Kelsey v. Dollarsaver Food Warehouse of Durant

Kelsey v. Dollarsaver Food Warehouse of Durant
1994 OK 123
885 P.2d 1353
65 OBJ 3781
Case Number: 81862
Decided: 11/08/1994
Supreme Court of Oklahoma

 
PAT KELSEY, APPELLEE,
v.
DOLLARSAVER FOOD WAREHOUSE OF DURANT, APPELLANT.

Appeal from the District Court, Bryan County; Rocky L. Powers, Judge.

¶0 Plaintiff/Appellee moves to dismiss the appeal as being commenced more than 30 days from the date the appealable order was filed.

MOTION TO DISMISS DENIED.

Austin R. Deaton, Deaton & Davison, Inc., Ada, for appellant.

Ken Rainbolt, Mickle, Rainbolt & Wilhite, Don Michael Haggerty, Durant, for appellee.

SUMMERS, Justice.

[885 P.2d 1354]

¶1 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."

¶2 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.

¶3 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.

¶4 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.

¶5 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 subjective, "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.

¶6 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).

¶7 The language used by the court on May 18 falls short of amounting to an order of the [885 P.2d 1355] court. It announced that the motions should be overruled, but it did not overruled 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.

¶8 The motion to dismiss is denied.

¶9 HODGES, C.J., LAVENDER, V.C.J., and ALMA WILSON, KAUGER, WATT, JJ., concur.

¶10 SIMMS, HARGRAVE and OPALA, JJ., dissent.

Footnotes:

1 12 O.S. 1993 Supp. § 696.2 [93-696.2](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.

OPALA, Justice, with whom SIMMS and HARGRAVE, Justices, join, dissenting.

¶1 Concluding that the appellant's petition in error was timely brought, the court holds today that the June 2, 1993 record entry, and not the May 18, 1993 filed memorial,

I

THE SUBSTANTIVE CONTENT OF THE MAY 18 MEMORIAL DETERMINES WHETHER IT QUALIFIES AS AN ORDER

¶2 The meaning and effect of a legal instrument depends on its substantive content rather than on the form or title provided by its author.

II

THE LEGAL EFFECT OF A RECORD ENTRY THAT USES THE WORD "FINDS" AS A SYNONYM FOR OR AS INTERCHANGEABLE WITH THE VERB "ORDERS" IS DETERMINED BY THE JUDGE'S INTENT

¶3 In concluding that the judge-signed direction is but a "finding",7 the court disregards the very essence of the May 18 entry. It memorializes the ruling made upon the defendant's motion for judgment non obstante veredicto.8 When in a case calling for the assessment of the parties' relative negligence a motion for judgment n.o.v. comes on for ruling, it is not within the nisi prius court's province to make any findings of fact.9 While the use of the verb "finds" to overrule Dollarsaver's motion was perhaps grossly unartful,10 the context in which the word ("finds") is used unmistakenly indicates that it was intended as a synonym for the verb "rules" or "orders".11 The court's construction today renders the entry nugatory. Its result, which is neither mandated by nor consistent with the clear meaning and substance of the memorial's intended meaning, is both improvident and contrary to precedent.12

[885 P.2d 1357]

III

IN TERMS OF THE POSTJUDGMENT MEMORIAL HERE UNDER REVIEW THE MEANING TO BE GIVEN THE WORD "SHOULD" IS THE SAME AS THAT IN THE VERBS "ORDERS" OR "RULES", EVEN THOUGH "SHOULD" IS NOT FOLLOWED IMMEDIATELY BY THE TRITE; AND ANCIENT PHRASE "AND HEREBY IS

¶4 The legal question to be resolved by the court is whether the word "should"

¶5 Nisi prius orders should be so construed as to give effect to every words and every part of the text, with a view to carrying out the evident intent of the judge's direction.

IV

CONCLUSION

Nisi prius judgments and orders should be construed in a manner which gives effect and meaning to the complete substance of the memorial. When a judge-signed direction is capable of two interpretations, one of which would make it a valid part of the record proper and the other would render it a meaningless exercise in futility, the adoption of the former interpretation is this court's due.

A rule - that on direct appeal views as fatal to the order's efficacy the mere omission from the journal entry of a long and customarily implied phrase, i.e., "and the same hereby is" - is soon likely to drift into the body of principles which govern the facial validity of judgments. This development would make judicial acts acutely vulnerable to collateral attack for the most trivial of reasons and tend to undermine the stability of titles or other adjudicated rights.

