Keel v. Wright

1995 OK 18, 890 P.2d 1351, 66 O.B.A.J. 868, 1995 Okla. LEXIS 31, 1995 WL 90434

• Court: Supreme Court of Oklahoma
• Decided: March 7, 1995
• Docket: 81619
• Status: Published

Opinions

SUMMERS, Justice.

Keel brought an action in the District Court, alleging breach of contract. He dismissed as to two Defendants, but then obtained a default judgment against the remaining Defendant, Larry Wright. Wright appealed.¹ Keel moved to dismiss the appeal. We effectively grant the motion in part, and will consider only that part of the appeal which was timely brought, taking no cognizance of that part which reached this Court too late.

Defendant Wright represented himself in the trial court and filed an answer to the petition. When he failed to appear at the pre-trial conference default judgment was pronounced against him, and a hearing was set for evidence as to the amount of damages. Wright then obtained counsel and moved to vacate the default judgment. On March 31, 1993 the District Court set the amount of the judgment and held Keel entitled to an attorney’s fee, with that amount to be determined at a later hearing.

The Court’s ruling of March 31, 1993 appears as a “court minute” signed by the judge and filed. The minute directed Plaintiff to prepare the journal entry. A journal entry of judgment was filed on April 7, 1993.

The hearing on the amount of attorney’s fees occurred on April 21, 1993, and a court minute was filed awarding Plaintiff an attorney’s fee of $1,750. A journal entry for the award of attorney’s fees was filed on June 16, 1993. Wright mailed a petition in error to the Clerk of this Court on May 20, 1993, and an amended petition in error was filed on June 30, 1993.

On appeal Defendant’s counsel filed an affidavit stating that he first saw a copy of the journal entry two days prior to the hearing on attorney’s fees. Thus, Defendant/Appellant had notice of the journal entry on April 19, 1993. The journal entry does not show approval by counsel.

We recently explained that prior to October 1, 1993 a judge-signed minute adjudicating a controversy could be an appealable order. Manning v. State ex rel. Dept, of Public Safety, 876 P.2d 667 (Okla.1994). See also Mansell v. City of Lawton, 877 P.2d 1120 (Okla.1994) and the discussion of adjudicatory minute entries after October 1, 1993. In Manning v. State ex rel. Dept, of Public Safety, supra, we also explained that the holding therein would operate prospectively from the date of the opinion. The date of Manning is June 7, 1994, and a year after the District Court’s minutes in this case. Thus, Manning’s prospectivity prohibits us from using the minute order as a triggering event for calculating the time to commence an appeal.

The journal entry of judgment was filed April 7, 1993. We have held that when a matter is taken under advisement and the judgment later filed, the time to commence the appeal begins from when notice of that judgment is mailed to the parties.² This is so to give parties notice of the event that commences the time to appeal.

The record in this case shows no mailing of the journal entry to Wright. Nor does the journal entry show Wright’s approval in any way. The affidavit of Wright’s counsel states that he first obtained a copy of the journal entry of judgment “two days prior to the [hjearing on [ajttorney fees”, and the hearing was April 21, 1993. Two days prior to the hearing, not counting the day of the hearing, is April 19, 1993. See 12 O.S.1991 § 2006. The petition in error attacking that judgment was deemed filed in this Court on May 20, 1993. Thus if we use the date of notice established by counsel’s affidavit, May 20 is thirty-one days after April 19, 1993. The petition in error, even under Wright’s counsel’s theory, was one day late to attack the judgment. 12 O.S.1991 § 990A.³

Defendant has made two other arguments. The first is that the appeal should be considered timely due to his reliance upon Rule 1.11(a) of the Rules of Appellate Procedure in Civil Cases, 12 O.S.1991 Ch. 15, App. 2. This Rule no longer corresponds to the present statutory authority for fifing appeals. However, even if Appellant relied upon its now outdated provisions, he would still be untimely. The outdated language commenced the time to appeal from the date of a judgment. The date of the judgment was the date it was filed in the trial court, or from the date of mailing if a party or the clerk was directed to mail a file stamped copy to the opposing counsel. The relevant minute entry contains no direction for mailing. Thus, even under this outdated rule the time to appeal would have run from the date the judgment was filed, April 7, 1993, apart from the notice issue.

Defendant argues in the alternative that no judgment occurred until the order granting attorney’s fees was filed. The minute order of March 31, 1993 made a finding that Plaintiff was entitled to attorney’s fees, but did not determine the amount, and stated that a hearing on the fee would be set at a later date. The subsequent journal entry of April 7, 1993 states that it awarded an attorney’s fee, but set no amount. The amount was set at a later hearing.

