Aven v. Reeh

OPALA, Justice,

with whom LAVENDER, V.C.J., joins and SIMMS, Justice, joins in part, dissenting.

Concluding that the appellant’s petition in error was prematurely brought, the court today holds that the filed memorial, here in contest, failed to meet the 12 O.S.1991 § 241 standards for entry on the journal and the 12 O.S.1993 § 696.3 criteria2 for triggering appeal time. The court dismisses the filed memorial of the court’s ruling of December 6, 19933 as a minute rather than a summary *1072judgment.4 I cannot accede to the court’s reasoning.

I

THE SUBSTANTIVE CONTENT OF THE DECEMBER 6 MEMORIAL DETERMINES WHETHER IT QUALIFIES AS A SUMMARY JUDGMENT OR AS A MINUTE.

The meaning and effect of an instrument depends on its substantive content,5 The filed paper clearly meets the attributes of a recordable memorial. Its content directs that the defendants be given the requested relief — ie., dismissal with prejudice — and the “direction” is signed by the judge.

While both judgments and minutes6 are posted on the appearance docket,7 each has a distinct legal identity8 and is facially distinguishable from the other by its content and substance.9 A “minute” of a judge’s courtroom ruling internalizes the event or proceeding by a short abstract to be posted solely on the court’s appearance docket. It is not the event’s official proof. For external use that proof is provided by the “recordable” 10 memorial that is on file in the case and entered on the journal.

*1073Minutes are never a fit substitute for a judge’s recordable entry.11 Record entry of orders or judgments may never be accomplished by the clerk’s minutes or by unsigned (or initialed) entries later posted on the appearance docket.12. While a judge, much like a courtroom deputy clerk, may write minutes for posting on the appearance docket, once the minutes are signed by the judge and meet the criteria prescribed in § ¾, they are at once, by force of law, transmuted into recordable memorials. After September 30, 1993 the filing of a recordable memorial meeting the § 696.3 criteria — in this case the December 6 summary judgment — begins the 12 O.S.1991 § 990A13 countdown for commencing an appeal.

The December 6 entry’s content and substance qualify it as a summary judgment rather than a minute. If the four corners yielded no more than an unsigned or initialed recitation of the events that transpired at trial,14 my conclusion would be different. The judge-signed instrument in contest clearly grants the defendants summary judgment, judicially determining the parties’ rights in the action. By application of the §§ 2U and 696.3 standards, the December 6 judgment is recordable and, once filed, triggers appeal time. It precludes all further inquiry into the issues joined by the pleadings.15 Nothing remains to be done.16 Facial examination of this instrument does not reveal any indication that the judge intended a more complete instrument to follow.17 In short, the December 6 entry is the filed judgment18 which may not be transmogrified into a minute by the judge signing the memorial at a place other than the bottom of the instrument.

II

JUDGES ARE REQUIRED TO SIGN, NOT SUBSCRIBE, INSTRUMENTS TO MAKE THEM FIT FOR ENTRY ON THE COURT’S JOURNAL.

The court voids the filed and recorded December 6 judgment19 by holding it to be an ineffective memorialization of the ruling, a mere minute. Today’s opinion rests on the conclusion that because the instrument is *1074signed, but not “subscribed”,20 by the trial judge, it is a minute. There is no basis in law for this court-imposed requirement of subscription.21 The common law defines “signature” as the placement of a name anywhere upon a document for the purpose of authenticating it.22 Here the nisi prius judge’s signature authenticates the judgment on the face of the memorial. It hence meets the § 24 requirement for entry on the journal.

Ill

BECAUSE THE DECEMBER 6 SUMMARY JUDGMENT COMPLIES SUBSTANTIALLY WITH THE REQUIREMENTS OF § 696.3, IT TRIGGERS APPEAL TIME

It is the filing of an instrument that substantially complies with the § 696.3 criteria23 which triggers appeal time under that section’s most recent (1993) version.24 The memorial25 in contest facially includes the name of the court, the designation of the parties, the file number of the case, a title [“Order”], the relief granted, and the signature of the judge. It substantially satisfies the § 696.S criteria for triggering appeal time.

IY

CONCLUSION

The court today construes § 696.3 as requiring that the conforming memorial not only must be signed by the judge but also must be “subscribed”. It engages in indiscriminate labeling by holding that the nisi prius memorial of the December 6 summary judgment is a minute. A memorial of a judgment, which meets substantially the criteria of both 12 O.S.1991 § 2⅛ and 12 O.S. 1998 § 696.8, should be recognized as the sole recordable entry for the judgment roll which memorializes the decision and triggers appeal time. Judgments and orders failing to meet both sections’ standards should not be recorded. As the December 6 memorial substantially satisfies the § 696.3 criteria for filing, it is hence the appeal-time trigger.

I would not dismiss the appeal but would apply my analysis prospectively to govern only those cases in which the appealable event occurs after the effective date of this pronouncement.26

.See 12 O.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.]

