McMillian v. Holcomb

1995 OK 117, 907 P.2d 1034, 66 O.B.A.J. 3471, 1995 Okla. LEXIS 137, 1995 WL 635409

• Court: Supreme Court of Oklahoma
• Decided: October 31, 1995
• Docket: 82999
• Status: Published

Opinions

SUMMERS, Justice.

Plaintiff landowners, claiming to be landlocked and in need of water service, sued Defendant landowners to condemn an easement of necessity. The trial court ruled for Plaintiffs. A “Motion to Reconsider” was denied, and Defendants appeal. Plaintiffs/appellees move to dismiss the appeal on several grounds, causing the briefing schedule to be suspended. We defer one dismissal issue to merits consideration, deny the others, and allow the appeal to proceed.

This case affords an opportunity to once again construe some of the statutory reforms in appellate procedure that took effect October 1, 1998. The chronology of events is this:

December 1, 1993 — Trial court caused Order to be filed finding no proper objection to Commissioners’ Report and rendering judgment for plaintiffs. Plaintiffs’ attorney was directed to prepare journal entry.

Monday, December 13, 1993 — Defendants filed a “Motion to Reconsider”.

December 16, 1993 — Journal Entry of Judgment filed.

January 5,1994 — Trial court overruled Defendants’ motion by order sheet entry.

February 4,1994 — Defendant filed petition in error.

March 1, 1994 — Order overruling Defendants’ motion filed.

March 7, 1994 — Defendant filed amended petition in error.

I. APPEALABILITY OF THE DECEMBER 1, 1993 ORDER OF THE TRIAL COURT.

After the case was filed a Commissioners’ Report was returned. Defendants filed a responsive instrument,.but the trial court on December 1, 1993 signed and caused to be filed an Order holding that no proper objection to the Commissioner’s Report had been filed, and granted judgment to the plaintiffs. We have held that an order adjudicating a right to condemn is appealable pursuant to 12 O.S.1991 § 952(b)(1) as a final order.¹ The first question, then, is whether the December 1 Order commenced the appellate clock.²

Effective October 1, 1993 a judgment, decree or appealable order must be in a certain form for the purpose of commencing the time to appeal. Mansell v. City of Lawton, 877 P.2d 1120 (Okla.1994); 12 O.S.Supp.1993 § 696.3. Orders expressed in certain forms were determined by the legislature to not start the appellate clock. Section 696.2 of Title 12 states in part:

The following shall not constitute a judgment, decree or appealable order: A minute entry; verdict; informal statement of the proceedings and relief awarded, including, but not limited to, a letter to a party or parties indicating the ruling or instructions for preparing the judgment, decree or appealable order.

12 O.S.Supp.1993 § 696.2(C), (emphasis added).

This statute tells us that orders with “instructions for preparing the judgment, decree or appealable order” fall within the category of orders not constituting a judgment for the purpose of commencing time to appeal. The order of December 1,1993 specifically stated that Plaintiffs’ attorney was to “prepare Journal Entry” of the court’s order.

Section 696.2 states that the trial court “may direct counsel for any party to the action to prepare a draft for the signature of the court, -” 12 O.S.Supp.1993 § 696.2(A). An editorial commentary to this section states that “It is anticipated the past practice of assigning the preparation of the journal entry to the attorney for the prevailing party will continue to be followed.” 12 O.S.A. § 696.2 (West 1994), (Oklahoma Comments). However, it was anticipated that the term “journal entry” would be replaced with “judgment” in a direction to prepare the judgment for signature. Id.

We conclude that the combined effect of § 696.2(A) & (C) is that an order directing the prevailing party to prepare a journal entry or judgment of the court’s decision makes that order containing the direction a non-appealable event. The appellate clock starts when the subsequent judgment (or journal entry) is filed with the clerk of the trial court, or mailed to the parties if the matter was taken under advisement. 12 O.S.Supp.1993 § 990A(A). The answer to our first question, then, is that the December 1 Order did not commence appeal time. The December 16 Journal Entry did.

