Heirshberg v. Slater

1992 OK 84, 833 P.2d 269, 63 O.B.A.J. 1824, 1992 Okla. LEXIS 123, 1992 WL 139572

• Court: Supreme Court of Oklahoma
• Decided: June 23, 1992
• Docket: 73060
• Status: Published

Opinions

KAUGER, Justice.

Four issues are presented by the petition for certiorari: 1) whether, pursuant to 12 O.S.1981 § 655,¹ notice must be given by the service and return of summons on the party; 2) whether, under Rule 1.11, 12 O.S.Supp.1986, Ch. 15, App. 2,² an appellant may affect a timely appeal by filing a petition in error within thirty days after the trial court resolves a reserved attorney fee issue; 3) whether petitions for new trial filed pursuant to 12 O.S.1981 § 655 need be accompanied by an affidavit or contain specific allegations of due diligence; and 4) whether, pursuant to 12 O.S.1981 § 655, a party filing a petition for new trial on grounds of newly discovered evidence is entitled to a hearing prior to dismissal of the petition. We find that: 1) pursuant to 12 O.S.1981 § 655,³ service may be accomplished by the service and return of summons on the party or by notice to the attorney of record in the original cause;⁴ 2) under Rule 1.11, 12 O.S.Supp.1986, Ch. 15, App. 2, an appellant may affect a timely appeal by filing a petition in error within thirty days of the trial court’s denial of a motion for new trial on the merits of a judgment, or he/she may wait until after the trial court resolves a reserved attorney fee issue;⁵ 3) petitions for new trial filed pursuant to 12 O.S.1981 § 655 need not be accompanied by an affidavit or contain specific allegations of due diligence; and 4) pursuant to 12 O.S.1981 § 655, a party filing a petition for new trial on grounds of newly discovered evidence is entitled to a hearing prior to dismissal of the petition.

PACTS

On November 10, 1986, the jury returned a verdict in favor of the appellee, Harry Heirshberg (Heirshberg/lessee). Heirsh-berg also prevailed on a counterclaim against the appellant, Ben M. Slater (Slater/land owner). Slater filed a motion for new trial on November 13, 1986. Heirsh-berg filed an application for $15,450.00 in attorney fees on December 2, 1986. Reserving the attorney fee issue, the trial court denied Slater’s motion for new trial by letter dated September 9, 1987. Slater did not appeal the denial of a new trial.

The trial court awarded Heirshberg $12,-118.75 in attorneys fees on December 3, 1987. On December 2, 1988, Slater filed a petition for new trial on the basis of newly discovered evidence. Heirshberg filed a motion to dismiss the petition for new trial on January 23, 1989. Heirshberg asserted that the trial court lacked authority to grant the petition because of lack of service and because the petition was insufficient to support the award of a new trial.⁶ On March 21, 1989, the trial court sustained the motion to dismiss finding that the time for appeal ran from its order dismissing the first motion for new trial rather than from the date it ruled on the attorney fee issue.⁷ The Court of Appeals reversed finding that the date of the trial court’s decision on the attorney fee issue governed the time for appeal and that a petition for new trial filed pursuant to 12 O.S.1981 § 655 did not require verification or supporting affidavits. We granted cer-tiorari on November 5, 1991.

I.

PURSUANT TO 12 O.S.1981 § 655, SERVICE MAY BE ACCOMPLISHED BY THE SERVICE AND RETURN OF SUMMONS ON THE PARTY OR BY NOTICE TO THE ATTORNEY OF RECORD IN THE ORIGINAL CAUSE.

Heirshberg argues that to accomplish service, Slater was required to have him personally served with summons. Slater insists that service may be accomplished pursuant to 12 O.S.1981 § 655 by notice to the attorney of record in the original cause. We agree.

