Lucas v. BishopAnnotate this Case
Lucas v. Bishop
1995 OK 7
890 P.2d 411
66 OBJ 579
Case Number: 82265
Supreme Court of Oklahoma
JAY LUCAS, APPELLANT,
BILL BISHOP AND VICKIE LYNN BISHOP, HUSBAND AND
WIFE, APPELLEES, and DOROTHY M. LIFSEY, DEFENDANT.
Appeal from the District Court for Bryan County.
¶0 Plaintiff brought breach of contract action in the District Court. The Honorable Rocky L. Powers, Associate District Judge, sustained Defendants' motion for summary judgment. Plaintiff appealed and Defendants moved to dismiss for untimeliness.
MOTION TO DISMISS APPEAL DENIED; APPEAL SHALL PROCEED.
Clyde Stallings, Durant and Faye Bancroft, Little Rock, AR, for appellant.
Bob E. Savage, Tishomingo, for appellees.
¶1 Lucas and the Bishops were parties to a written contract for deed. Lucas, the seller, brought an action in the District Court against the Bishops.
¶2 The only issue at this stage of the appeal is whether the plaintiff's appeal was timely commenced. We conclude that it was timely, and deny the defendants' motion to dismiss.
¶3 On May 4, 1993, the trial judge signed and filed a "court minute" sustaining defendants' motion for summary judgment. Next, on [890 P.2d 411] May 6 the judge signed and filed a court minute clarifying the ruling of May 4, and listed claims in controversy that no judgment has been granted on.
¶4 Plaintiff filed a Motion for New Trial on July 30, 1993 and sought a new adjudication on attorney fees. On August 12, 1993 the trial judge signed and filed a Journal Entry memorializing the earlier grant of summary judgment. On the next day, August 13th, the judgment of August 12 was withdrawn by the trial judge. Then on August 18, 1993 a second Journal Entry was filed, reinstating the August 12th Journal Entry. The petition in error was mailed to this Court on September 9, 1993 in compliance with the Rule 1.15 of the Rules of Civil Appellate Procedure, and is deemed filed that date. Rules of Civil Appellate Procedure, 12 O.S. 1991 Ch. 15, App. 2, Rule 1.15.
¶5 The Court recently explained that prior to October 1, 1993 a judge-signed minute completely adjudicating a controversy was an appealable order. Manning v. State ex rel. Dept. of Public Safety, 876 P.2d 667 (Okla. 1994). See also Mansell v. City of Lawton, 877 P.2d 1120 (Okla. 1994) and our discussion of judge-signed minutes filed after October 1, 1993.
¶6 The August 18th Journal Entry determined that the order sustaining summary judgment on May 4, 1993 was not a partial summary judgment but "an award of full and complete summary judgment in favor of Defendants,. . . ." The trial court noted that the plaintiff had requested clarification of the previous orders. Then the court stated that the prior order awarding summary judgment and the order regarding attorney's fees "are made effective as of this date and that Plaintiff's appeal time shall commence as of this date as to all issues pertaining thereto." The court then "reinstated" the journal entry of August 12th.
¶7 A trial judge's discretion under 12 O.S. 1991
¶8 ALMA WILSON, C.J., KAUGER, V.C.J., and HODGES, LAVENDER, HARGRAVE and WATT, JJ., concur.
¶9 SIMMS and OPALA, JJ., dissent in part.
1 The additional defendant, Dorothy Lifsey, disclaimed any interest in the property at the time of service of process.
2 The trial court stated that it was not adjudicating claims on alleged delinquent or unpaid amounts, the dispute on the payment of taxes, and any amounts becoming due since the commencement of the suit. Due to our disposition of the matter we need not determine whether the trial court's order was a partial summary judgment on fewer than all of the claims.
3 October 1, 1993 was the effective date of 12 O.S.Supp. 1993 ' 696.2 , which provides that minute entries shall not be appealable orders.
OPALA, Justice, with whom SIMMS, J., joins, dissenting in part.
