Vickers v. Boyd

OPALA, Chief Justice,

with whom SIMMS, Justice, joins, dissenting.

In a proceeding to review a trial court’s counsel-fee award against the plaintiff’s lawyer, Richard L. Denney [Denney], the court holds that his appeal was timely brought even though Denney is not shown as a party appellant anywhere in the petition in error or in any amendments of that document filed before the expiration of the maximum statutory time for commencing this appeal. Today’s decision rests on the rationale that the “substance of the petition in error” reveals that he is the party aggrieved by the order.1 I must recede from the court’s pronouncement. I would dismiss the petition in error as utterly inefficacious for the commencement of Denney’s appeal. Neither the caption nor the body of the petition designates this lawyer as a party appellant herein. The omission constitutes a fatal jurisdictional defect. No less authority than our nation’s highest tribunal is unequivocally committed to this mechanical norm of adjective law.2

The trial court’s counsel-fee award against Denney was for causing a mistrial. The petition in error designates as the sole relief seekers, “DORA L. VICKERS and DERWOOD VICKERS, husband and wife, Plaintiff-Appellant”. Denney’s status is shown on the face of the petition in error to be that of “attorney for plaintiff/appellant.”3 The Court of Appeals dismissed *1273the appeal because Denney, the only party aggrieved by the order sought to be reviewed, was listed neither in the body nor in the caption of the petition in error as a party appellant. I would leave that disposition undisturbed.

I

A lawyer who deems himself aggrieved by a trial court’s order imposing on him liability for counsel fees of the adversary for legal services attributable to vexatious conduct has standing to and must prosecute an appeal in his own name by a timely brought petition in error.4 The omission of an aggrieved party’s name from that instrument is in fact and in law that party’s failure to meet the jurisdietional deadline.5 It is undisputed that Denney was neither named in the caption nor otherwise identified as an appellant in the body of the petition in error filed in this case.6

This court’s reviewing cognizance is invo-cable only “in the manner provided by law.” Art. 7, § 4, Okl. Const.7 The Supreme Court is powerless to entertain a plea for corrective relief which has not been timely lodged; failure to bring a timely appeal constitutes a jurisdictional defect.8 In Torres v. Oakland Scavenger Company,9 the Court held that the “failure to name a party in a notice of appeal10 is *1274more than excusable ‘informality;’ it constitutes a failure of that party to appeal” 11

I would adopt for Oklahoma the very same rationale as that followed by our nation’s highest tribunal. It is entirely consistent not only with Oklahoma’s own procedural regime but also with the uninterrupted course of this state’s jurisprudence.

II

Today’s pronouncement allows a fatally defective petition in error12 — one in which no aggrieved party is named as party appellant on the face of the petition — to be amended after the expiration of the maximum time for the commencement of the appeal by substituting Denney for his clients as the proper party appellant. An amendment to a petition in error is permitted only to include or amplify issues raised below, not to substitute parties.13 Allowing an applicant to seek review after the lapse of maximum period allowed by law would result in an unauthorized judicial extension of the statutory time for invoking this court’s power to grant corrective relief.14 The law has never permitted one who has not timely appealed, counter-, or cross-appealed to seek corrective relief.15 I cannot hence countenance today’s substitution of Denney as party appellant.

Ill

The court’s departure from time-honored norms of appellate procedure rescues a lawyer aggrieved by a counsel-fee award from the fatal consequences of his own careless practice — i.e., from failing to list himself as a party appellant either in the body of the petition in error or in its caption — and declares him to have been a legitimate relief seeker from the very inception.16 I cannot give my imprimatur to a norm of adjective law that invites careless practice and puts a premium on ambiguity. This state’s time-honored legal tradition counsels a far more considerate treatment for those who prevail at nisi prius. Not later than on the morning of the day following the expiration of the maximum statutory time for appealing, the successful trial-court litigant clearly is entitled to be *1275afforded the means of ascertaining, from mere facial inspection of an adversary’s petition in error, the identity of those parties against whom the judgment remains subject to further review. The appealing party must provide his successful opponent with the opportunity to identify with accuracy, from the four corners of the petition in error, those litigants against whom the adjudicated obligation has become enforceable as final. Today’s pronouncement deprives judgment creditors of their minimal claim to certainty about the nisi prius judgment’s finality.

