Vibbard v. City of Guthrie

Vibbard v. City of Guthrie
1997 OK CIV APP 55
947 P.2d 202
68 OBJ 3143
Case Number: 89051
Decided: 09/18/1997

DUIE L. VIBBARD,

VACATED AND REMANDED

Scott A. McArdle, McArdle Law Office, Ardmore, Oklahoma,

Larry E. Joplin, Judge

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After reviewing the record in this case, and being fully informed in the premises, said Judges find that the order of the Trial Judge heretofore entered on October 22, 1996, was not against the clear weight of [947 P.2d 204] the evidence nor contrary to law and same is hereby AFFIRMED.

The claimant's appeal to the Court en banc is dismissed upon the claimant's failure to timely file the appeal within the time period provided by 85 O.S. §3.6.

Claimant now seeks review before this court.

Due process requires that, when a matter is taken under advisement, the affected parties who appeared be given timely notice of the court's decision. U.S. Const. amend. V and XIV; Okla. Const. art. 2, § 7; McCullough v. Safeway Stores, Inc., [1981 OK 38,] 626 P.2d 1332, 1334 (Okla.1981). The legislature recognized this due process requirement when it enacted section 3.6 of the Workers' Compensation Act. Section 3.6 provides that an order, decision, or award of the Workers' Compensation Court does not become final until twenty days after a copy is sent to the affected parties. Okla.Stat. tit. 85, § 3.6 (Supp.1986) (emphasis added). And this Court affirmed the necessity of notifying the parties in Scrappers, Inc. v. Wilson, [1990 OK 42,] 790 P.2d 1116, 1117 (Okla.1990). Even the stamped verification affirms that the order must be sent to the parties affected.

The court's record creates a presumption the order was sent to the parties affected. See McCullough, 626 P.2d at 1334. This presumption is rebuttable. ... .

A. T. & T. v. Land

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HANSEN, P.J., concurs;

BUETTNER, J., specially concurring:

FOOTNOTES

1The order of the three-judge panel displays a facial inconsistency, i.e., while initially purporting to affirm the order of the trial court as neither "against the clear weight of the evidence nor contrary to law," the order then professes to dismiss the appeal "upon the claimant's failure to timely file the appeal within the time period provided by 85 O.S. §3.6." Inasmuch as (1) dismissal of the appeal, it seems to us, would preclude review of the merits of the appeal, (2) the dissenting judge expressly states she would vote "to allow this appeal to go forward on the merits," and (3) the parties agree in their briefs that the appellate tribunal did not entertain argument on the merits of Claimant's appellate complaints, we discount the trial court's recitation of a merits determination as not reflective of the court's true action.

BUETTNER, J., (specially concurring)

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