¶1 Concluding that the appellant's petition in error was timely filed, the court holds today that the August 18, 1993 record entry of the trial court's ruling tendered for our review - and not the earlier May 4, 1993 filed memorial
THE ANATOMY OF LITIGATION
¶2 By contract for deed Lucas sold the Bishops certain lands. On several occasions the Bishops failed timely to make scheduled payments, prompting Lucas to sue them (1) for the full amount of the purchase price and (2) for foreclosure of a claimed vendor's lien upon the premises. On February 26, 1993 the Bishops moved for summary judgment, asserting that (a) the contract for deed did not contain an acceleration clause and allowed for foreclosure only if the buyer defaulted on installments for three or more consecutive months and (b) Lucas could not prevail under the facts shown by the evidentiary materials before the court. By record entry dated May 4, 1993t , signed by the trial judge and filed with the court clerk's office, the court gave summary judgment to the Bishops. On May 6, 1993 the court effected a sua sponte
¶3 On July 21, 1993 the trial court awarded to the Bishops their counsel fee and costs. Lucas then moved for new trial or alternatively to vacate that award, which was denied on August 12, 1993. The following day the court withdrew its August 12 order and then reinstated it on August 17, 1993. Lucas' petition in error, brought here on September 10, 1993, seeks review not only of the May 4 summary judgment but also of the August 12 counsel-fee award.
AN INSTRUMENT'S MEANING OR EFFECT DEPENDS UPON ITS CONTENT AND SUBSTANCE RATHER THAN ON ITS FORM OR TITLE
[890 P.2d 414]
¶5 The substance and content of the May 4 entry
¶6 The later-enacted provisions of 12 O.S.Supp. 1993
THE APPEAL'S TIME TRIGGER IS A LAW-DRIVEN MECHANISM WHICH MAY NOT BE EXTENDED BY A TRIAL JUDGE'S LATER DIRECTIVES
¶7 This court stands committed to the view that, once an appealable event has occurred, a trial judge is utterly without authority to extend appeal time by any means or in any manner, direct or oblique.
¶8 By its August 18 order the trial court doubtless attempted to breathe new life into the much earlier May 4 summary judgment. The attempt must fail. Once judgment has become final, any nisi prius effort to extend the time for an appeal
SINCE THE TRIAL JUDGE'S ACTION DID NOT INJECT ANY PROCEDURAL CONFUSION INTO THE PROCEEDINGS THAT SURROUNDED THE MAY 4 RECORD ENTRY, MANNING'S RULE OF PROSPECTIVITY DOES NOT GOVERN THIS CASE
¶9 The court misapplies today Manning's rule of prospectivity. In Manning confusion was injected by the trial judge's direction - given the day judgment was entered - that, in addition to the judge's own complete memorial of the terminal ruling, a party's counsel should prepare another journal entry. No such or similar instruction appears in this record. In fact, Lucas has never prepared and filed another memorial of the May 4 summary judgment or of its
¶10 Today's holding that a trial judge has the power to extend appeal time after the statutorily prescribed period for appeal has expired represents a sharp break with our past teachings. Extant case law, which bars nisiprius judges from enlarging the statutory appeal time after its earlier expiration, must not be ignored.
¶11 Since the trial court's counsel-fee award to the Bishops became final within thirty days of this appeal's commencement, Lucas' quest for corrective relief from the latter order is timely; he should hence be allowed to proceed for review of that singular issue.
1 The May 4 memorial is in the following form:
IN THE DISTRICT COURT OF
BRYAN COUNTY, STATE OF OKLAHOMA
BILL BISHOP, et al
Defendant(s) /s/ RLP ______
_________ May 4, 1993 No. C-92-296
Def's motion for summary
judgment is sustained.
Copies to counsel.
/s/ Randy L. Powers
2 Manning v. State ex rel. Dept. of Public Safety, Okl., 876 P.2d 667 (1994).
3 The nisi prius court's May 6, 1993 modification of its judgment is authorized by the provisions of 12 O.S. 1991 ' 1031.1 . Its terms are:
"Within thirty (30) days after the rendition of a judgment, the court, of its own initiative or on motion of a party, may correct, open, modify or vacate a judgment. The court may prescribe what notice, if any, shall be given." [Emphasis added.]
4 See infra note 23 for the terms of 12 O.S.Supp. 1993 ' ' 696.2 (C) and 696.3, which became effective October 1, 1993.
5 For the terms of 12 O.S. 1991 ' 1031.1 , see supra note 3.
6 Sellers v. Oklahoma Pub. Co., Okl., 687 P.2d 116, 118 (1984); 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); Boose v. Hanlin, Okl., 346 P.2d 932, 935 (1959).
7 "A judgment is the final determination of the rights of the parties in an action." 12 O.S. 1991 ' 681 . [Emphasis added.] See Hurley v. Hurley, 191 Okl. 194, 127 P.2d 147, 150 (1942).
8 An order is a "direction of a court or judge made or entered in writing, and not included in a judgment." 12 O.S. 1991 ' 1116 . [Emphasis added.]