Title 12 O.S.1981 § 655 provides that notice may be accomplished by a service of summons on the party or by serving the attorney of record in the original case8 In Richardson v. Davis, 439 P.2d 949, 951 (Okla.1968), this Court considered the necessity of notice when a petition for new trial is filed. The Court found that a petition for new trial filed pursuant to 12 O.S.1961 § 655⁹ required a petition and issuance, service and return of summons, or constructive notice by substitute service or process, or notice to the attorney of record for the defendant in the original action. The language of the 1961 statute referring to notice is identical to that used in 12 O.S.1981 § 655. Here, no summons was issued to the party;¹⁰ but the attorney of record was mailed a copy of the petition for new trial, and he responded with a motion to dismiss. Notice was sufficient.

II.

UNDER RULE 1.11, 12 O.S.SUPP.1986, CH. 15, APP. 2, AN APPELLANT MAY AFFECT A TIMELY APPEAL BY FILING A PETITION IN ERROR WITHIN THIRTY DAYS OF THE TRIAL COURT’S DENIAL OF A MOTION FOR NEW TRIAL ON THE MERITS OF A JUDGMENT, OR HE/ SHE MAY WAIT UNTIL AFTER THE COURT RESOLVES THE ATTORNEY FEE ISSUE.

Heirshberg insists that Slater’s motion for new trial based on newly discovered evidence was untimely because it was filed more than a year after the trial court’s judgment on the substantive issues. Slater asserts that under Rule 1.11, 12 O.S.Supp. 1986, Ch. 15, App. 2,¹¹ an appellant may affect a timely appeal by filing a petition in error within thirty days after the court resolves a reserved attorney fee issue.

In Timmons Oil Co. v. Norman, 794 P.2d 400-01 (Okla.1990), we found that pursuant to Rule 1.11, 12 O.S.Supp.1986, Ch. 15, App. 2,¹² an appellant could affect a timely appeal by either filing a petition in error within thirty days of the trial court’s denial of a motion for new trial on the merits of a judgment, or he/she could wait until after the trial court resolved a reserved attorney fee issue and file a petition in error within thirty days of the ruling on the attorney fees.¹³

III.

PETITIONS FOR NEW TRIAL FILED PURSUANT TO 12 O.S.1981 § 655 NEED NOT BE ACCOMPANIED BY AN AFFIDAVIT OR CONTAIN SPECIFIC ALLEGATIONS OF DUE DILIGENCE.

Heirshberg argues that the motion for new trial was insufficient because it was not accompanied by a supporting affidavit and did not contain specific allegations of due diligence. Slater contends that a petition for new trial, unlike a motion for new trial, need not be accompanied by an affidavit and that there is no requirement to plead due diligence with particularity.

Although 12 O.S.1981 § 654¹⁴ contains a requirement that a motion for new trial must be accompanied by an affidavit, there is no such requirement in § 655 for a petition for new trial on the grounds of newly discovered evidence. Unless specifically required by rule or statute, pleadings need not be verified or accompanied by an affidavit.¹⁵ Section 655 provides that if the discovery of new evidence occurs more than ten days after judgment is rendered that an application is to be made by petition filed, in the original case, as in other cases. The plain language of § 655, requiring that petitions be filed as in other cases, refutes the dissent’s assertion that a petition for new trial is not governed by the pleading code. Title 12 O.S.Supp.1987 § 2011 provides in pertinent part:

“... Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit....”

Additionally, pleadings need contain only a short and plain statement of the claims showing that the pleader is entitled to relief.¹⁶ The pleading code does not require that due diligence in a petition for new trial on grounds of newly discovered evidence be stated with particularity.¹⁷

IV.

PURSUANT TO 12 O.S.1981 § 655, A PARTY FILING A PETITION FOR NEW TRIAL ON GROUNDS OF NEWLY DISCOVERED EVIDENCE IS ENTITLED TO A HEARING PRIOR TO DISMISSAL OF THE PETITION.

Heirshberg contends that the petition for new trial was procedurally insufficient to support the grant of a new trial.¹⁸ Slater argues that he was entitled to a hearing before the dismissal of his petition for new trial on grounds of newly discovered evidence.

