Bushert v. Hughes

SUMMERS, Justice,

concur in result but dissent in part, with whom KAUGER, Vice Chief Justice, and WATT, Justice, join.

This case offers another chance to construe the statutes by which appellate procedure was reformed effective October 1, 1993. In establishing the time by which appeals must be taken the Legislature has now effectively divided all appealable District Court orders and judgments into two groups: (1) cases where the final decision was not taken under advisement by the court, and (2) cases where the final decision was taken under advisement. In the first group time runs 30 days from the date of filing of the appealable instrument; in the second it runs 30 days from the date of mailing a file-stamped copy to the appealing party.

In today’s opinion the Court declines to recognize the plain language regarding the second group, saying to do so would be an unconstitutional abdication of judicial authority. The Court then proceeds to fashion its own regime for appeals of matters taken under advisement. I find no constitutional flaw in the Legislature’s work, but would simply follow the statute and let this appeal proceed as timely.

Here are the essential facts. Bushert sued Hughes and won at trial. Hughes filed what amounts to a motion for new trial, timely. The judge took the motion under advisement. On February 3rd the judge denied the motion, according to an unsigned court minute which was mailed to the lawyers. Bushert’s lawyer prepared a journal entry of judgment, and got Hughes’ lawyer to approve it as to form. The journal entry was filed February 16, but included no certificate that a file-stamped copy had been mailed to Hughes’ lawyer. On March 20 Hughes’ lawyer received from Bushert’s lawyer a file-stamped copy of the order. Hughes commenced his appeal April 11, in less than 30 days after he got the order but more than 30 days after it had been filed. Bushert moved to dismiss the appeal as being out of time.

The post-trial motion was timely and tolled the time to appeal from the judgment. 12 O.S.Supp.1994 §§ 653, 990.2; Brown v. Green Country Softball Association, 884 P.2d 851 (Okla.1994). An appeal may be brought by filing a petition in error within thirty days of the date of the order disposing the motion for new trial. 12 O.S.Supp.1994 § 990.2(A). The order disposing of the post-trial motion must be in the form required by 12 O.S.Supp. 1994 § 696.3 for the time to commence for filing the appeal. Brown v. Green Country Softball Association, 884 P.2d at 853. The journal entry of February 16, 1995 satisfies this criteria, and appeal time would ordinarily begin on that date.

But Hughes points out that the post-trial motion was taken under advisement, and that appeal time should not begin to run until the date the February 16th order was mailed to him. When a matter is taken under advisement and results in an appealable order adjudicated in absentia the time to commence *342an appeal “shall ran from the date of mailing of a file-stamped copy of the judgment, decree or final order to the appealing party, as indicated on the Certificate of Mailing, rather than from the date of filing.” 12 O.S.Supp. 1994 § 990.2(C). The Court recognizes that this is what the statute says, but refuses to follow it. The reason the Court gives is that the statute is unconstitutional if it allows a lawyer to “tinker” with the time to commence an appeal by determining when to file the journal entry and certificate of mailing.

A statute must be held to be constitutional unless it is clearly, palpably and plainly inconsistent with the State Constitution. Taylor v. State & Educ. Employees Group Ins. Program, 897 P.2d 275, 277 (Okla.1995) In determining whether a statute is consistent with fundamental law the statute is not construed as unconstitutional when a reasonable constitutional construction is available. Association for Equitable Taxation v. City of Oklahoma City, 901 P.2d 800, 806 (Okla.1995); Unit Petroleum Co. v. Oklahoma Water Resources Bd., 898 P.2d 1275, 1277 (Okla.1995); Simpson v. Dixon, 853 P.2d 176, 183 (Okla.1993). I believe a reasonable construction is possible.

The trial court either prepares the judgment or directs a party to prepare the judgment. 12 O.S.Supp.1993 § 696.2. The trial court is given statutory authority over the preparation and time to file the judgment. Id. at § 696.2(A). In Aven v. Reeh, 878 P.2d 1069 (Okla.1994) we explained that the trial court has discretion in setting the time for the preparation of the appealable journal entry, and where the journal entry was not prepared by the court or the victorious party, application must be made by the appellant to the trial court for relief. Id. 878 P.2d at 1071.1

A trial judge may not undo an appealable event. Lucas v. Bishop, 890 P.2d 411, 412 (Okla.1995). But a trial judge has always had the power to determine when the appeal-able event would occur in the first instance. For example, in former times when the ap-pealable event was the pronouncement of the decision the trial judge had control of the docket to determine on what day the decision would be pronounced.

In 1921 this Court explained that a statute could not mandate the time for judicial adjudication of a controversy. Atchison, T. & S.F.Ry. Co. v. Long, 122 Okla. 86, 251 P. 486, 489 (1926). See also Hambright v. City of Cleveland, 360 P.2d 493, 496 (Okla.1960), where we noted the trial court’s inherent power to supervise its docket by controlling the disposition of causes. The Court’s opinion today challenges the appellate statutes for their “standardless delegation of power”, but the creation of such standards is not within the Legislature’s power. Atchison, T. & S.F.Ry. Co. v. Long, supra. Only the trial judge exercising sound discretion determines the date for disposing of controversies on the judge’s docket.

