Marshall v. OK Rental & Leasing, Inc.

1994 OK 87, 879 P.2d 132, 68 O.B.A.J. 988, 1994 Okla. LEXIS 96, 1994 WL 329666

• Court: Supreme Court of Oklahoma
• Decided: July 12, 1994
• Docket: 82232
• Status: Published

Opinions

SUMMERS, Justice.

In question is the timeliness of plaintiffs appeal.¹ If plaintiffs appeal time began to run from the filing of an order sheet in the District Court of Tulsa County, her appeal reached us too late. If, however, her appeal time started with the filing of the subsequent journal entry of judgment, she got it here in time. We conclude the appeal is timely.

Plaintiff brought an action against her employer based upon an allegation that she was wrongfully constructively discharged from employment. Defendant filed a motion for summary judgment. On July 13, 1993 the District Judge sustained Defendant’s motion, and caused to be filed an instrument commonly called an order sheet in courthouse or appellate parlance. Defendant moves to dismiss the appeal, arguing that this instrument is a filed judgment, and started the time to bring an appeal. Plaintiff argues that a later-filed journal entry of judgment was the judgment for the purpose of calculating the time' to appeal.

A litigant’s right to appeal is governed by the law in effect when the appeal-able event takes place. Patmon v. Block, 851 P.2d 539, 542 (Okla.1993). On July 13, 1993, and in fact since June 1,1991, the time to commence an appeal began, and still begins, to run when the judgment is filed: “An appeal to the Supreme Court may be commenced by filing a petition in error with the Clerk of the Supreme Court within thirty (30) days from the date the final order or judgment is filed.” 12 O.S.1991 § 990A. Is this order sheet a filed judgment? We conclude it is not.

The order sheet, insofar as applicable to' our case, takes the following form:

IN THE DISTRICT COURT IN AND FOR TULSA COUNTY

STATE OF OKLAHOMA

On this 13th day of July, 1993, the following matters in the designated cases came on for decision, pursuant to Rule 4 of the Supreme Court Rules for the District Courts. The Clerk of the Court is directed to notify counsel of record of the indicated decisions by mailing a copy of this Order to them and filing a copy of this Order in each case.

(signature of Judge Gail Harris) GAIL HARRIS, DISTRICT JUDGE

... CJ-92-3426 JODY MARSHALL V. OK RENTAL & LEASING, INC.

Defendant’s Motion for Summary Judgment is sustained pursuant to Rule 13 as there are no material facts in controversy. Undisputed facts insufficient to support any claim of plaintiff for relief. Notice by mail to William G. Bernhardt & Thomas Bright.

The same page of the order sheet contains two other entries in two other cases. One entry states the court’s decision on its jurisdiction to adjudicate attorney fees and sanctions, and the other resolves a discovery dispute. The sheet then lists the names and addresses of all counsel of record in the cases, followed by a certificate of mailing by a deputy court clerk. The signature of the judge only appears after the material at the top of the page directing the clerk to notify counsel.

In construing an order or a judgment we first examine the clear and unambiguous language of the instrument, since such language is controlling. Lemons v. Lemons, 205 Okl. 485, 238 P.2d 790, 792 (1951). The clear language of the order sheet shows that it contains a judge-signed order to the clerk to notify counsel of certain action taken by the court and to file a copy in each case. The action of the court taken in this ease was sustaining the motion for summary judgment. However, this judicial act of sustaining the motion does not appear as a judge-signed memorial on the order sheet.

An appealable order under former 12 O.S.1991 § 32.3, in effect on July 13,1993, must contain the signature of the judge.² In Martin v. Liberty Nat. Bank & Trust, 839 P.2d 179 (Okla.1992) we explained that a minute initialed by a trial judge did not satisfy this requirement. The typed material following the judge’s signature here appears on its face to be a series of minute entries prepared by a clerk. A minute drafted by a clerk is not an order or judgment appearing of record.³ The minute entry reflecting that the Motion for Summary Judgment was sustained was not followed by a signature of the judge. Thus, the order sheet of July 13, 1993 is not the filed judgment required for the commencement of appeal time. 12 O.S.1991 §§ 32.3, 990A.⁴

A journal entry of judgment was later signed and filed in the District Court on August 4, 1993. The petition in error was filed in this Court on September 7, 1993. However, the petition was mailed to us on September 2, 1993 by U.S. certified mail, return receipt requested. September 2,1993 is therefore deemed the filing date of the petition in error. 12 O.S.1991 § 990A(B); Rule 1.15, Rules of Civil Appellate Procedure. The petition in error was timely filed, the motion to dismiss is denied, and the appeal shall proceed.

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

1 . The spelling of Plaintiff’s name in the caption corresponds to the Journal Entry of Judgment. Plaintiff has noted in one filing on appeal that her name is Jodi Marshall.

2 . Section 32.3 was repealed by Laws 1993, c. 351, § 29, eff. Oct. 1, 1993. 12 O.S.Supp.1993 § 696.3, effective October 1, 1993 requires judgments and appealable orders to be in writing and signed by the court. This event of July 13, 1993 predates the changes in procedure effective October 1, 1993, and these changes are not applicable to this controversy. Patmon v. Block, supra.

3 . Elliott v. City of Guthrie, 725 P.2d 861, 863 (Okla.1986); Lillard v. Meisberger, 113 Okl. 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).

4 . 12 O.S.1993 Supp. § 696.2(C) (effective Oct. 1, 1993 and thus not applicable to this case) provides:

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