Meadows v. Pittsburg County Bd. of County Commissioners

Meadows v. Pittsburg County Bd. of County Commissioners
1995 OK 65
898 P.2d 741
66 OBJ 2112
Case Number: 81771
Decided: 06/27/1995
Supreme Court of Oklahoma

RONNIE MEADOWS, PERSONAL REPRESENTATIVE OF THE ESTATE OF DIANA L. MEADOWS, DECEASED, APPELLEE,
v.
PITTSBURG COUNTY BOARD OF COUNTY COMMISSIONERS, APPELLANT.

Appeal from the District Court for Pittsburg County.

¶0 The jury returned a verdict in favor of Plaintiff with the Honorable Robert A. Layden, District Judge, presiding. Defendant appealed and this Court conducted a sua sponte inquiry into its jurisdiction.

APPEAL TIMELY BROUGHT AND SHALL PROCEED.

Jeff Belote, Gotcher, Brown, Bland, & Belote, McAlester, for appellee.

Christopher J. Wilson, McAlester, for appellant.

SUMMERS, Justice.

¶1 This matter is before us prior to briefing on the merits for our determination as to whether the appeal was timely filed. The merits of the case on appeal are not before us. We conclude that the appeal was timely filed and that it shall proceed.

¶2 Plaintiff's petition states that this wrongful death action is brought pursuant to the Governmental Tort Claims Act of the State of Oklahoma. The defendant asserted a statutory immunity under the Tort Claims Act. The trial court agreed and the plaintiff appealed. The Court of Appeals reversed by an unpublished opinion. On remand a jury trial was held, resulting in a plaintiff's verdict.

¶3 The verdict was handed to the Clerk and filed in the trial court on May 12, 1993. On May 13, 1993 a "court minute" was signed and filed, containing a summary of the trial and verdict. The petition in error was filed in this Court on Monday, June 14, 1993. A journal entry of judgment was signed and filed on January 4, 1994. An amended petition in error was filed in this Court on January 5, 1994. Given these facts we find the appeal timely for the following reasons.

¶4 The first issue presented is whether the time to commence the appeal started on the date the verdict was filed. Two prior opinions of this Court have equated a filed verdict and a filed judgment for the purpose of commencing appeal time. Rodgers v. Higgins, 871 P.2d 398 (Okla. 1993); Jaco Production Company v. Luca, 823 P.2d 364 (Okla. 1991). If the Jaco rule applies the June 14th petition in error was too late to appeal from the May 12th filing of the jury's verdict.

¶5 An action pursuant to the Governmental Tort Claims Act is not a common law action. In Tate v. Browning-Ferris, Inc., 833 P.2d 1218, 1230 n. 66 (Okla. 1992), we noted that 51 O.S. 1981 § 153 (B) states that the liability of the political subdivision under the Act is exclusive and in place of all other liability at common law or otherwise. See also Juvenal v. Okeene Public Schools, 878 P.2d 1026, 1030 (Okla. 1994), (standard of liability pursuant to the Tort Claims Act applied although different than standard at common law); Fuller v. Odom, 741 P.2d 449, 453 (Okla. 1987), (common law joint and several liability did not apply to Political Subdivision Tort Claim). The timeliness of this appeal is not controlled by Jaco.

¶6 The next issue is whether the judge-signed instrument entitled "Court Minute (Summary)" summarizing the trial and verdict, and filed May 13, 1993, commenced the time to appeal. This issue was discussed in Matter of Estate of Robinson, 885 P.2d 1334 (Okla. 1994). Therein we explained the prospective effect of Manning v. State ex rel. Dept. of Public Safety, 876 P.2d 667 (Okla. 1994) on "court minutes" filed prior to October 1, 1993. We stated that a court minute dated August 30, 1993, although perhaps constituting a judgment, did not commence the time to file an appeal, and concluded that time to commence an appeal began on the filing of a subsequent order conforming to 12 O.S.Supp. 1993 § 696.3 . Robinson, 885 P.2d at 1336. Here too, applying the prospectivity of the Manning holding, we decline to commence the time to appeal from the court minute, and conclude that the appeal must commence from an order conforming to 12 O.S.Supp. 1993 § 696.3 .

¶7 On January 4, 1994 a Journal Entry of Judgment was signed by the judge and filed in the District Court. A copy of this journal entry was attached to the amended petition in error mailed to this Court on that date, and received by the Clerk for filing on January 5, 1994. The petition in error filed in June 1993 was premature, it having been filed prior to the appealable event. Aven v. Reeh, 878 P.2d 1069, 1070 (Okla. 1994). However, the supplemental petition in error is timely, since it was filed here within thirty days of the date the Journal Entry was filed in the District Court. Matter of Estate of Robinson, 885 P.2d at 1336; 12 O.S.Supp. 1993 § 990A (F). The appeal was timely brought and shall proceed.

