten days of the judgment’s entry on a jury verdict in favor of Bushert, Hughes filed a motion for new trial.³ The motion was taken under advisement.4

In a handwritten February 3, 1995 minute (•unsigned but likely penned by the judge) the trial court encapsulated its decision (a) denying Hughes’ motion for new trial and (b) allowing him until February 17, 1995 to respond to Bushert’s motion for a counsel-fee award and costs.⁵ A nisi prius order — dated February 13, 1995 and filed on February 16, 1995 — memorializes this denial. The order was prepared by Bushert’s counsel and approved by Hughes’ lawyer.⁶ The day after this order was filed Hughes’ counsel moved to stay the trial court’s decision on awarding a counsel fee and costs “until the issuance of a mandate from the appeals [sic] court.”

The record does not disclose that copies of the critical order denying Hughes a new trial were ever mailed to the parties by either the court clerk or Bushert’s counsel.⁷ Nor does the February 16 journal entry facially identify the memorialized decision as one made after the case had been taken under advisement. On March 20, 1995 Hughes’ counsel received from Bushert’s lawyer a file-stamped copy of the order.⁸ Hughes brought his appeal on April 12, 1995⁹ — within 30 days of his receipt of the order’s file-stamped copy but more than 30 days of the original’s filing. Bushert moved to dismiss the appeal as untimely.

II

THE STATUTORY REGIME FOR THE PREPARATION AND FILING OF JUDGMENTS AND ORDERS THAT MEMORIALIZE A DECISION MADE AFTER THE CASE HAS BEEN TAKEN UNDER ADVISEMENT

Effective October 1, 199S, the Legislature amended the procedure for the preparation and filing of “judgments, decrees and appeal-able orders” which embody matters that stood under advisement. The new process— prescribed by the terms of 12 O.S.Supp.1993 § 696.2(A) and (B)¹⁰ — appears to contemplate the tnal judge’s preparation of the journal entry.11 To meet the statute’s minimum criteria the court’s draft of its ruling must “state ... the matter was taken under advisement.”12 The new scheme also requires that after the order is filed, a file-stamped copy must be “promptly” mailed to all parties who have entered an appearance in the action.¹³ A “Certificate of Mailing”, which is to be filed in the case, must show when, where and to whom the file-stamped copy was mailed.¹⁴ It is the copy’s mailing date, as it appears on the filed certificate, that triggers the running of appeal time in matters taken under advisement.15 None of this procedure’s elements was followed in the case before us.

Ill

A LITIGANT’S LAWYER WHO APPROVES THE FORM OF A NISI PRIUS ORDER BECOMES OBLIGATED TO MONITOR THE CASE FILINGS IN THE COURT CLERK’S OFFICE FOR THE APPEALABLE EVENT’S OCCURRENCE (THE ORDER’S FILING)

The process¹⁶ for finalizing the journal entry in this case was initiated when the trial judge mailed to the parties a copy of a February 3, 1995 minute and apprised them of the ruling that denied the motion for new trial. Bushert’s counsel then prepared the February 13 memorial of the nisi prius decision and Hughes’ counsel approved it. The trial judge signed the order. It was filed on February 16, 1995. Although the journali-zation process — set in motion by the trial court and carried out by the parties — tracks the immemorial courthouse practice, the procedure so used is no longer acceptable. Neither the parties nor the judge attempted to comply with the current legislative requirements that govern the preparation and mailing of orders memorializing matters taken under advisement.17

By approving the February 13 order Hughes’ counsel acquiesced in a practice shortcut for the order’s preparation and entry. She can hardly he heard to claim that she is entitled to the protection of the very procedure which she helped to circumvent. Upon approving the February 13 memorial and forwarding it to the victor’s lawyer, Hughes’ counsel became obligated to monitor further filings in the case for the appealable event’s occurrence — the memorial’s filing— in order to meet the deadline for bringing an appeal.¹⁸

IV

THE LEGISLATURE’S POWER TO PRESCRIBE WHEN APPELLATE JURISDICTION SHALL BE INVOKED CANNOT BE THE SUBJECT OF AN OPEN-ENDED DELEGATION TO A PRIVATE PARTY

In cases taken under advisement (1) delivery of the judge-signed journal entry to the court clerk and (2) the later mailing of a file-stamped copy to the appealing party are today the statutory sine qua non of when an appealable event occurs.¹⁹ To sanction a standardless delegation to a private party of the capacity to tinker with this process — by allowing the prevailing party’s counsel to meet, at whim, the § 696.2(B) mailing requirements and thus to seize absolute control over the appeal-time trigger — would render § 696.2(A) and (B)²⁰ constitutionally questionable, if not indeed infirm.