Title 12 O.S.1981 § 655 provides in pertinent part:

“... The facts stated in the petition shall be considered as denied without answer, and the case shall be heard and summarily decided after the expiration of twenty (20) days from such service and not more than sixty (60) days after such service, and the witnesses shall be examined in open court, or their depositions taken as in other cases ...” (Emphasis supplied.)

The determination of legislative intent controls judicial statutory interpretation; however, it is unnecessary to apply rules of construction to discern Legislative intent if the will is clearly expressed.¹⁹ The use of “shall” by the Legislature is normally considered as a legislative mandate equivalent to the term “must,” requiring interpretation as a command.²⁰ The language and command of § 655 is clear and unambiguous. It provides that a petition for new trial “shall be heard.” Here, the trial court dismissed the petition for new trial before giving Slater an opportunity for a hearing.

Slater is entitled to a hearing on the petition for new trial. However, we express no opinion as to whether, after the hearing, the petition should be allowed.

CERTIORARI PREVIOUSLY GRANTED; COURT OF APPEALS OPINION VACATED; TRIAL COURT REVERSED.

HODGES, V.C.J., and HARGRAVE, SUMMERS and WATT, JJ. concur. ALMA WILSON, J., concurs in part II, dissents from the remainder. OPALA, C.J., and LAVENDER and SIMMS, JJ. dissent.

1 . Title 12 O.S.1981 § 655 provides:

“Where the grounds for a new trial could not with reasonable diligence have been discovered before but are discovered more than ten (10) days after the verdict or decision was rendered or made or report of the referee approved, or where the impossibility of preparing a record for an appeal, without fault of the complaining party, arose more than ten (10) days after the judgment was rendered, the application may be made by petition filed in the original case, as in other cases, within thirty (30) days after such discovery or occurrence; on which a summons shall issue, be returnable and served, or publication made, as in the beginning of civil actions, or such service may be made on the attorney of record in the original case. The facts stated in the petition shall be considered as denied without answer, and the case shall be heard and summarily decided after the expiration of twenty (20) days from such service and not more than sixty (60) days after such service, and the witnesses shall be examined in open court, or their depositions taken as in other cases; but no such petition shall be filed more than one (1) year after the final judgment was rendered.”

Although § 655 was amended effective January 1, 1991, its provisions remain substantially identical to the 1981 statute.

2 . Rule 1.11, 12 O.S.Supp.1986, Ch. 15, App. 2 provides in pertinent part:

"... (d) Appeal after Allowance of Attorney Fees

... (2) Where the trial court reserves ruling on the attorneys fee issue a party aggrieved by the trial court’s decision on other questions may obtain review of such other questions by filing timely petition in error after the trial court's ruling on the attorneys fee issue...."

See discussion, note 5, infra, on the effect of the amendment of Rule 1.11.

3 . Title 12 O.S.1981 § 655, see note 1, supra.

4 . Richardson v. Davis, 439 P.2d 949, 951 (Okla.1968); 12 O.S.1981 § 655, see note 1, supra; E. Morgan, "Delayed Attacks on Final Judgments — Part II,” 33 Okla.L.R. 738, 762 (1980). Heirshberg’s attorney received notice of the petition and filed a motion to dismiss the petition on January 23, 1989.

5 . Timmons Oil Co. v. Norman, 794 P.2d 400-01 (Okla.1990); C. Percival, "Procedure: Effect of Attorney Fees on Finality of Judgment — Amendment to Rule 1.11(c)," 40 Okla.L.R. 145, 148 (1987). Rule 1.11, 12 O.S.Supp.1986, Ch. 15, App. 2, see note 2, supra.

We express no opinion on the effect of Rule 1.12(c), 12 O.S.1991, Ch. 15, App. 2, on the holding of Timmons.