In sum, the precise identity of the appealing party or parties represents critical information the appellant is required to include either within the caption or elsewhere within the four corners of the petition in error.17 The statements in Denney’s petition in error,18 on which the court relies for its conclusion, provide no legal warrant for today’s magic transmutation of an omitted relief seeker into a timely party appellant.

CONCLUSION

In sum, because Denney is not designated as appellant either in the caption or in the body of the petition in error, I would dismiss his appeal for want of an aggrieved party appellant — one with a pecuniary interest in the corrective relief sought. In my view, the counsel-fee award against Denney became final by lapse of time when he failed to bring a timely appeal in his own name. I would hence leave the Court of Appeal’s dismissal of Denney’s appeal, undisturbed.

. The court apparently relies on these portions of the petition in error:

"B. DISPOSITION IN TRIAL COURT * * * RELIEF SOUGHT BY APPELLEE:
Attorney's fees and costs for allegedly causing a mistrial. An Order affirming the Trial Courts [sic] sustaining of their Motion to Assess Attorney's Fees and Costs against the Plaintiffs Attorney, RICHARD L. DENNEY, individually.
RELIEF GRANTED:
The Court granted a mistrial; then sustained Defendant’s Motion for Attorney's Fees and Costs, granting Defendant an award of $4,000.00, against Plaintiffs attorney, RICHARD L. DENNEY, only.”
The addition of the word "individually” following Denney’s name is not sufficient to designate him as a litigant. It means no more than that he appears in the case individually as plaintiff’s attorney.

. Procedural rules must be applied mechanically to avoid the uncertainties that arise when exceptions are created. Torres v. Oakland Scavenger Company, 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988); United States v. Indrelunas, 411 U.S. 216, 222, 93 S.Ct. 1562, 1565, 36 L.Ed.2d 202 (1973).

. In the petition in error Denney lists himself as counsel for the plaintiff/appellant:

“G. NAME OF COUNSEL
*1273ATTORNEY FOR PLAINTIFF/APPELLANT:
Name: LYDIA JOANN BARRETT ...
RICHARD L. DENNEY ...
.Firm: RICHARD L. DENNEY LAW FIRM
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. Okl., Tisdale v. Wheeler Bros. Grain Co., Okl., 599 P.2d 1104, 1106 (1979); see also Tatum v. Tatum, Okl., 736 P.2d 506, 511 nn. 20, 21 (1982).

. 12 O.S.1981 §§ 990 and 992, infra; Presbyterian Hosp. v. Bd. of Tax-Roll Corr., Okl., 693 P.2d 611, 615 (1984); Western Okl. Chapter, Etc. v. State, Etc., Okl., 616 P.2d 1143, 1147 (1980).

The pertinent terms of 12 O.S.1981 § 990 provided:

"An appeal to the Supreme Court may be commenced from an appealable disposition of a court or tribunal by filing with the Clerk of the Supreme Court a petition in error, within thirty (30) days from the date of the final order or judgment sought to be reviewed.
******
Provided, however, that in all cases the record on appeal shall be complete and ready for filing in the Supreme Court within the time prescribed by rules of that court but within a period of not more than six (6) months from the date of the order or judgment complained of unless the Supreme Court, for good cause shown, shall extend the time. Provided, further, that, except for the filing of a petition in error as provided herein, all steps in perfecting an appeal are not jurisdictional." (Emphasis added.)

Section 990 was repealed by Okl.Sess.L.1990, Ch. 251 § 20 eff. Jan. 1, 1991; see § 990A for the statutory regime that governs after June 1, 1991.

The pertinent terms of 12 O.S.1981 § 992 provide:

"Where possible, errors in perfecting an appeal must be raised promptly in the trial court, and errors in perfecting an appeal that could have been raised in the trial court may not be raised for the first time in the appellate court. The parties may waive any defect or error in perfecting an appeal except the timely filing of a petition in error....” (Emphasis added.)

The quoted portions of § 992 were not changed by the 1990 and 1991 amendments (Okl.Sess.L. 1990, Ch. 251 § 13 eff. Jan. 1, 1991; Okl.Sess.L. 1991, Ch. 251 eff. June 1, 1991).

. Denney was aware of the defect in his petition in error. He sought in the Court of Appeals to amend the petition in error to reflect in the caption his status as an appellant. There, he asserted that Rule 1.17, infra note 13, provides for the amendment of a petition in error at any time with leave of court for the correction of errors, “such as the inadvertent non-jurisdictional omission of an appellant's name from the caption of a petition in error”. ["Appellant’s Petition For Rehearing And Motion To Amend Petition In Error", p. 4]. Denney was wrong. After the lapse of maximum , time to appeal, no other party appellant may be added. Ogle v. Ogle, Okl., 517 P.2d 797, 799 (1973).