A

DELEGATION TO A PRIVATE PARTY OF THE POWER TO CONTROL THE APPEAL-TIME TRIGGER OFFENDS THE NEUTRALITY ESSENTIAL TO THE PROPER FUNCTIONING OF THE JUDICIAL PROCESS

Open-ended power over the appeal-time trigger may not be delegated to private parties or their agents without standards. An abdication of control would offend the law’s basic principle of neutrality in the administration of judicial process. It would make the appealable event’s occurrence depend entirely upon the will and whim of the aggrieved party’s victorious opponent.²¹ Public confidence in the neutral functioning of the judicial process, which is essential to the rule of law, would be undermined.²²

B

STANDARDLESS DELEGATION OF CRITICAL GOVERNMENTAL POWER TO A PRIVATE PERSON IS CONSTITUTIONALLY IMPERMISSIBLE

Because appellate jurisdiction must be invoked in the manner provided by law,²³ the power to determine when the appeal-time clock begins must remain within the government’s control. Our extant jurisprudence condemns all standardless delegation of power.²⁴ The condemnation’s genesis lies in a principle of constitutional dimension known under the Latin maxim of delególa potestas non potest delegari25 It is an extratextual yardstick for measuring legislative conformity to the constitution’s prohibition against unlawful abandonment of power.

When a statute — in this case 12 O.S.Supp.1993 § 696.2(A) and (B)²⁶ — is susceptible of more than one meaning, the court’s duty is to give it that construction which would save the legislation from facial absurdity²⁷ and make it impervious to constitutional attack.²⁸ Empowering a prevailing party’s counsel to determine, at will, when appeal time will commence²⁹ would operate to condemn § 696.2(B) as unconstitutional. It would endorse the standardless delegation of the government’s power to a private party. We must hence construe the terms of § 696.2(A) and (B) to mandate that (a) orders memorializing matters taken under advisement shall be filed in the court clerk’s office immediately after the trial judge’s signature is affixed and (b) the court clerk shall “promptly” (1) mail a copy of the file-stamped original order to the parties of record and (2) prepare and place on file the required certificate of mailing.

Interpreting § 696.2(B) to mandate that the court clerk — rather than a private party’s counsel — mail the critical notice to the parties (a) assures that the appealing party will be given timely notice of the order’s filing and (b) makes the law consistent with the legislative command for all orders which memorialize matters taken under advisement to plainly so recite. Under today’s construction a conspicuous reference in the journal entry to “matter taken under advisement”³⁰ will serve to advise the court clerk that file-stamped copies must be mailed to the parties appearing in the case or to their counsel of record.

V

GUIDANCE FOR DETERMINATION OF WHEN TIME TO APPEAL BEGINS TO RUN FROM ORDERS WHICH DISPOSE OF MATTERS TAKEN UNDER ADVISEMENT

Because (a) this case addresses itself to a relatively new statutory standard³¹ for memorials of matters taken under advisement and (b) recent appeals have convinced us that procedural pitfalls for the unwary practitioner are omnipresent, we give guidance on what is to be done about the developing pattern of aberrational procedure currently in use for memorializing matters taken under advisement.

A serious aberrational pattern is present when:

(1) The record does not show that a file-stamped, copy of the appealable order was ever mailed by any party but the appealing party's counsel receives actual notice of the prepared memorial, either from other counsel in the case or by participation in the processing of a proposed journal entry;

(2) The prevailing party’s counsel prepares a memorial, secures the trial judge’s signature and- — without opposing counsel’s participation or knowledge — files the judgment or appealable order but neither counsel nor the court clerk mails a file-stamped copy to opposing counsel; or

(3) The prevailing party’s counsel mails to opposing counsel a copy of a judge-signed judgment or order which does not bear a file stamp.

As for the first aberration described, actual participation in the beginning of the process for finalizing the judgment or appealable order would impose on the appealing party the obligation to monitor the case filings in the court clerk’s office for the appealable event’s occurrence. Vigilance will disclose when the critical filing has transpired.

As for the second example, appeal time would be triggered when the losing party acquires actual notice of the appealable order’s filing. The aberration last described requires that upon receipt of the judge-signed order (sans file stamp), the appealing party inquire of the filing’s date to ascertain when the appealable event occurred. Appeal time would run from the time counsel actually receives that information.