. 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;

. The pertinent terms of the memorial of December 6, 1993 are:

STATE OF OKLAHOMA
DISTRICT COURT IN & FOR TULSA COUNTY ORDER
On this 6th day of Dec., 1993, the following matters in the designated cases came on for decisions, pursuant to the Rules of the District Court for Tulsa County. The Clerk of the Court is directed to notify counsel of record of the indicated decisions by mailing a copy of the Order to them and filing a copy of the Order in each case.
/s/ David L. Peterson
David L. Peterson
District Judge
CJ-93-4599 JOSHUA ALAN AVEN V RICHARD REEH, ET AL. Defendant Reeh and In-body's motions to dismiss are granted with *1072prejudice. Notice mailed to: Richard K. Holmes, Joe Farris, Joshua Aven.
[[Image here]]
AFFIDAVIT OF MAILING
I hereby certify that I have this 7th day of Dec., 1993 mailed a true and correct copy of the above decision(s) as ordered by the Court, and a true and correct copy was filed in each of the above foregoing cases.
SALLY HOWE-SMITH, Court Clerk
/s/ Marianne Moffett
Marianne Moffett
Deputy Court Clerk
[Emphasis added.]

. Here the defendants in support of their motions to dismiss under 12 O.S.1991 § 2012(B)(6) submitted materials outside the record. Under our pleading regime (the Oklahoma Pleading Code, 12 O.S.1991 §§ 2001 et seq.), if a dismissal motion tenders for consideration any materials dehors the pleadings in the case at bar, summary judgment procedure must be utilized. See in this connection, Dyke v. Saint Francis Hospital, Okl., 861 P.2d 295, 299 (1993); Norman v. Trison, Okl., 832 P.2d 6, 8 (1992); Silver v. Slusher, Okl., 770 P.2d 878, 881 n. 8 (1988).

. 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).

. 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, 1 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 7.

. 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 arc 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.]

. Rodgers v. Higgins, Okl., 871 P.2d 398, 407-408 (1993); Hulsey 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 n. 8 (1981); State v. Froese, 200 Okl. 486, 197 P.2d 296, 298 (1948).

. See supra note 3.

. "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 *1073entry or preservation. See Rodgers, supra note 8 at 408-409.

. 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 8 at 1034; Wetsel v. Independent School District I-1, Okl., 670 P.2d 986, 993 (1983); McCullough, supra note 8 at 1335.

. 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).

. The pertinent terms of 12 O.S.1991 § 990A are:

"A. 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.”
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. 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).

. Carr v. Braswell, Okl., 772 P.2d 915, 917 (1989); Hurley v. Hurley, 191 Okl. 194, 127 P.2d 147, 150 (1942); Wells v. Shriver, 81 Okl. 108, 197 P. 460, 465 (1921).

. Wells, supra note 15, 197 P. at 460 n. 3; Foreman v. Riley, 88 Okl. 75, 211 P. 495 n. 4 (1923).

. A judge’s letter to the parties announcing his intention to decide the cause for the plaintiff and requesting the parties to prepare a journal entry memorializing the decision is not a judgment. Green v. Mee, 197 Okl. 562, 173 P.2d 217, 218 (1946). See also the Oct. 4, 1993 unpublished opinion in Taylor Estates v. Meridian Oil, Inc., Cause No. 81,789 consolidated with No. 82,010; July 18, 1992 unpublished opinion in Caswell v. Caswell, Cause No. 79,463. In the cited cases, where the court was called upon to decide which of two writings was the judgment, it was facially apparent from the first writing that the judge intended a later memorial to be the judgment. Here, the December 6 instrument not only meets all the attributes of a judgment, but also facially lacks any indication that the trial court did not intend the writing to be its judgment.

. See 12 O.S.1991 § 990A, supra note 13, which provides that the filed judgment triggers appeal time.

. See supra note 3 for the pertinent terms of the court's judgment.

. Subscription is the writing of one's name beneath or at the end of the instrument. Munson v. Snyder, Okl., 275 P.2d 249, 250, 252 (1954); Wilson v. Polite, 218 So.2d 843, 849 (Miss.1969); In re George's Estate, 208 Miss. 734, 45 So.2d 571, 573 (1950); Corporation Commission v. Wilkinson, 201 N.C. 344, 160 S.E. 292, 294 (1931); Attorney General v. Clarke, 26 R.I. 470, 59 A. 395, 396 (1904).

. The clerk is required by § 24 [supra note 1] to enter “all instruments filed in the case that bear the signature of the judge...." [Emphasis added.]

. In re Thomas' Estate, 243 Mich. 566, 220 N.W. 764, 765 (1928); Drury, et al. v. Young, 58 Md. 546, 553-54 (Md.1882); Smithdeal v. Smith, 64 N.C. 52, 53 (N.C.1869); Anderson v. Harold, 10 Ohio 400, 402 (Ohio 1841); Schneider v. Norris (1814), 105 Eng.Rep. 338. The common law distinguishes signature from subscription by the fact that the former is not "confined to the writing of the name at the bottom of the paper.” Loughren v. B.F. Bonniwell & Co., 125 Iowa 518, 101 N.W. 287 (1904).

. See supra note 2 for the § 696.3 requirements.

. 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 supra note 3 for this instrument’s text.

. Since the counsel I offer addresses a less than crystal-clear point of procedure, it should be applied prospectively under the teachings of Poafpybitty v. Skelly Oil Company, Okl., 394 P.2d 515, 520 (1964), and its progeny. See Hale v. Bd. of Cty. Com’rs. of Seminole Cty., Okl., 603 P.2d 761, 764 (1979); Isbell v. State, Etc., Okl., 603 P.2d 758, 760 (1979) (Opala, J., concurring specially); Heimbach v. Guiney, Okl., 827 P.2d 170 (1992).