Kelsey v. Dollarsaver Food Warehouse of Durant

1994 OK 123, 885 P.2d 1353, 65 O.B.A.J. 3781, 1994 Okla. LEXIS 143, 1994 WL 613758

• Court: Supreme Court of Oklahoma
• Decided: November 8, 1994
• Docket: No. 81862
• Status: Published

Opinions

SUMMERS, Justice.

Plaintiff (Appellee) was awarded a substantial judgment pursuant to a jury’s verdict in Bryan County. Defendant (Appellant) filed a timely Motion for New Trial and Motion for Judgment Notwithstanding the Verdict. On May 18, 1993, the trial judge signed and caused to be filed a handwritten document entitled “Court Minute”, which stated “the Court finds that the motions should be overruled.”

On June 2, 1993, the judge signed and caused to be filed a typed Order as follows: “IT IS THEREFORE ORDERED, ADJUDGED & DECREED by the Court that Defendant’s Motion for New Trial and Motion for Judgment Notwithstanding the verdict be, and they are hereby, overruled.” Defendant commenced its appeal here on June 30,1993. Plaintiff moves to dismiss for untimeliness, claiming the earlier writing commenced the appellate clock. We deny the motion and allow the appeal to proceed.

Our decision does not rest on whether judge-signed “court minutes” prior to the legislative change of October 1, 1993 are or are not appealable orders.¹ That is because the writing of May 18 here under neither view contains language sufficient to make it an order of the court. A statement that the motions should be overruled is not the same as stating that the motions are overruled.

Webster describes “should” as a word used in an auxiliary function to express (1) condition (if he should leave his father his father would die); (2) propriety (this is as it should be); (3) futurity (he realized she should have to do most of her farm work before sunrise); or (4) what is probable or expected (they should be here before noon.) Merriam Webster’s Collegiate Dictionary, 1085 (10th ed. 1993). “Should” as used by the judge here places his statement in the subjunctive mood rather than in either the indicative (or declarative) mood or the imperative mood. See II G. Curme, A Grammar of the English Language, 391 (1980) and volume I of Dr. Curme’s work at 224.

The subjunctive mood is a verb form representing an act or state, not as fact, but as contingent or possible. Merriam Webster’s Collegiate Dictionary, supra at P. 1172. In Jackson v. State of Indiana, 273 Ind. 49, 402 N.E.2d 947 (1980) the defendant on appeal argued that the trial court erred in overruling his motion for a mistrial. The appellate court pointed out that the defendant had not made such a motion:

Defendant now contends that the trial court erred in refusing to grant his motion for mistrial. However, the record does not reflect that defense counsel made such a motion; rather, he merely stated, “Your Honor, at this point, I should move for a mistrial.” The use of the subjunctive, “should,” reflects a mere contingent or hypothetical action.

Id. 402 N.E.2d at 951 (emphasis added). The trial judge in our case, just as the defense counsel in Jackson, chose to set his statement in the subjunctive mood, here a representation that the motions were going to be, but had not yet been, overruled.

We also note that the trial court in its May 18 entry stated that “the Court finds that the motions should be overruled.” (emphasis ours) Our ruling today is consistent with Tillman v. Tillman, 199 Okla. 130, 184 P.2d 784 (1947). In that case the trial court had stated for the record certain findings which seemed indicative of the court’s opinion as to the extent of his jurisdiction. This Court said:

A judgment ... is distinct from findings of the court, [citation omitted] Findings and opinion of the court are never the judgment, but only expressions as to what the court considers its judgment should be.

Id. 184 P.2d at 785. (emphasis added).

The language used by the court on May 18 falls short of amounting to an order of the court. It announced that the motions should be overruled, but it did not overrule them. The later language used on June 2 declaring that the motions “be, and they are hereby, overruled”, did not express futurity or probability, but was an indicative, declarative statement of what the judge did with the motions. It overruled them. It was an order of the court, and it was timely appealed by Defendant’s petition in error filed June 30.

The motion to dismiss is denied.

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

1 . 12 O.S.1993 Supp. § 696.2(C), effective October 1, 1993, provides:

"The following shall not constitute a judgment, decree or appealable order: a minute entry....”

The issue was resolved in Manning v. State ex rel. Dept. of Public Safety, 876 P.2d 667 (Okl.1994), in which we held that such orders could be appealable if they fully disposed of a case, but made the ruling prospective.