It is obvious the trial judge intended his May 18 memorial to be an in praesenti order overruling Dollarsaver's motion for judgment n.o.v. It is hence that memorial, and not the later June 2 entry, which triggered appeal time in this case. Because the petition. in error was not filed within 30 days of May 18, the appeal is untimely. I would hence sustain the appellee's motion to dismiss.

Footnotes:

1 The pertinent terms of the memorial of May 18, 1993 are:

IN THE DISTRICT COURT OF
BRYAN COUNTY, STATE OF OKLAHOMA
COURT MINUTE
5/18/93
No. C-91-223

After having heard and considered arguments of counsel in support of and in opposition to the motions of the Defendant for judgment N.O.V. and a new trial, the Court finds that the motions should be overruled. Approved as to form:
/s/ Ken Rainbolt
/s/ Austin R. Deaton, Jr.
/s/ Don Michael Haggerty
/s/ Rocky L. Powers Judge

2 The turgid phrase - "should be and the same hereby is" - is a tautological absurdity. This is so because "should" is synonymous with ought or must and is in itself sufficient to effect an inpraesenti ruling - one that is couched in "a present indicative synonymous with ought." See infra note 15.

3 Carter v. Carter, Okl., 783 P.2d 969, 970 (1989); Horizons, Inc. v. Keo Leasing Co., Okl., 681 P.2d 757, 759 (1984); Amarex, Inc. v. Baker, Okl., 655 P.2d 1040, 1043 (1983); Knell v. Burnes, Okl., 645 P.2d 471, 473 (1982); Prock v. District Court of Pittsburgh County, Okl., 630 P.2d 772, 775 (1981); Harry v. Hertzler, 185 Okl. 151, 90 P.2d 656, 659 (1939); Ginn v. Knight, 106 Okl. 4, 232 P. 936, 937 (1925).

4 "Recordable" means that by force of 12 O.S. 1991 § 24 an instrument meeting that section's criteria must be entered on or "recorded" in the court's journal. The clerk may "enter" only that which is "on file." The pertinent terms of 12 O.S. 1991 § 24 are:

"Upon the journal record required to be kept by the clerk of the district court in civil cases . . . shall be entered copies of the following instruments on file:
1. All items of process by which the court acquired jurisdiction of the person of each defendant in the case; and
2. All instruments filed in the case that bear the signature of the and judge and specify clearly the relief granted or order made." [Emphasis added.]

5 See 12 O.S. 1991 § 1116 which states in pertinent part:

"Every direction of a court or judge made or entered in writing, and not included in a judgment is an order." [Emphasis added.]

6 The pertinent terms of 12 O.S. 1993 § 696.3 , effective October 1, 1993, are:

"A. Judgments, decrees and appealable orders that are filed with the clerk of the court shall contain:
1. A caption setting forth the name of the court, the names and designation of the parties, the file number of the case and the title of the instrument;
2. A statement of the disposition of the action, proceeding, or motion, including a statement of the relief awarded to a party or parties and the liabilities and obligations imposed on the other party or parties;
3. The signature and title of the court; . . ."

7 The court holds that the May 18 memorial's recital that "the Court finds that the motions should be overruled" is a "finding" and not a ruling. In its pure form, a finding is generally not effective as an order or judgment. See, e.g., Tillman v. Tillman, 199 Okl. 130, 184 P.2d 784 (1947), cited in the court's opinion.

8 When ruling upon a motion for judgment n.o.v. the court must take into account all the evidence favorable to the party against whom the motion is directed and disregard all conflicting evidence favorable to the movant. If the court should conclude the motion is sustainable, it must hold, as a matter of law, that there is an entire absence of proof tending to show a right to recover. See Austin v. Wilkerson, Inc., Okl., 519 P.2d 899, 903 (1974).

9 See Bullard v. Grisham Const. Co., Okl., 660 P.2d 1045, 1047 (1983), where this court reviewed a trial judge's "findings of fact", perceived as a basis for his ruling on a motion for judgment n.o.v. (in the face of a defendant's reliance on plaintiff's contributory negligence). These judicial findings were held impermissible as an invasion of the providence of the jury and proscribed by OKLA. CONST. ART, 23, § 6 . Id. at 1048.

10 Everyday courthouse parlance does not always distinguish between a judge's "finding", which denotes nisi prius resolution of fact issues, and "ruling" or "conclusion of law". The latter resolves disputed issues of law. In practice usage members of the bench and bar often confuse what the judge "finds" with what that official "concludes", i.e., resolves as a legal matter.

