Mansell v. City of Lawton

Mansell v. City of Lawton
1994 OK 75
877 P.2d 1120
65 OBJ 2233
Case Number: 82589
Decided: 06/28/1994
Modified: 06/29/1994
Supreme Court of Oklahoma

 
Bob L. MANSELL, Appellant,
v.
CITY OF LAWTON, Appellee.

Appeal from the District Court for Comanche County; Roy D. Moore, District Judge.

¶0 Appellee, by its response to Appellant's petition in error, filed a motion to dismiss the appeal alleging that the petition in error was untimely.

MOTION TO DISMISS DENIED.

Steven S. Mansell, Oklahoma City, for appellant.

John H. Vincent, Lawton, for appellee.

SUMMERS, Justice.

¶1 The trial judge sustained a motion to dismiss, and a judge-signed minute to that effect was filed that same day on October 7, 1993. A journal entry of judgment was then filed on October 15, 1993. The petition in error was filed on Monday, November 15, 1993. Appellee moves to dismiss for untimeliness.

Effective October 1, 1993, a minute entry is not an appealable order. 12 O.S.Supp.1993 § 696.2(C). That statute, which took effect that date, 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 limited to, a letter to a party or parties indicating the ruling or instructions for preparing the judgment, decree or appealable order.

Id.

Minute entries are usually considered to be the function of a clerk, but 12 O.S.1991 § 23 states that a judge may also prepare an entry in the form of a minute. As a matter of courthouse practice it may be titled as a [877 P.2d 1121] court minute order, court minute, minute order, minute, or have no title. This one had none. A minute contains a brief description of the order or judgment rendered. 12 O.S. 1991 § 23.

¶2 Section 696.2 also states that the time to appeal does not begin to run until the appealable order or judgment is prepared in a certain form and filed with the trial court clerk.

The time for appeal shall not begin to run until a written judgment, decree or appealable order, prepared in conformance with Section 10 of this act, is filed with the court clerk, regardless of whether the judgment, decree, or appealable order is effective when pronounced or when it is filed.

Id. § 696.2(D).

Section 10 of the act was codified at 12 O.S.Supp.1993 § 696.3, and requires the appealable order or judgment to have a caption including the name of the court, the names and designation of the parties, the file number of the case, and the title of the instrument. It further requires a statement of the disposition, including the relief awarded, signature and title of the court, and other matters approved by the court.

¶3 A judgment or appealable order conforming to § 696.3 is "a jurisdictional prerequisite to the commencement of an appeal." 12 O.S.Supp.1993 § 696.2(C). See also 12 O.S.Supp.1993 § 990A(A). Section 696.3 requires the appealable order to have a title. If an order has no title, or bears a title in some form using the word "minute", and otherwise meets the description of a minute, we believe the Legislature intended it not to be appealable, 12 O.S. § 696.2(C), even thought it may have been appealable prior to October 1, 1993. These recent statutory changes define the appealable event according to the form by which the decision is filed. 12 O.S.Supp.1993 §§ 696.2, 696.3. This minute entry is in a form that makes it not an appealable order. 12 O.S.Supp.1993 §§696.2, 696.3.

¶4 The journal entry of judgment filed on October 15, 1993 satisfies the form required by 12 0,S.Supp.1993 § 696.3. The petition in error must be filed within thirty days of the date the journal entry of judgment was filed in the trial court. 12 O.S.Supp.1993 §990A(A). Thirty days from October 15, 1993 was Sunday, November 14, 1993, and because of that the Appellant was authorized to file the petition in error on the following Monday, November 15, 1993. 25 O.S.1991 §82.1. The petition in error is thus timely filed, the motion to dismiss is denied, and the appeal shall proceed.

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

¶6 SIMMS and OPALA, JJ., concur in result.

¶7 HARGRAVE, J., dissents.

OPALA, Justice, with whom SIMMS, Justice, joins, concurring in result.

¶1 Concluding that the appellant's petition in error was timely brought, the court holds that a filed memorial of a ruling does not trigger appeal time unless it is in literal compliance with all of the requirements in 12 0.S.1993 §696.3.

I

THE ANATOMY OF THE LITIGATION.

¶2 On August 25, 1993 the City of Lawton [the City or defendant] sought dismissal of Bob L. Mansell's [Mansell or plaintiff] action against the City. The court dismissed the action on October 7, 1993. The trial judge (a) memorialized his ruling on a printed docket sheet form which bears the title "minute", (b) signed it, and (c) forwarded it to the clerk for filing and entry on the journal.