II. EFFECT OF THE “MOTION TO RECONSIDER.”

On December 13, 1993 Defendants filed a “Motion to Reconsider And to Vacate” the December 1st order.³ A timely filed motion for new trial extends the time to appeal; an untimely one does not. 12 O.S.Supp.1993 §§ 653, 990.2(B); Brown v. Green Country Softball Association, 884 P.2d 851 (Okla.1994). December 13, 1993 fell on a Monday, so it was within the 10 days allowed for filing of motions for new trial in 12 O.S. 1991 § 653. But the, version of § 653 in effect at the time (it had taken effect only October 1,1993) required that the motion “be filed within ten (10) days after the judgment, decree or appealable order prepared in conformance with Section 10 [§ 696.3] of this act has been filed_” (emphasis added).⁴ And we have concluded that the Order of December 1 was not appealable due to inclusion of the instructions to prepare Journal Entry.

The Journal Entry was not filed until December 16th, so what we have (treating Defendants’ December 13th motion the same as we treat one for a new trial) is a premature motion for new trial.⁵ We recently explained the effect of premature motions for new trial and the recent legislative change to address the problem. Brown v. Green Country Softball Association, supra. We explained that a premature motion had the same effect as one filed too late. In Brown we noted the recent amendment in 12 O.S.Supp.1994 § 653 that made a premature motion for new trial filed after the pronouncement of the judgment a timely filed motion.

In Brown we also noted that § 653 prior to October 1, 1993 required a motion for new trial to be made within 10 days of when the decision was pronounced, not filed. That motion, just as this one, would have been timely to toll the appellate clock prior to the statutory changes of October 1, 1993. We therefore made our holding prospective from the date of the mandate. Mandate was issued in Brown on December 8,1994, approximately one year after this motion was filed in the trial court. We conclude that, as in Brown, this premature motion would have been ineffective to extend appeal time, but because Brown is applied prospectively Defendants’ motion of December 13th extended their time to appeal. See P & H Oil Field Service, Inc. v. Spectra Energy Corp., 823 P.2d 365 (Okla.1991),

III. THE APPEALABLE EVENT.

The final question on timeliness, then, is to determine the date on which the trial court overruled Defendants’ “Motion to Reconsider” in such form as to commence the appellate clock. On January 5,1994 she overruled Defendants’ motion and caused to be filed what we have referred to as a Tulsa County Order Sheet. Aven v. Reeh, 878 P.2d 1069 (Okla.1994); Marshall v. OK Rental & Leasing, Inc., 879 P.2d 132 (Okla.1994). We have held that these are but minute entries and are not appealable under § 696.2. Thus the filing of the January 5th order sheet was not an appealable event. Aven, 878 P.2d at 1070; Marshall, 879 P.2d at 134.

The trial court ultimately memorialized the decision of January 5, 1994 by an order signed on February 28, 1994 and filed on March 1, 1994. That order of March 1, 1994 meets the requirements for the form of an appealable order listed in 12 O.S.Supp. 1993 § 696.3, and is the appealable event.

Although the first petition in error filed February 4, 1994 was premature, a supplemental petition in error may be filed to cure a premature petition in error when the appeal has not yet been dismissed as premature. 12 O.S.Sup.1993 § 990A(F). Matter of Estate of Robinson, 885 P.2d 1334, 1336 (Okla.1994). This appeal was thus timely commenced by the amended petition in error filed March 7, 1994.

IV. ACCEPTANCE OF THE AWARD.

Plaintiffs also assert that the appeal should be dismissed because Defendants’ cashed the Court Clerk’s check representing the amount of the commissioners’ award granted by the order of the trial court. The order of December 16, 1993 is titled “Order Confirming Report of Commissioners, Vesting Title And For Disbursement of Funds.” An examination of that order shows a finding that the Defendants are entitled to the funds awarded by the commissioners. Defendant landowners counter with an argument that: (1) The Court Clerk refused to hold the funds after the motion to reconsider was adjudicated; (2) The Court Clerk mailed the check to counsel for Defendants; (3) The check was cashed by their counsel and the proceeds placed into counsel’s client trust account; (4) Defendants have obtained no benefit from the funds; (5) Defendants have no objection to paying the funds into any court fund directed by the Supreme Court.

A condemnee cannot challenge the necessity of the taking after acceptance of the award when the condemnee does not appeal.⁶ But this limitation on bringing subsequent proceedings does not bar ongoing proceedings after payment of the award. In Dyco Petroleum Corp. v. Smith, 771 P.2d 1006 (Okla.1989) we stated:

The clearly established policy in Oklahoma in relation to condemnation actions is to allow the condemnee to be compensated for the taking of his interest as soon as possible after that taking has occurred. To that end the Legislature, at 66 O.S.1981 § 64, has provided that the condemnee is immediately entitled to the receipt of the compensation awarded without prejudice to the right of either party to prosecute further proceedings regarding the award.