11 See Fowler v. Thomsen, 68 Neb. 578, 94 N.W. 810, 811-12 (1903), where the court determined a ruling that "[1] find from the bill of particulars that there is due the plaintiff the sum of . . ." was a judgment and not a finding. In reaching its conclusion the court reasoned that "[e]ffect must be given to the entire in the docket according to the manifest intention of the justice in making them." Id., 94 N.W. at 811.

12 When the language of a judgment is susceptible of two interpretations, that which makes it correct and valid is preferred to one that would render it erroneous. Hale v. Independent Powder Co., 46 Okl. 135, 148 P. 715, 716 (1915); Sharp v. McColm, 79 Kan. 772, 101 P. 659, 662 (1909); Clay v. Hildebrand, 34 Kan. 694, 9 P. 466, 470 (1886); see also 1 A.C. FREEMAN LAW OF JUDGMENTS § 76 (5th ed. 1925).

13 "Should" not only is used as a "present indicative" synonymous with ought but also is the past tense of "shall" with various shades of meaning not always easy to analyze. See 57 C.J. Shall § 9, Judgments § 121 (1932). O. JESPERSEN, GROWTH AND STRUCTURE OF THE ENGLISH LANGUAGE (1984); St. Louis & S.F.R. Co. v. Brown, 45 Okl. 143, 144 P. 1075, 1080-81 (1914). For a more detailed explanation, see the Partridge quotation infra note 15.

Certain contexts mandate a construction of the term "should" as more than merely indicating preference or desirability. Brown, supra at 1080-81 (jury instructions stating that jurors "should" reduce the amount of damages in proportion to the amount of contributory negligence of the plaintiff was held to imply an obligation and to be more than advisory); Carrigan v. California Horse Racing Board, 60 Wash. App. 79, 802 P.2d 813 (1990) (one of the Rules of Appellate Procedure requiring that a party "should devote a section of the brief to the request for the fee or expenses" was interpreted to mean that a party is under an obligation to include the requested segment); State v. Rack, 318 S.W.2d 211, 215 (Mo. 1958) ("should" would mean the same as "shall" or "must" when used in an instruction to the jury which tells the triers they "should disregard false testimony").

14 In praesenti means literally "at the present time." BLACK'S LAW DICTIONARY 792 (6th Ed. 1990). In legal parlance the phrase denotes that which in law is presently or immediately effective, as opposed to something that will or would become effective in the future [in futurol]. See Van Wyck v. Knevals, 106 U.S. 360, 365, 1 S. Ct. 336, 337, 27 L. Ed. 201 (1882).

15 Nonetheless, modern English usage appears supportive of my conclusion that ". . . what the practice amounts to is this: the past subjunctive should is not only used in all persons, but it is employed as, virtually, a present indicative synonymous with ought." E. PARTRIDGE, USAGE AND ABUSAGE, p. 376 (1963).

16 Frazier v. Bryan Memorial Hosp. Authority, Okl., 775 P.2d 281, 285 (1989); Elliot v. City of Guthrie. Okl., 725 P.2d 861, 863 (1986); Mayhue v. Mayhue, Okl., 706 P.2d 890, 893 n. 6 (1985).

 
17 Russell v. Freeman, 202 Okl. 417, 214 P.2d 439, 441-42 (1950); Gade v. Loffler, 171 Okl. 313, 42 P.2d 815, 818 (1935); McNeal v. Baker, 135 Okl. 159, 274 P. 655, 656 (1929); Foreman v. Riley, 88 Okl. 75, 211 P. 495, 496 (1923).

18 Brawn, supra note 13, 144 P. at 1080-81; Manhattan-Dickman Construction Co. v. Shawler, 113 Ariz. 549, 555, 558 P.2d 894, 900 (1976); Rack, supra. note 13, 318 S.W.2d at 215.

19 See supra note 1 for the pertinent terms and form of the May 18 memorial.

20 Minutes are nothing more than abbreviated memoranda of what takes place in a courtroom. Mansell v. City of Lawton, Okl., 877 P.2d 1120, 1123 (1994); Hinshaw v. State, 147 Ind. 334, 47 N.E. 157, 171 (1897); State v. Larkin, 11 Nev. 314, 321 (1876); Gregory v. Frothingham, 1 Nev. 253, 260 (1865). Although the judge is authorized to draft mnemonic aids for posting on the court's appearance docket, it is ordinarily the deputy clerk, present in the courtroom, who acts as the minutes' scrivener.

21 Because the court's pronouncement does not give this case the prospectivity protection which might be affordable by Manning v. State ex rel. Dept. of Public Safety, Okl., 876 P.2d 667 (1994), my writing does not consider Manning's impact, if any, on this appeal's dismissibility.