In enacting 12 O.S.Supp.1993 § 696.2(A) and (B) the Legislature intended (1) that actual notice of the appealable event be imparted to the appealing party by the court clerk and (2) that the appeal-time clock for nisi prius orders disposing of matters taken under advisement begin to run from the time the copy of the file-stamped original order is mailed by that official in substantial compliance with the statutory regime. The guidance offered today is consistent both with the expressed legislative intent and with OHa-homa’s extant jurisprudence, which holds that the clerk’s notice to counsel of the ap-pealable order’s entry triggers appeal time.³²

VI

SUMMARY

In derogation of statutorily prescribed criteria ³³ that govern orders which memorialize matters taken under advisement, the parties and the court resorted in this case to an extra-statutory shortcut for the preparation and filing of the order triggering appeal time. This technique, although not expressly approved, may be forgivable. OMahoma’s courthouse judges are stajfless. As a practical matter, strict compliance with the recent commands in 12 O.S.Supp.1993 §§ 696.2(B), 990.2(C) and 990A(A) is beyond the capacity and outside the reach of resources available to the institutions in which trial judges function.

Counsel who approve orders in circumstances which amount to acquiescence in shortcutting legislatively established procedures are charged with the duty of monitoring ease filings for the appealable event’s occurrence that can be anticipated. When Hughes’ counsel approved the February 13 order, she elected to participate in the abbreviated, extra-statutory process (albeit one consistent with old rules of practice) which contravenes the new statutory procedure for disposition of matters taken under advisement. But for the application of Poafpybitty, Okl., 394 P.2d 515, 520 (1964), and the prospective effect we give to today’s pronouncement, she could not escape the consequences of her own act — that of placing in the prevailing party’s counsel the power (a) to proceed (after her approval of the order’s draft), then (b) to present the document for the judge’s signature, and ultimately (c) to file it in the clerk’s office.

Today’s construction of the provisions of § 696.2(A) and (B) will require that (a) the prevailing party’s counsel file the order disposing of the matter taken under advisement immediately after securing the trial judge’s signature and (b) the court clerk take charge of mailing file-stamped copies of the order to the parties as well as of executing and filing the statutorily-mandated “certificate of mailing”. The court clerk’s mailing to all parties (or their counsel of record), will assure timely notice of the appealable event and help eliminate the dangers of today’s aberrational practices. It will also save § 696.2(A) and (B) from a constitutional cloud by entrusting critical performance to neutral government officials.

The motion to dismiss is accordingly denied with prejudice to renewal. This appeal shall proceed to the decisional stage.

ALMA WILSON, C.J., and LAVENDER, SIMMS and HARGRAVE, JJ., concur. KAUGER, V.C.J., and SUMMERS and WATT, JJ., concur in result; dissent in part. HODGES, J., dissents.

1 . For the sine qua non elements of the statutory process prescribed for handling memorials that embody matters taken under advisement, see infra section II.

2 . Hale v. Bd. of Cty. Com’rs of Seminole Cty., Okl., 603 P.2d 761, 764 (1979); Isbell v. State, Etc., Okl., 603 P.2d 758, 760 (1979) (Opala, J., concurring specially). Hale’s and Isbell’s rationale followed that of Poafpybitty, where the court applied prospectively its pronouncement on whether errors of law may be saved for review by their inclusion in a motion for new trial. The aggrieved party in Hale timely appealed to the Court of Criminal Appeals from an adverse judgment in a grand juiy-initiated ouster proceeding. Because the law was unclear whether the case should have been brought in that court rather than in the Supreme Court, we (a) saved the appeal that was timely filed in the wrong court and (b) treated it as though it had been timely filed in this court. The appellant in Isbell commenced an appeal after the lapse of the 30-day period provided for APA-govemed cases. She relied on an ineffective 60-day statute still on the books. We saved her appeal from the trap of a not-so-readily detectable change in statutory law. See also Heimbach v. Guiney, Okl., 827 P.2d 170 (1992), for another example of our recent purely prospective application of appellate procedure prescribed by an obscurely articulated statute.

3 . Hughes’ motion — wrongly titled "motion to vacate” — is treated as a motion for new trial. It was filed within ten days of the juiy verdict’s entry and is rested on grounds available to the movant under the terms of 12 O.S.1991 § 651. See Schepp v. Hess, Okl., 770 P.2d 34, 36 n. 2 (1989); Pierson v. Canupp, Okl., 754 P.2d 548, 550 n. 1 (1988); Horizons, Inc. v. Keo Leasing Co., Okl., 681 P.2d 757, 758-59 (1984). See also the terms of 12 O.S.1991 § 651.