Id., 771 P.2d at 1009.

Thus after the award has been made the proceeding may be further prosecuted and defended regarding the award. The further proceedings not prohibited are those concerning “the sufficiency or insufficiency of said compensation.” 66 O.S.1991 § 54. The appeal today challenges the necessity of the taking and raises notice issues. But this appeal does not challenge the sufficiency of the award. Dyco does not support a landowner appealing an order adjudicating the necessity of the taking while accepting the award.

A Maryland court has explained that most courts regard as inconsistent an appeal on the necessity of the taking when the landowner has accepted payment. Vallario v. State Roads Commission, 290 Md. 2, 426 A.2d 1384, 1385 (1981).⁷ That court explained that this was an application of “the general rule that ‘an appellant cannot take the inconsistent position of accepting the benefits of a judgment and then challenge its validity on appeal.’” Id. We have recognized this general rule. Associated Classroom Teachers of Okla. City, Inc. v. Board of Education of Ind. School Dist., etc., 576 P.2d 1157 (Okla.1978). However, this order appealed is unlike an ordinary money judgment, in that it grants benefits to both sides to the dispute; the Plaintiff condemnors may take possession of the land condemned and the Defendant landowners are entitled to payment.

Plaintiffs argue that the landowners have accepted the benefits of the judgment and cannot challenge the necessity of the taking. Defendants argue that they made no application to the court for disbursing the funds. They state that “After the final order, the District Court Clerk would no longer hold the funds and sent the check to Appellants.” They state that the check was cashed with the funds placed in counsel’s trust account until resolution of the appeal, that they are receiving no benefit from the funds, and that the funds are available for deposit with either this Court or the District Court.

We decline to penalize Defendants for depositing the Court Clerk’s check when they did not make an application for payment, nor did the Plaintiffs move that the funds stay with the Court Clerk. See Grand River Dam Authority v. Eaton, 803 P.2d 705, 706-707 (Okla.1990) where we discussed satisfaction of a judgment that was not for the purpose of settling and compromising the matter. However, we also recognize that the appellate doctrine of barring an appeal because of accepting the benefits of a judgment is a type of estoppel born in equity. Associated Classroom Teachers of Okla. City, Inc. v. Board of Education of Ind. School Dist., etc., 576 P.2d at 1161-1162. See Turner v. Kirkwood, 168 Okla. 80, 31 P.2d 935, 943 (1934). Thus, if Plaintiff condemnors do not seek to enforce a right of possession to the condemned land during appeal they may make an application to the District Court to require the Defendant landowners to pay to the District Court Clerk the amount disbursed, for the Clerk to hold during the appeal.

Y. OTHER DISMISSAL CLAIMS.

Plaintiffs request dismissal of the appeal because Defendants have not filed their brief. The failure to file a brief is not a ground for requesting a dismissal when a motion to dismiss has been filed in the appeal. The Rule states:

When a motion to dismiss appeal is filed, the time prescribed for briefing shall remain suspended and shall not recommence to run until disposition of the motion is effected by this court.

Rules of Appellate Procedure in Civil Cases, 12 O.S.1991 Ch. 15, App. 2, Rule 1.28(c). We dispose of the motions to dismiss by our ruling today, and this opinion recommences the time to brief the appeal.

Plaintiffs also request dismissal arguing that Defendants did not file a proper objection to the Report of Commissioners, and that the trial court determined that Defendants did not properly preserve this issue. The trial court determined that the filing by Defendants was something other than an objection to the Commissioners’ Report, and did not preserve an objection to the Report. The correctness of this determination is the major issue in the appeal. The parties have not yet filed their briefs in this Court on the subject.

Plaintiffs cite Board of County Commissioners of Creek County v. Casteel, 522 P.2d 608 (1974), and argue that a timely filed objection to a Commissioners’ Report is a jurisdictional predicate for an appeal from an order stating that no objection was filed. That statement is incorrect. The judicial power possessed by a District Court includes jurisdiction to decide what is properly before it for adjudication, and an appeal will lie from the determination in the manner provided by law for condemnation appeals.⁸ Whether the instrument filed by Defendants should or should not be construed as an objection to the Report of Commissioners is a question presently within the appellate cognizance of the Court. We decline to answer that question on a motion to dismiss the appeal, and it remains for determination in the regular course of the appeal.