In Heirshberg v. Slater, 833 P.2d 269 (Okla.1992) we observed that at one time an appellant could delay fifing an appeal until after a post-judgment order adjudicating reserved attorney’s fees. Id., 833 P.2d at 271 n. 5. This was allowed by Rule 1.11(d) of the Rules of Appellate Procedure in Civil Cases, 12 O.S.Supp.1986 Ch. 15, App. 2. Application of Rule 1.11 as suggested by Defendant required the trial court to expressly reserve the issue of attorney’s fees. Timmons Oil Co., Inc. v. Norman, 794 P.2d 400 (Okla. 1990). In this case that is exactly what the trial court did. However, in Heirshberg we noted that this pre-1991 rule was no longer in effect, and that new Rule 1.11 no longer allowed such practice after the rule was changed in 1991. Id., 833 P.2d at 271 n. 5, 273 n. 13.

The appellate rules were changed effective January 1, 1991. New Rule 1.12 is still on the books. It is based upon two statutes, now repealed, and states that a post-judgment motion seeking 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. 1991, Ch. 15, App. 2 (emphasis added). Thus, when the judgment was filed in this case there was neither a rule nor statute that would allow waiting until after a decision on a reserved attorney’s fee claim to appeal both the underlying judgment and the post-judgment order on attorney’s fees.

Effective October 1,1993 we have a statute that states in part:

D. Costs, Attorney’s Fees and Interest. The filing of a motion for costs, attorney’s fees or interest shall not extend or affect the time to appeal.

12 O.S.Supp.1993 § 990.2(D).

This statute was not in effect at the time of the judgment here and does not govern this ease. However, the section clearly tells us that after October 1, 1993 a motion for costs, attorney’s fees, or interest as well as any decision on such motions shall not affect the time to appeal. ‘ We decline to readopt a rule similar to the pre-1991 Rule 1.11(d) in light of current legislation contrary to such a rule.

The journal entry of judgment filed April 7, 1993 set no counsel fees, although the plaintiff had requested an attorney fee in his petition. The final question is this: does that mean that the April 7th adjudication lacked appealability as being determinative of fewer than all claims presented? See 12 O.S.1991 § 1006, now renumbered at 12 O.S.Supp.1994 § 994(A).⁴ We conclude it does not.

The fee ultimately allowed in the order filed June 16, 1993 was based on prevailing party status under 12 O.S.1991 § 936. Under that section the fee is “to be taxed and collected as costs.” Plaintiffs right to the fee did not come into being until prevailing party status was created upon adjudication of the underlying cause of action. Thus we do not view the attorney’s fee prayer as part of plaintiffs cause of action for breach of contract. The April 7th journal entry fully resolved plaintiffs cause of action, and does not run afoul of § 1006, now § 994(A), for the purposes of appealability. The pendency of a decision on prevailing party attorney’s fees does not extend the time to appeal from the underlying judgment.

To sum up, the appeal from the April 7th judgment came too late to confer jurisdiction upon this Court. However, the journal entry for the award of attorney’s fees was filed on June 16, 1993, and an amended petition in error was filed on June 30, 1993. The only matter properly before the Court at this time is the appeal from the attorney’s fee award, and the matter shall thus proceed.

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

1 . The style of this proceeding has been changed sua sponte to correct a misspelled name in the judgment on appeal, and to conform to 20 O.S. 1991 § 3002.

2 . A.T. & T. v. Land, 819 P.2d 716, 718 (Okla. 1991); Matter of Estate of Pope, 808 P.2d 640, 644 (Okla. 1990); Grant Square Bank & Trust v. Werner, 782 P.2d 109, 111 (Okla. 1989); McCrary v. McCrary, 764 P.2d 522, 526-527 (Okla.1988); State ex rel. Dept, of Corrections v. Johnson, 682 P.2d 750, 752-753 (Okla.1984); McCullough v. Safeway Stores, Inc., 626 P.2d 1332, 1334 (Okla. 1981). This case does not involve the statutory rule effective October 1, 1993 for a matter taken under advisement where appeal time commences on the date indicated on a Certificate of Mailing. 12 O.S.Supp.1993 § 990A.

3 . Appellant’s petition in error is thus untimely even if a McCullough v. Safeway theory is used that requires notice for matters taken under advisement. Application of this theory to this case would presume that the theory of notice applies to a case not under advisement when an appellant claims that he or she did not have notice of the date the judgment was filed. In this case we do not determine whether such theory applies, and we do not determine the effect of counsel’s affidavit of notice, because it could not affect the outcome.

4 . 12 O.S.Supp.1994 § 994(A) is as follows:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the preparation and filing of a final judgment or decree as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the filing of a final judgment or decree. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the final judgment or decree adjudicating all the claims and the rights and liabilities of all the parties is filed with the court clerk.