4 . See Vicky J. Maine Beier's [Hughes’ counsel at trial] affidavit, attached to Hughes' response to Bushert’s motion to dismiss this appeal, whose terms inform us that the case remained under advisement for ruling on the new trial motion. The affidavit stands undenied.

5 . The appearance docket reflects that a copy of the February 3 court minute was mailed that day to all parties' counsel. While the appearance docket may not be accepted by a reviewing court as a proper substitute for the memorialized entry of judgment or orders or of any proceedings occurring at nisi prius, it may serve in an appellate tribunal as an authoritative source for identifying the instruments the court clerk has filed in the case or for establishing any other matter which by law is required to be spread on the docket. Martin v. Lib. Nat. Bank & Trust, Okl., 839 P.2d 179, 179-80 (1992); Hulsey v. Mid-America Preferred Ins. Co., Okl., 777 P.2d 932, 935 n. 5 (1989); Little v. Employer’s Casualty Co., 180 Okl. 628, 71 P.2d 687, 687-88 (1937).

6 . Oklahoma’s staffless district court judges customarily dispose of issues taken by them under advisement in the following manner: (1) the trial court notifies the parties of its ruling by a copy of a minute, by letter or by telephone; (2) the prevailing party's counsel then prepares the memorial; (3) opposing counsel approves the draft "as to form"; and (4) upon securing the judge's signature, the prevailing party’s counsel files the order in the court clerk’s office. This process— the same as that used in this case to finalize the February 13 memorial — is consistent with the prevailing long-time practice.

7 . The person who mails a copy of the order disposing of the issue taken under advisement is statutorily required to file a "Certificate of Mailing” in the court clerk's office. See 12 O.S.Supp. 1993 § 696.2(B), whose pertinent terms are:

"Where a matter is taken under advisement, the court shall state in the written judgment, decree or appealable order that the matter was taken under advisement. Promptly after the filing of such judgment, decree or ap-pealable order, the court shall cause file-stamped copies ... to be mailed to all parties who have entered an appearance or who have appeared in the action. The copies shall state the date of mailing. The person who mailed the copies ... shall file a Certificate of Mailing showing to whom the copies ... were mailed, the addresses to which they were mailed, and the date of mailing.” [Emphasis added.]

8 . See Vicky J. Maine Beier's [Hughes' counsel at trial] affidavit attached to Hughes' response to Bushert's motion to dismiss this appeal. The reference stands undenied by opposing counsel.

9 . The jury verdict in the case was received on October 18, 1994. A written memorial of the judgment on that verdict — capable of triggering appeal time by force of 12 O.S.Supp.1993 § 696.3 — was not filed until December 2, 1994. Although brought before the December 2 judgment was entered, Hughes' motion for a new trial, filed within ten days of the jury verdict’s reception, came timely to extend appeal time. See 12 O.S.Supp.1994 § 653(C), whose pertinent terms are:

"C. A motion for new trial filed after the announcement of the decision on all issues in the case but before the filing of the judgment or decree shall be deemed filed immediately after the filing of the judgment or decree.”

See also infra note 15 for a discussion of the effect post-trial motions have on appeal time.

10 . The pertinent provisions of 12 O.S.Supp.1993 § 696.2(A) are:

"... 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 appealable order, including, but not limited to, the time within which it is to be submitted to the court....” [Emphasis added.]

For the pertinent terms of 12 O.S.1991 § 696.2(B), see supra note 7.

11 . The trial judge may delegate this responsibility to a party’s counsel. For the pertinent terms of § 696.2(A), see supra note 10.

12 . See the terms of 12 O.S.Supp.1993 § 696.2(B), supra note 7.

13 . See the terms of 12 O.S.Supp.1993 § 696.2(B), supra note 7.

14 . See the terms of 12 O.S.Supp.1993 § 696.2(B), supra note 7.

15 . See 12 O.S.Supp.1993 § 990.2(C), whose pertinent terms provide:

"If a judgment, final decree or order has been taken under advisement, all times referred to in this section shall run from the date of mailing of a file-stamped copy ... to the appealing party, as indicated on the Certificate of Mailing_” [Emphasis added.]

See also the terms of 12 O.S.Supp.1993 § 990A(A), which provide that an appeal from an order memorializing a ruling on a matter taken under advisement must be commenced within 30 days of the date of mailing a file-stamped copy of the judgment or order — “as indicated on the Certificate of Mailing." [Emphasis added.]