Rule 1.12, 12 O.S.1991, Ch. 15, App. 2 provides in pertinent part:

"... (c) Effect of Motion for New Trial and Other Post-Judgment Motions on Appeal Time. A post-judgment motion which seeks only a determination or award of costs, attorney’s fees or interest, no matter when filed, shall not delay or extend the running of time to appeal the judgment. 12 O.S.Supp.1990 §§ 1001, 1004....”

We note that the two statutes referenced in Rule 1.12 have been repealed. 1991 Okla.Sess.Laws, Ch. 251, § 17, Section 22. See, C. Adams & M. Medina, "Recent Developments in Oklahoma Civil Appellate Procedure," 26 Tul.L.R. 489, 502 (1991).

6 .Heirshberg’s arguments include assertions that: 1) the petition should have had an affidavit attached; 2) the petition should have named the witnesses who would be called at a hearing; and 3) the petition should have contained specific facts supporting the exercise of due diligence in attempting to uncover the evidence to be presented at a new trial.

7 . Timmons Oil Co. v. Norman, see note 5, supra, and accompanying discussion.

8 . Richardson v. Davis, 439 P.2d 949, 951 (Okla.1968); E. Morgan, "Delayed Attacks on Final Judgments — Part II,” 33 Okla.L.R. 738, 762 (1980). Notice was given in open court in Richardson. The record in Richardson contains no evidence of the issuance of summons on the motion for new trial. Heirshberg’s attorney received notice of the petition and filed a motion to dismiss the petition on January 23, 1989. Title 12 O.S.1981 § 655, see note 1, supra.

9 . Title 12 O.S.1961 § 655 provides in pertinent part;

"Where the grounds for a new trial could not with reasonable diligence have been discovered before, but are discovered after the term at which the verdict or decision was rendered or made or report of the referee approved, or where the impossibility of making a case-made, without fault of the complaining party, arose after said term, the application may be made by petition filed in the original case, as in other cases, not later than the second term after such discovery or occurrence; on which a summons shall issue, be returnable and served, or publication made, as in the beginning of civil actions, or such service may be made on the attorney of record in the original case_”

10 .Slater's response brief indicates that a summons was issued after objections were made concerning service. However, the record does not contain a copy of the summons. Slater is bound by the record presented for review. Snyder v. Smith Welding & Fabrication, 746 P.2d 168, 171 (Okla.1986).

11 . Rule 1.11, 12 O.S.Supp.1986, Ch. 15, App. 2, see note 2, supra.

12 . Id.

13 . C. Percival, "Procedure: Effect of Attorney Fees on Finality of Judgment — Amendment to Rule 1.11(c),” see note 5, supra; Rule 1.11, 12 O.S.Supp. 1986, Ch. 15, App. 2, see note 2, supra.

The dissent relies upon Austin v. Curry, 651 P.2d 1320-21 (Okla.1982) for the proposition that the only judgment in a cause is rendered at the time of the ruling on the merits. A final judgment pursuant to Austin is the judgment from which an appeal is taken. In Austin, the appellee tried to extend the time for filing a petition for new trial from the date this Court dismissed her appeal for lack of a record rather than from a ruling from the trial court on judgment. Here, Slater sought to file his petition for new trial based on a ruling recognized by Rule 1.11 — a rule promulgated by this Court — as an appeal-able judgment. Additionally, the dissent ignores this Court's ruling in Timmons Oil Co. v. Norman, see note 5, supra, in which we recognized that pursuant to Rule 1.11, 12 O.S.Supp. 1986, Ch. 15, App. 2, see note 2, supra, an appellant could affect a timely appeal by either filing a petition in error within thirty days of the trial court’s denial of a motion for new trial on the merits of a judgment, or he/she could wait until after the trial court resolved the reserved attorney fee issue and file a petition in error within thirty days of the trial court’s ruling on that issue.