II

THE SUBSTANTIVE CONTENT OF THE OCTOBER 7 MEMORIAL, RATHER THAN THE NAME GIVEN IT BY ITS AUTHOR, DETERMINES WHETHER IT QUALIFIES AS AN ORDER OR AS A MINUTE.

¶3 The meaning and effect of an instrument depends on its substantive content rather than on the form or title provided by its [877 P.2d 1123] author.

¶4 While both orders and minutes

¶5 Minutes are never a fit substitute for a judge's recordable entry since minutes are Incomplete by definition.

¶6 The court attempts to avoid characterizing the October 7 paper as an order by using syllogistic logic. It reasons that minutes are posted on the appearance docket; the judge signed paper, here in contest, was posted on the appearance docket; ergo, it must be a "minute" or "minute order''.15 This reasoning ignores the essential function of an appearance docket. It is to be kept as a chronological index of all papers filed and of all significant actions taken in a case; it must reflect courtroom minutes [with abstracts of all proceedings in the case ] and list the filed orders that are recordable.16

¶7 The October 7 memorial's content and substance meet all of the 12 O.S.1991 §§ 24 and 1116

III

BECAUSE THE OCTOBER 7, 1993 ORDER DOES NOT COMPLY SUBSTANTIALLY WITH THE REQUIREMENTS OF § 696.3, IT CANNOT TRIGGER APPEAL TIME

¶8 Once the October 7, 1993 instrument was posted on the appearance docket and placed on file, it became the court clerk's task to decide if it was recordable

¶9 Under the pre-October 1, 1993 procedural regime, a judge-signed memorial that clearly specified the relief granted

¶10 Although court clerks are charged with knowledge that placing an instrument "on file"

IV

THE COURT'S OPINION INFUSES INSTABILITY INTO THE RECORDKEEPING SYSTEM PRESCRIBED FOR THE JOURNAL AND FOR THE JUDGMENT ROLL.

¶11 Today's pronouncement is insensitive to the concerns for maintenance of a dependable, stable and symmetrical record-keeping system,

A

UNGUIDED IMPLEMENTATION OF 12 O.S.1993 § 696.3 WILL CREATE CONFUSION AND UNCERTAINTY IN THE JUDGMENT ROLLS.

¶12 Today's opinion exacts literal rather than substantial compliance with the provisions of §696.3

¶13 In disregard of extant case law

B

TODAY'S OPINION, CREATING A DICHOTOMOUS DIVISION OF COURT-GENERATED RECORDKEEPING PRODUCTS, WILL RESULT IN MULTIPLE ENTRIES OF APPEALABLE ORDERS AND OF JUDGMENTS TO BE ENTERED ON THE COURT'S JOURNAL.

¶14 The court proposes a simplistic and unrealistic dichotomous division of court-generated record-keeping products-i.e., (1) minutes and (2) memorials that strictly comply with § 696.3's criteria. It would have "minutes" include every memorial not strictly complying with the §696.3 standards. Today's opinion ignores the reality that memorials complying with the § 24 standards must and will continue to be entered on the journal.

¶15 In order to protect the journal from multiple memorials of the same ruling, I would propose a trichotomous analysis of court generated record-keeping products and identify its components as:

1. Minutes

2. Recordable memorials that comply with §24's standards but do not substantially meet the § 696.3 criteria

3. Recordable memorials that substantially comply with both §§ 24 and 696.3.

¶16 In implementing my trichotomous division, I would counsel that in the exercise of its Art. 7, § 6 powers

¶17 The court's murky dichotomy creates the probability, if not indeed a possibility, of judgments and appealable orders having two or more not entirely identical memorials as external proof of their existence. This court stands committed to the principle that in the judgment roll of a case there can be only one authentic memorial of a judgment.

¶18 The possibility of double entries is exacerbated by the court's reasoning that any signed and recordable memorial having the word "minute" in its title may be disregarded as a minute rather than an order. The court reasons that §696.2(C)

¶19 By ignoring the existence of memorials that, though recordable under § 24, do not meet the §696.3 criteria, the court paves the way for multiple recordable memorials of the same ruling. If the first fails to meet all of the literal § 696.3 criteria or is entitled "minute", the second memorial, even if a nullity under Aishman, would count as the appeal time's trigger.

C

MULTIPLE ENTRIES OF JUDGMENTS AND APPEALABLE ORDERS WILL CREATE UNCERTAINTY IN THE RECORD PROPER AND WILL SPAWN AN INORDINATE NUMBER OF VACATION PROCEEDINGS AS WELL AS QUIET TITLE SUITS.