16 . For individual components of the customary courthouse practice in use before the statute’s enactment, see supra note 6.

17 . For the statutory process for orders that decide issues taken under advisement, see section II, supra and note 7, supra.

When measured by the terms of § 696.2(B), the February 16 order is deficient. It does not contain the mandatory recitation that it memorializes a "matter that was taken under advisement.” Nor is there in the record a “Certificate of Mailing” evidencing when, where and to whom a copy of the February 16 order was mailed.

18 . Unlike in McCullough v. Safeway Stores, Inc., Okl., 626 P.2d 1332, 1334 (1981), before the appealable event occurred in this case, both Hughes and Bushert’s counsel were afforded notice by the nisi prius judge of the court’s denial of the motion for new trial — until then under his advisement.

19 . See supra note 15 for the pertinent statutory provisions.

20 . For the pertinent terms of 12 O.S.Supp.1993 § 696.2(A) & (B), see supra notes 10 and 7.

21 . See Okl.Const. art. 2 § 7, which states:

“No person shall be deprived of life, liberty, or property, without due process of law.”

See also Gibson v. Berryhill, 411 U.S. 564, 579, 93 S.Ct. 1689, 1698, 36 L.Ed.2d 488 (1973), where the Court states:

"It is sufficiently clear from our cases that those with substantial pecuniary interest in legal proceedings should not adjudicate these disputes. Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927). And Ward v. Village of Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972), indicates that the financial stake need not be as direct or positive as it appeared to be in Tumey. It has also come to be the prevailing view that '[mjost of the law concerning disqualification because of interest applies with equal force to ... administrative adjudicators.’ K. Davis, Administrative Law Text § 12.04, p. 250 (1972), and cases cited.” [Emphasis added.]

22 . See In re Vitale, 151 Vt. 580, 563 A.2d 613, 617 (1989); People ex rel. Clancy v. Superior Court of Riverside County, 39 Cal.3d 740, 218 Cal.Rptr. 24, 27, 705 P.2d 347, 350 (1986), which call in like terms for neutrality in the judicial process.

23 . Okl. Const., art. 7 § 4, provides in pertinent part:

" * * * The appellate and the original jurisdiction of the Supreme Court and all other appellate courts shall be invoked in the manner provided by law." [Emphasis mine.]

24 . The City of Oklahoma City v. State ex rel. Dept. of Labor. Okl., 66 OBJ 3184, 3187, - P.2d -, - (1995); Democratic Party of Oklahoma v. Estep, Okl., 652 P.2d 271, 277 n. 23 (1982); American Home Products Corporation v. Homsey, Okl., 361 P.2d 297, 301 (1961); Herrin v. Arnold, 183 Okl. 392, 82 P.2d 977, 982 (1938).

25 . This maxim means that "delegated authority cannot be re-delegated”. See Warner v. Martin, 11 How. 209, 223, 13 L.Ed. 667 (U.S.1850).

26 . For the pertinent terms of 12 O.S.Supp.1993 § 696.2(A) and (B), see supra notes 10 and 7.

27 . Courts must avoid statutory construction that would lead to an absurdity if this can be done without violating legislative intent. Jackson v. Mercy Health Center, Inc., Okl., 864 P.2d 839, 844 (1993); TXO Production v. Oklahoma Corp. Com'n, Okl., 829 P.2d 964, 969 (1992); City of Norman v. Liddell, Okl., 596 P.2d 879, 882 (1979).

28 . Earl v. Tulsa County Dist. Court, Okl., 606 P.2d 545, 548 (1980); Wilson v. Foster, Okl., 595 P.2d 1329, 1333 (1979); Neumann v. Tax Commission, Okl., 596 P.2d 530, 532 (1979).

29 . A judgment issues from the court and not from the attorneys or the court clerk. A trial judge has the duty to draft, sign and record a judgment within a reasonable time after its rendition or pronouncement. Manning v. State ex rel. Dept. of Public Safety, Okl., 876 P.2d 667, 672 (1994).

30 . The pertinent provision of 12 O.S.Supp.1993 § 696.2(B) is:

"[Tlhe court shall state in the ... appealable order that the matter was taken under advisement." [Emphasis added.]

31 . For a discussion of the elements of this statutory process, see supra section II.

32 . McCullough, supra note 18 at 1334-35.

33 . See supra notes 7 and 10 for the statutory standards governing orders which decide questions taken under advisement by the district court.