9 Practitioners will be well advised to notice the provisions of ' 9 of House Bill No. 1468, 1993 OKLA. SESS. LAWS Ch. 351 (to be codified at 12 O.S.Supp. 1993 ' 696.2 ), not in force at the time of the appealable event in this case, which provide in pertinent part:
"The following shall not constitute a judgment, decree or appealable order: A minute entry. . . ."[Emphasis added.]
10 The term "minute order" has no legal meaning. This oxymoron crept into courthouse parlance when, because of county budgetary constraints that eliminated the availability of some courtroom deputies, judges began writing and signing at the bench short, recordable orders. Oklahoma is not the only state to be plagued by oxymorons. See, e.g., Woodland v. Woodland, 147 N.W.2d 590, 601 (N.D. 1967), for an instrument dubbed a "judgment order."
11 The terms of 12 O.S. 1991 ' 32.1 provide in pertinent part:
"The record shall be made up from
Entry of judgment in the ' 32.1 sense means entering the memorialization that meets the ' 24 recordation criteria for inclusion in the court's "record proper" - a term which is synonymous with "common-law record" and "judgment roll."
The judgment roll's statutory definition has remained the same for over 100 years. For an extensive discussion of the judgment roll, its history, and its elements, see A. FREEMAN A TREATISE OF THE LAW OF JUDGMENTS
"On the appearance docket [the clerk] shall enter all actions in the order in which they are brought . . . [including] an abstract of all judgments and orders of the court. An abstract shall contain a very brief description of the order or judgment rendered. . . ." [Emphasis provided.]
13 The pertinent terms of 12 O.S. 1991 ' 24 are:
"Upon the journal record
* * * * * *
"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.]
14 This appeal is governed by the law in effect in May 1993 when judgment was rendered. Patmon v. Block, Okl., 851 P.2d 539, 542-43 (1993). The terms of 12 O.S. 1991 ' 990A , repealed by 1993 OKLA. SESS. LAWS Ch. 351 ' 18, effective October 1993 (to be codified at 12 O.S.Supp. 1993 ' 990A ), provide in pertinent part:
"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." [Emphasis supplied.]
15 The judge-signed memorial describing in full the relief granted, filed May 4, 1993, meets all the criteria for a record entry under the statutory regime in effect when the judgment was entered.
16 For the text of the May 4 record entry, see supra note 1.
17 A trial court's minutes are no more than a trustworthy chronicle of events transpiring in the course of proceedings in a case. Bush v. Bush, 158 Kan. 760, 150 P.2d 168 (1944).
19 For the terms of 12 O.S. 1991 ' 681 , see supra note 7.
20 "Recordable" means that by force of ' 24 an instrument meeting that section's standards must be entered or "recorded" in the court's journal.
21 See 12 O.S. 1991 ' 990A , supra note 14, which provides that the filed judgment triggers appeal time.
22 Manning, supra note 2 at 671.
23 The pertinent terms of 12 O.S. 1993 ' 696.2 (C), effective October 1, 1993, are:
"The following shall not constitute a judgment, decree or appealable order: A minute entry. . . ." [Emphasis added.]
24 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; . . . ."
25 See in this connection Mansell v. City of Lawton, Okl., 877 P.2d 1120, 1121 (1994) (Opala, J., concurring in result).
26 See Herring v. Wiggins, 7 Okl. 312, 54 P. 483 (the court's syllabus ' 1) (1898); Bellamy v. Washita Valley Telephone Co., 25 Okl. 792, 108 P. 389 (the court's syllabus ' 2) (1910); Philbrock v. Home Drilling Co., 117 Okl. 266, 246 P. 457 (the court's syllabus ' 2) (1926); Sowers v. Archer, 161 Okl. 148, 17 P.2d 422, 423 (1932); Starr v. Woods, 162 Okl. 242, 19 P.2d 561, 562 (1933); Watchorn v. General Finance & Sales Co., 162 Okl. 203, 19 P.2d 566 (the court's syllabus ' 2) (1933). Manos v. Leche, 205 Okl. 213, 236 P.2d 693, 695 (1951); Salyer v. National Trailer Convoy, Inc., Okl., 727 P.2d 1361, 1362 n. 2 (1986); Grant Square Bank & Trust Co. v. Werner, Okl., 782 P.2d 109, 111 n. 4 (1989).
28 See supra note 14 for the pertinent terms of 12 O.S. 1991 ' 990A which govern this appeal.
29 See supra note 3 for the terms of 12 O.S. 1991 ' 1031.1 . See also Southeastern, Inc. v. Doty, Okl., 481 P.2d 144, 147 (1971).
31 See Blackwelder, supra note 27, and Adams, supra note 27.