¶20 Any pronouncement that allows judgments and orders to be memorialized by multiple entries of the same decision will generate an inordinate number of vacation proceedings

[877 P.2d 1128]

¶21 Lawyers daily search through judgment rolls that serve as muniments of title to real property. A title examiner who would find within the four corners of a judgment roll

D

TRIAL JUDGES SHOULD BE INSTRUCTED TO SIGN ONLY THOSE INSTRUMENTS WHICH THEY INTEND TO BE FILED AND ENTERED ON THE JOURNAL AS JUDGMENTS, DECREES OR ORDERS.

¶22 If a ruling is documented as a mnemonic aid to the judge or counsel for their internal use and is intended solely for posting as a minute

¶23 Here, the nisi pries judge signed the October 7 instrument and, by doing so, made the instrument recordable. But for the trial judge's signature, this case would not pose the dilemma whose solution calls for harmonizing § 24 with § 696.3.

V

CONCLUSION

¶24 The court today construes § 696.3 as requiring that all judge-signed memorials comply literally with all of its provisions. It engages in indiscriminate labeling by holding that any instrument entitled "minute" is in fact a minute. The clerks must look to this court for guidance on how to prevent their record-keeping from producing more than one recordable memorial of a court's ruling. Today's opinion fails them. They must sail on their own through a river of uncharted paper, with the buoys-that once signaled the presence of sandbars-now replaced by sophistic logic. The course I counsel in the interest of stability would declare that henceforth the earliest memorial of an order, which meets substantially the criteria of both 12 O.S.1991 § 24 and of 12 0.S.1993 § 696.3, should be constituted as the sole recordable entry for the judgment roll, triggering appeal time and memorializing the decision. All subsequent entries should stand as a nullity until properly vacated under the § 1031 procedure. Orders failing to meet both sections' criteria should not be recorded. I would also reaffirm today the teaching of Aishman. Lastly, I would admonish all nisi prius judges never to sign any papers not destined for use as recorded entries of their rulings.

Footnotes:

1. 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 par ties, 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;...."

2. The October 7, 1993 [first] order of the court was in the following form:

JUDGE D-2-HON. ROY D. MOORE 93266
MOTION DOCKET
DATE BEGINNING OCTOBER 07, 1993
**************************************************************************************************************************************************

ROOM: MOTION TO DISMISS BY CITY OF LAWTON TIME : 13:30
CASE NO: CJ-CO-93-000780-08 FILE DATE: 08/05/93 T-CASE: FRIENDLY SUIT
STYLE: MANSELL, BOB L. -VS- CITY OF LAWTON
P-ATTY:MANSELL, STEVEN S. D-ATTY: VINCENT JR. JOHN HOLLIS

PARTY PARTY

GROUP

001 AT MANSELL, STEVEN S.
001 PL MANSELL, BOB L.
002 AT VINCENT JR., JOHN HOLLIS
002 DF CITY OF LAWTON

MINUTE:

SUSTAINED

/s/ ROY D. MOORE

3. An appeal is governed by the law in effect at the time of the appealable event. The terms of 12 O.S.1993 § 696.3 control this case because they became effective on October 1, 1993. Patmon v. Block, Okl., 851 P.2d 539, 542-43 (1993); Blacketer v. State, Okl.Cr., 485 P.2d 1069, 1070 (1971); Rudolph v. Jurgensen, 31 Okl. 32, 119 P. 640 (1911).

4. The journal is to be maintained by the court clerk.See12O.S.1991§ 24.Its terms 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 judge and specify clearly the relief granted or order made." [Emphasis added.]

5. 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 Pittsburg 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).

6. 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.]

7. See supra note I for the pertinent terms of 12 O.S.1993 § 696.3.

8. Minutes are nothing more than abbreviated memoranda of what takes place in court. Hinshaw v. State, 147 Ind. 334, 47 N.E. 157, 171 (1897); State v. Larkin, 11 Nev. 314, 321 (1876); Gregory v. Frothingham, I Nev. 253, 260 (1865). Ordinarily the deputy clerk, present in the courtroom, is the scrivener of the minutes although the judge also is authorized to draft minutes. See 12 O.S.1991 § 23, infra note 9.