The other motions to dismiss are denied and the appeal shall proceed.

KAUGER, Y.C.J., and HODGES, LAVENDER and WATT, JJ., concur. OPALA, J., concurs in result. SIMMS and HARGRAVE, JJ., dissent. ALMA WILSON, C.J., not participating.

1 . Jerry Scott Drilling Co., Inc. v. Scott, 781 P.2d 826, 828 n. 3 (Okla.1989); Oklahoma Gas & Electric Company v. Chez, 527 P.2d 165, 167 (Okla.1974); Watchorn Basin Assn. v. Oklahoma Gas & Electric Co., 525 P.2d 1357, 1359 (Okla.1974); Delhi Gas Pipeline Corp. v. Swanson, 520 P.2d 670, 671 (Okla.1974); Town of Ames v. Wybrant, 203 Okla. 307, 220 P.2d 693 (1950); Wrightsman v. Southwestern Natural Gas Co., 173 Okla. 75, 46 P.2d 925, 932 (1935).

2 . See 12 O.S.1991 § 990A(A).

3 . A "motion to reconsider” does not exist in the nomenclature of Oklahoma’s statutory pleading scheme. A "motion to reconsider” may be judicially considered as a 12 O.S. § 651 motion for new trial or a term-time motion to vacate pursuant to 12 O.S. § 1031.1. Schepp v. Hess, 770 P.2d 34, 36 (Okla.1989); Pierson v. Canupp, 754 P.2d 548 (Okla.1988); Huff v. Huff, 687 P.2d 130 (Okla.1984). At one time the former could extend the time to prosecute an appeal while the latter did not. Schepp at 36 n. 2.

4 .Note that the words "within 10 days after” in § 653A. were replaced in 1994 with the words “not later than 10 days after.” (Emphasis added).

5 . The parties treated the motion as one filed pursuant to 12 O.S.Supp.1993 § 1031.1. Like a motion for new trial the date for filing a § 1031.1 motion commences on the date the appealable order is filed unless the matter is taken under advisement. 12 O.S.Supp.1993 §§ 653, 1031.1. Because of our holding making this motion timely it does not matter, for the purpose of calculating time to commence an appeal, whether this motion is labeled as one for new trial or one pursuant to § 1031.1. The motion is a post-trial motion filed within 10 days of the date of the filing of the order, and would thus toll the appellate clock. 12 O.S.Supp.1993 § 990.2(A). This result is consistent with the recent statutory change for premature § 1031.1 motions. 12 O.S.Supp.1994 § 1031.1.

6 . Oklahoma City v. Cooper, 420 P.2d 508, 512 (Okla.1966), cert. denied, 385 U.S. 898, 87 S.Ct. 203, 17 L.Ed.2d 131 (1966), (1960 proceeding could not be used to vacate 1941 proceeding when condemnee accepted award); Delhi Gas Pipeline Corp. v. Swanson, 520 P.2d 670, 671 (Okla.1974), (landowners waiving objections to tire necessity of the taking could not raise issue in subsequent trespass action); Talkington v. City of Chickasha, 537 P.2d 419, 421 (Okla.1975), (1957 condemnation proceeding could not be attacked in proceeding brought in 1971 to challenge the necessity of the taking); Allen v. Transok Pipe Line Company, 552 P.2d 375, 382 (Okla.1976), (landowner was estopped from bringing subsequent trespass suit).

7 . In Vallario the court determined as a matter of statutory construction when a landowner has lost possession of property he or she may withdraw the funds paid into the court notwithstanding an appeal challenging the necessity of the taking. The Maryland statute provided that the landowner was entitled to receive any amount paid into the court for his benefit upon his promise to repay any amount in excess of that finally awarded. 426 A.2d at 1386.

8 . See Nilsen v. Ports of Call Oil Co., 711 P.2d 98, 101 (Okla.1985), (District Court has power to adjudicate whether claim is properly before it); MacThwaite Oil & Gas Co. v. Bolen, 77 Okla. 155, 187 P. 221, 222 (1919), (judicial error, even in jurisdictional matters, is reviewable by appeal); Town of Ames v. Wybrant, 203 Okla. 307, 220 P.2d 693 (1950), (order determining claim on necessity of taking is appealable).