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

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

Footnotes:

1 The style of the appeal has been corrected to conform to 20 O.S. 1991 § 3002 .

2 In response to a show cause order appellant was unable to show May 11th compliance with the "post office" rule. 12 O.S. 1993 Supp. § 990A [93-990A].(B). We also note that this verdict was prior to the enactment of 12 O.S.Supp. 1993 § 696.2 which made verdicts a non-appealable form for a judgment.

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

¶1 Today's opinion holds this appeal timely. Brought here from judgment on jury verdict, it was commenced within thirty days of the filing of a journal entry. Because the court's opinion (1) ignores extant jurisprudence

¶2 Ronnie Meadows [Meadows] brought a wrongful death action against the Pittsburg County Board of County Commissioners [County] under the authority of the Governmental Tort Claims Act [GTCA].

¶3 The dispositive issue is whether appeal time was triggered by the filing of a jury verdict on May 12, 1993 or by the January 4, 1994 journal entry.

¶4 The court rests its holding on the notion that Jaco applies only to "common law cases" and not to actions under the GTCA. Jaco holds that, under the appellate procedure regime by which this case is governed,

¶5 Today's opinion misapplies Manning's rule of prospectivity. In Manning confusion came to be injected by the trial judge's directive that, in addition to the court's own complete and signed memorial of the terminal ruling, a party's counsel prepare another journal entry.

¶6 I cannot accede to today's holding and to the order allowing the County's appeal to proceed.

Footnotes:

1 Rodgers v. Higgins, Okl., 871 P.2d 398, 411-412 (1993); Jaco Production Company v. Luca, Okl., 823 P.2d 364 (1991).

2 Okl., 876 P.2d 667 (1994).

3 51 O.S. 1991 § 151 et seq.

4 The terms of Rule 1.1(b), Rules of Appellate Procedure in Civil Cases, 12 O.S. 1991 Ch. 15, App. 2, provide in pertinent part:

". . . In computing any time period prescribed by these rules the first day shall be excluded and the last included to complete the period. When the last day of the period so computed falls on a day when the court clerk's office at which the act is to be performed or the instrument filed is not open during the full business day (until 4:00 p.m.), the period shall be extended to include the next ensuing full business day. . . ."

The terms of 12 O.S. 1991 § 990A (A) provided in pertinent part:

"An appeal to the Supreme Court may be commenced by filing a petition in error . . . within thirty (30) days from the date the final order or judgment is filed. The filing of the petition in error may be accomplished . . . by certified mail. . . . The date of the mailing . . . shall constitute the date of the filing of the petition in error. * * *"

5 Section 990A(A), supra note 4; Eagle Life Ins. Co., Inc. v. Rush, Okl., 832 P.2d 1224 (1992).

6 A litigant's right of appeal is governed by the law in effect when the appealable event takes place. Patmon v. Block, Okl., 851 P.2d 539, 542 (1993); Blacketer v. State, Okl.Cr., 485 P.2d 1069, 1070 (1971); Rudolph v. Jurgensen, 31 Okl. 32, 119 P. 640 (1911); State v. McCafferty, 25 Okl. 2, 105 P. 992, 996 (1909).

7 Jaco, supra note 1 at 364. The terms of 12 O.S. 1991 § 696.1 provided in pertinent part:

"When a trial by jury has been had, judgment must be entered by the clerk in conformity to the verdict, unless it is special, or the court order the case to be reserved for future argument or consideration." (Emphasis added.)

"There is no principle of law more firmly established than that the judgment must follow and conform to the [general] verdict [in a common-law action]." (Emphasis added.) Smith v. Eagle Mfg. Co., 25 Okl. 404, 108 P. 626, 627 (1910).

8 The terms of 51 O.S. 1991 § 153 (A) provide in pertinent part:

"The state or a political subdivision shall be liable for loss resulting from its torts . . . only where the state or political subdivision, if a private person or entity, would be liable for money damages under the laws of this state. . . ." (Emphasis added.)

Gunn v. Consolidated Rural Water & Sewer, Okl., 839 P.2d 1345, 1349 (1992).

9 Rodgers, supra note 1 at 406 n. 38.

10 The terms of 51 O.S. 1991 § 164 provide in pertinent part:

"The laws and statutes of the State of Oklahoma and the Rules of Civil Procedure, as promulgated and adopted by the Supreme Court of Oklahoma . . . shall apply to and govern all actions brought under the provisions of [the GTCA]." (Emphasis added.)

The terms of 12 O.S. 1991 § 556 provide in pertinent part:

". . . Issues of fact arising in actions for the recovery of money . . . shall be tried by a jury.. . ." (Emphasis added.)

The terms of ART. 2, § 19 , OKL. CONST., provide in pertinent part:

"The right of trial by jury shall be and remain inviolate, except in civil cases wherein the amount in controversy does not exceed One Thousand Five Hundred Dollars ($1,500.00), * * *" (Emphasis added.)

See Seymour v. Swart, Okl., 695 P.2d 509, 511-512 (1985).

11 The terms of ART 5, § 46 , Okl. CONST., provide in pertinent part:

"The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing:

* * * * * *

Regulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiries before the courts, * * *" (Emphasis added.)

12 Manning, supra note 2 at 672.