9. The documents required to be posted on the appearance docket are identified in 12 O.S.1991 § 23. Its pertinent terms are:

"On the appearance docket he [the clerk of the district court] shall enter all actions in the order in which they are brought, the date of the summons, the time of the return thereof by the officer, and his return thereon, the time of filing the petition, and all subsequent pleadings and papers, and an abstract of all judgments and orders of the court. An abstract shall contain a very brief description of the order or judgment rendered. It must not be encumbered with a detailed recital of the terms. Proceedings other than those which culminated in an order or judgment shall not be abstracted into the appearance docket. Either the judge or the clerk may prepare an appearance docket entry in the form of a minute, or the content of the entry may be dictated either by the judge or clerk into an electronic recording device. The clerk shall transcribe onto the appearance docket all minute entries made and all the electronically-recorded abstracts." [Emphasis added.]

10.Rodgers v. Higgins, Okl., 871 P.2d 398, 407-408 (1993); Halsey v. Mid-America Preferred Ins. co' Okl., 777 P.2d 932, 935 (1989); Miller v. Miller, Okl., 664 P.2d 1032, 1034 (1983); McCullough v. Safeway Stores, Inc., Okl., 626 P.2d 1332, 1335 (1981); State v. Froese, 200 Okl. 486, 197 P.2d 296, 298 (1948).

11. See supra note 5.

12. "Recordable" means that by force of § 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 § 24 concept of "on file" is distinguishable from the § 696.3 concept of "filing". "On file" means that the paper is kept [according to the mandate of 12 O.S.1991 § 29] within a folder or jacket in the clerk's office. "Filing" of the instrument signifies its delivery to the clerk for entry or preservation. See Rodgers, supra note 10 at 408-409.

13. Elliott v. City of Guthrie, Okl., 725 P.2d 861, 863 (1986); Chamberlin v. Chamberlin, Okl., 720 P.2d 721, 723 (1986); Miller, supra note 10 at 1034; Wetsel v. Independent School District 1-1, Okl., 670 P.2d 986, 993 (1983); McCullough, supra note 10 at 1335.

14. Case law antedating October 1, 1993 uniformly required that memorials to be entered upon the journal record (1) bear the judge's full signature and (2) contain a clear indication of the relief afforded. Martin v. Lib. Nat. Bank & Trust, Okl., 839 P.2d 179, 180 (1992).

15. The term 'minute order" is an oxymoron having no legal meaning. Minute entries are not now and have never been orders. This tenet, reflected in extant case law [see supra note 10], has been codified by the 1993 amendments to the Judgment Act. see 12 O.S.1993 § 696.2.C. which provides in pertinent part:

"The following shall not constitute a judgment, decree or appealable order: A minute entry....' [Emphasis added.]

16. see supra note 9 for the pertinent terms of 12 O.S.1991 § 23.

17. see supra note 6 for the terms of 12 O.S.1991 § 1116.

18. See supra note 12 for the definition of "recordable".

19. A minute of a pronounced judgment is to be distinguished from its record entry. The latter is not effected by a clerk's note on the appearance docket. Rather, it is accomplished by a written memorial which is filed in the case and entered on the court's journal. McCullough, supra note 10 at 1335; Eroese, supra note 10, 197 P.2d at 298. A minute entry lacks the effect of a judgment or order since it is not signed by the judge. Entnes always control over minutes. The latter, when discordant with the former, need not be vacated to clarify the court's record. Marcus, supra note 14 at 180; Elliott, supra note 13 at 863.

20. see supra note 2 for this instrument's text.

21. see supra note 4 for the pertinent terms of 12 O.S. 1991 § 24.

22. The entry of orders in the journal record is vital to the functioning of our appellate process because neither the appearance docket sheets nor minute entries in a case may be accepted by a reviewing court as a proper substitute for the judge's memorialized entry of judgment, orders, or of any proceedings occurring at nisi prius. see Elliott, supra note 13 at 863; Chamberlin, supra note 13 at 723.

23. Failure to designate in the order the court of the document's origination is enough of a departure from § 696.3's criteria to prevent this me mortal from qualifying as external proof of the at court's ruling.

24. see supra note I for the pertinent terms of 12 O.S.1993 § 696.3.

25. See 12 O.S.1993 § 696.2.C. Its pertinent terms state:

"The filing with the court clerk of a written judgment, decree or appealable order, prepared in conformance with Section 10 of this act [12 O.S.1993 § 696.3] and signed by the court, shall be a jurisdictional prerequisite to the commencement of an appeal." [Emphasis mine.]

See also

"An appeal to the Oklahoma Supreme Court, if taken, must be commenced by filing a petition in error within thirty (30) days from the date a judgment, decree or appealable order prepared in conformance with Section 10 of this act [codified as 12 O.S.1993 § 696.3] is filed with the clerk of the trial court." [Emphasis addcd.]