. The pertinent terms of Art. 7 § 4, Okl. Const., provide:

"The appellate jurisdiction of the Supreme Court shall be coextensive with the State and shall extend to all cases at law and in equity; * * * The appellate and the original jurisdiction of the Supreme Court and all other appellate courts shall be invoked in the manner provided by law.” (Emphasis added.)

. See authorities cited supra note 5.

. Supra note 2.

. A petition in error is Oklahoma’s counterpart of a federal-court notice of appeal. When time- , ly filed, each instrument invests the appellate *1274court with reviewing cognizance. See authorities cited in Bane v. Anderson, Bryant & Co., Okl., 786 P.2d 1230, 1238, 1241 n. 13 (1989) (Opala, V.C.J., concurring in part and dissenting in part).

. Torres v. Oakland Scavenger Company, supra note 2, 487 U.S. at 315, 108 S.Ct. at 2407 (emphasis added). In Torres a party’s name was inadvertently omitted from a notice of appeal because of clerical error made by an employee of that party's lawyer.

. Ogle v. Ogle, supra note 6 at 799, holds that after the maximum time for an appeal’s commencement no party appellant may be substituted for one who is without appealable interest.

. Tisdale v. Wheeler Bros. Grain Co., Inc., supra note 4 at 1106; Ogle v. Ogle, supra note 6 at 799. See also, State v. County Beverage License No. ABL-78-145, Okl., 652 P.2d 292, 294-295 (1982); Rule 1.17, Rules on Perfecting a Civil Appeal, 12 O.S.1981, Ch. 15, App. 2, provides in part:

"(a) Time and extent of amendment
The petition in error may be amended at any time before brief in chief is filed, or thereafter by leave of court, to include any error or any bsue presented to and resolved by the trial court which b supported by the record, _" (Emphasis mine.)

The quoted part of Rule 1.17 was not changed by amendment of Dec. 20, 1990, eff. Jan. 1, 1991.

. See the authorities cited supra notes 5 and 7; Rule 1.15(a), Rules of Appellate Procedure in Civil Cases, 12 O.S.Supp.1985, Ch. 15, App. 2, which provided: “The petition in error shall be filed within thirty days from the final judgment or final order; ... The interval allowed for filing a petition in error may not be extended by either the trial tribunal or thb Court...." (Emphasis added.) The quoted portions of Rule 1.15 were amended December 20, 1990, eff. Jan. 1, 1991 and March 1, 1991.

. See State v. County Beverage License No. ABL-78-145, supra note 13 at 294-295; May v. May, Okl., 596 P.2d 536, 540 (1979); Ogle v. Ogle, supra note 6 at 799; Holshouser v. Holshouser, 166 Okl. 45, 26 P.2d 189 (1933) (syllabus 2); Sharum v. City of Muskogee, 43 Okl. 22, 141 P. 22 (1914) (syllabus 1); see also Price v. Reed, Okl., 725 P.2d 1254, 1261 n. 29 (1986); Nilsen v. Tenneco Oil Co., Okl., 614 P.2d 36, 39 (1980); cf. Woolfolk v. Semrod, Okl., 351 P.2d 742, 745 (1960) (a successful party may, without a counter- or cross-appeal, argue before an appellate court only those errors which, if rectified, would support the correctness of the trial court's judgment).

. See supra note 3.

. This is the clear mandate of this court’s April 3, 1972 order which implements the provisions of 20 O.S.1971 § 3002. The order expressly enjoins that “[t]he appealing party shall be designated in the caption as ‘Appellant’ ..." (Emphasis mine.)

"The terms of 20 O.S.1991 § 3002 are:

"The designation of parties in the caption of any cause appealed to the Supreme Court or the Court of Criminal Appeals shall correspond with the sequence in which the designation of the parties appeared in the trial court case.”

The court's April 3, 1972 order provides in part:

" * * * The appealing party shall be designated in the caption as 'Appellant1, the party defending the judgment of the trial court as 'Appellee.’ The designation 'Plaintiff in Error’ and ‘Defendant in Error' shall no longer be used in the caption after April 5, 1972.

. See infra note 1.