We note that the rule pronounced today applies to the instant cause, but that Rule 1.11 no longer contains language specifically providing that an appeal may be taken either from a ruling on the merits or from a ruling on a reserved attorney fee issue. Rule 1.11, 12 O.S.1991, Ch. 15, App. 2 provides in pertinent part:

“(a) Computation of Time for Commencement of Appeal. An appeal from a district court may be commenced only by filing a petition in error within thirty (30) days of the date of judgment (including final orders or decrees). The date of judgment shall be the date it was filed with the district court clerk; provided, however,

if the district court clerk or a party is directed to mail a file stamped copy of the judgment to the parties and the court record fails to show that such was performed within five (5) days, exclusive of weekends and holidays, the petition in error may be filed within thirty (30) days after a copy of the judgment was mailed to the appellant by either the clerk or another party, whichever the court record shows was earlier in time...."

14 . Title 12 O.S.1981 § 654 provides:

"The application must be by motion, upon written grounds, filed at the time of making the motion. The causes enumerated in subdivisions two, three, seven, and nine of Section 5033, must be sustained by affidavits, showing their truth, and may be controverted by affidavits.”

Title 12 O.S.1981 § 651 provides in pertinent part:

"A new trial is a reexamination in the same court, of an issue of fact, or of law, either or both, after a verdict by a jury, the approval of the report of a referee, or a decision by the court. The former verdict, report or decision shall be vacated, and a new trial granted, on the application of the party aggrieved, for any of the following causes, affecting materially the substantial rights of such party:

... Seventh. Newly discovered evidence ...”

The requirement that a motion for new trial, as opposed to a petition for new trial, be accompanied with supporting documents may be premised on the fact that there is less need for the presentation of evidence when a petition for new trial is filed because evidence may be presented at the hearing, see discussion pp. 10-11, infra.

15 . Although some early cases indicate that a petition for new trial had to be verified or accompanied by an affidavit, those cases were promulgated prior to the enactment of the present procedural code. See, Wade v. Hope, 73 Okla. 289, 176 P. 402, 404 (1918); Dodson & Williams v. Parsons, 62 Okla. 298, 162 P. 1090-91 (1917). Despite the holding in these pre-code cases, at least one scholar recognized the difference between a petition and motion for new trial and suggested to practitioners that petitions for new trial need not be verified. W. Burdick, Ph.D., LL.B., New Trials & Appeals in Kansas & Oklahoma, § 117, p. 93 (Pipes-Reed 1907).

16 . Title 12 O.S.Supp.1987 § 2008 provides in pertinent part:

"... A. CLAIMS FOR RELIEF. A pleading which sets forth a claim for relief ... shall contain:

1. A short and plain statement of the claim showing that the pleader is entitled to relief

17 .Title 12 O.S.Supp.1987 § 2009 provides:

"PLEADING SPECIAL MATTERS.

A.CAPACITY. It is not necessary to aver the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party. When a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, he shall do so by negative averment, which shall include such supporting particulars as are peculiarly within the pleader's knowledge, and he shall have the burden of proof on that issue.

B. FRAUD, MISTAKE, CONDITION OF THE MIND. In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.

C. CONDITIONS PRECEDENT. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.

D. OFFICIAL DOCUMENT OR ACT. In pleading an official document or official act it is sufficient to aver that the document was issued or the act done in compliance with law.

E. JUDGMENT. In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it.

F. TIME AND PLACE. For the purpose of testing the sufficiency of a pleading, aver-ments of time and place are material and shall be considered like all other averments of material matter.

G. SPECIAL DAMAGE. When items of special damage are claimed, their nature shall be specifically stated. In actions where exemplary or punitive damages are sought, the petition shall not state a dollar amount for damages sought to be recovered but shall state whether the amount of damages sought to be recovered is in excess of or not in excess of Ten Thousand Dollars ($10,000.00)."

18 . See Heirshberg’s assertions, note 6, supra.

19 . Fuller v. Odom, 741 P.2d 449, 452 (Okla.1987).

20 . Id; McDonald's v. Groves, 652 P.2d 281-82 (Okla.1982).