26. See supra note 12 for the meaning of "on file".

27. Rodgers, supra note 10 at 404 405.

28. The materials included in the record are listed in 12 O.S.1991 § 32.1. The pertinent terms of §32.1 are:

"The record shall be made up from the petition, the process, return, the pleadings subsequent thereto, reports, verdicts, orders, judgmcnts, and all material acts and proceedings of the court ... Evidence must not be recorded."

The term "record" or "record proper" is synonymous with "common-law record" and "judgment roll.' Rodgers, supra note 10 at 405.

29. Austin v. King, Okl., 404 P.2d 1009, 1014 (1965); Little v. Employer's Casualty Co., 180 Okl. 628, 71 P.2d 687, 688 (1937); Callander v. Hopkins, 97 Okl. 41, 222 P. 672, 673 (1924). For the pertinent terms of 12 O.S.1991 § 32.1 see supra note 28.

30. See supra note 4 for the relevant terms of 12 O.S.1991 § 24. Clerks should be advised that while the title of an instrument is instructive, it is not conclusive of a document's recordability. The substantive content of a memorial is the critical determinant.

31. The "record system" of the district courts encompasses the following components the court clerk is legislatively mandated to keep:

1. Appearance docket [12 O.S.1991 § 23]

2. Judgment roll or record proper [12 O.S.1991 § 32.1]

3. Journal [12 O.S.1991 § 24]

4. Case file [12 O.S.1991 § 29]

For a schematic analysis of the court clerk's functions in the maintenance of the record system, see the Appendix to this writing.

32. At common law the "judgment roll" was a roll of parchment upon which the critical stages of court proceedings would be entered. On an action's termination the roll was deposited in perpetuam rel memoriam (in perpetual memory). After paper replaced parchment as a universal writing medium, the roll fell into disuse; but the term was carried over to describe the content of the court's permanent record required to be kept by the clerk. 12 O.S.1991 § 32.1; Pettis v. Johnston, 78 Okl. 277, 190 P. 681, 700 (1920).

33. Elliott, supra note 13 at 863.

34. See supra note I for the terms of § 696.3.

35. See supra note 5.

36. The pertinent terms of 12 O.S.1993 § 696.2(D) are:

"The time for appeal shall not begin to run until a written judgment, decree or appealable order, prepared in conformance with [12 O.S. 1993 § 696.3], is filed with the court clerk, regardless of whether the judgment, decree, or appealable order is effective when pronounced or when it is filed." [Emphasis added.]

37. See supra note 4 for the requirements of 12

O.S.lg91 § 24.

38. The pertinent terms of Art. 7, § 6, Okl. Const. are:

"[G]eneral administrative authority over all courts is this State ... is hereby vested in the Supreme Court and shall be exercised by the Chief Justice in accordance with its rules."

39. Aishman v. Taylor, Okl., 516 P.2d 244, 245 (1973). "A judgment is the final determination of the rights of the parties in an action." 12 O.S.19gl § 681.

40. Id.

41. The terms of 12 O.S.199l § 1031 et seq. authorize the district court to vacate or modify its judgment within prescribed times after due notice is given to all affected parties.

42. See supra note 15 for the terms of 12 O.S.1993 § 696.2.C.

43. The court would characterize any instrument as a minute entry, even though it substantially meets the 12 O.S.199l § 1116 requisites of an order, and is recordable under § 24 if it contains some form of the word "minute" in its title. The terms of 12 O.S.19g3 § 696.2 [see supra note 15] do not require this result.

44. The court's transmogrification of recordable memorials into "minutes" is likely to deny adversely affected parties the notice which is their due under 12 O.S.199l § 1031 vacation proceedings before memorials may be changed. Allen v. Allen, 201 Okl. 442, 209 P.2d 172, 176 (I948), cert. denied, 336 U.S. 956, 69 S. Ct. 891, 93 L. Ed. 1110 (1949); Lewis v. Ward, 101 Okl. 146, 223 P. 839, 840 (1924); Co-Wok-Ochee v. Chapman, 76 Okl. 1, 183 P. 610 (1919). Today's opinion ignores the constitutional dimensions of both Allen and Aishman. Both cases protect the parties from ex parse changes in recorded or recordable memorials on file in the court.

45. See supra note 25 for the 12 O.S.1993 § 990A requisites.

46. A lawyer construing or interpreting judgments affecting title to real property is confined to the four corners of the judgment roll. Elliott, supra note 13 at 863; Panhandle Royalty Co. v. Farni, Okl., 747 P.2d 932, 934 (1987).

47. See supra note 8 for the definition of minute.

48. See Martin, supra note 14 at 180.

49. Id. At 180; Miller, supra note 10 at 1034.