At one time a journal entry was a “jurisdictional prerequisite” to appellate review. Johnson v. Johnson, 674 P.2d 539 (Okla.1983); Willitt v. ASG Industries, Inc., 572 P.2d 1296 (Okla.1978); 12 O.S.1981 § 32.2. We observed that the victorious party prepares the journal and “The appealing party— nearly always on the other side of the ease— has no firm control over the process.” Id., 674 P.2d at 542-543. There was an example where the appellant’s right to judicial appellate review was within the control of the opposing party.

Did we hold § 32.2 and such practice as unconstitutional because it gave one party the ability to frustrate another’s right to appellate review? We did not. We sensibly construed § 32.2 to mean that the appellant could file an application with the trial court to compel the creation of a journal entry for inclusion in the record on appeal. An appellant’s right to appellate review was protected by the appellant in the trial court. See Johnson, 674 P.2d at 542 n. 5 and Rule 1.24 of the Rules of Appellate Procedure in Civil Cases.

*343It was against this history of § 32.2 that § 696.2, § 990.2, and § 990A were enacted. Our construction of § 32.2 in Johnson included the observation that “An absurd result would doubtless flow from any other construction.” Id., 674 P.2d at 542. We said this, explaining that preparation of the journal entry within thirty days of the decision was often impossible. We adopted one construction of a statute because another created an impossibility. In today’s ease the Court leaps to the conclusion that the statute is impossible to enforce, with the result that it creates an appellate procedure contrary to statute. I respectfully find no necessity for this construction of the statute.

The failure to prepare or file a journal entry is still within the discretion of the trial court to control sua sponte, and to correct upon application of a party. The standards that govern are within the discretion of the trial court. Atchison, T. & S.F.Ry. Co. v. Long, supra. The problem in this case is not that the statutes are unconstitutional, but that the trial court declined to exercise its discretion for determining the time the journal entry was to be filed and mailed. A trial court has always had the discretion to determine when the appealable event should occur, and §§ 696.2, 990.2, and 990A are constitutional.

The Court’s opinion states that a lawyer’s act of approving a journal entry prepared by opposing counsel now imposes upon that lawyer the obligation to monitor the docket to determine the date the journal entry is filed. This philosophy is contrary to statements in three of our former opinions. We have explained that the Due Process Clause requires notice to parties that is reasonably calculated to inform them of critical stages of the judicial process. Matter of Estate of Pope, 808 P.2d 640, 642 (Okla.1990). Thus, in AT & T v. Land, 819 P.2d 716, 718 (Okla.1991) we explained due process requires that “when a matter is taken under advisement, the affected parties who appeared be given timely notice of the court’s decision.” Id., 819 P.2d at 718. This Court has not explained the exact form the notice must take, but we have stated that a lawyer is not required to monitor a trial court docket for the appealable event.

In Matter of Estate of Pope, supra, we said:

Implementing the standards and the spirit of Mullane [v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950) ] as well as its progeny, this court expressly condemned in McCullough v. Safeway “as clearly in discord with the notions of due process, state and federal” the then obtaining notion of duty to monitor the court’s docket for appeal-able events that might occur in absentia when the case was under advisement and not regularly set on the docket for pronouncement of the court’s decision.

Matter of Estate of Pope, 808 P.2d at 644, (emphasis in original and footnote omitted).

This abhorrence of placing a duty upon counsel to monitor the trial court docket was also recognized in Heiman v. Atlantic Richfield Co., 807 P.2d 257 (Okla.1991) where we stated: “There is no duty to monitor the court’s docket for appealable events.” Id., 807 P.2d at 261. See McCullough v. Safeway Stores, Inc., 626 P.2d 1332, 1334 (Okla.1981)

The Court attempts to distinguish this line of cases by stating that here both counsel were afforded notice of the trial judge’s decision before the filing the journal entry. The Court is, without calling it such, applying a theory of constructive notice to when appeal time begins to run. The Court equates knowledge of the preparation of the journal with a circumstance sufficient to put a prudent man upon inquiry as to a particular fact, that fact being the date of filing for the journal entry.2

*344In McCullough the appealable event occurred in absentia. That appealable event was rendering the decision, the date the decision was rendered was the date of notice, and the date of notice was equated with the date notice of the decision was mailed. In McCul-' lough the lawyers knew that the matter was taken under advisement, and that the appeal-able event would be forthcoming, but we declined to equate this knowledge with a duty to monitor the docket. 626 P.2d at 1334.

In a case under advisement where the trial court communicates its decision to the lawyers they know that an appealable event will occur at some time in the future. The lawyers know that an appealable order with (hopefully) a certificate of mailing will be filed. But unlike in McCullough the Court today uses this knowledge of the likelihood of a future appealable event to impose upon the lawyers a duty to monitor the docket. I cannot agree to impose such a burden on the practicing bar.3

The Court’s opinion states that in matters taken under advisement the time to appeal in some cases will begin when the order is filed. In other cases the time to appeal will begin when appellant has notice of the order’s filing. In still other cases the time to appeal will begin on the date of the Certificate of Mailing when the judge-prepared memorial and Certificate are filed and mailed in accordance with the statutes. These rules will result in considerable judicial energy being consumed on appeal to explain why some particular appeals are untimely, and others not.

No “Certificate of Mailing” was filed in this case. I do not consider that fatal to the appealability of the order. The statutes on this matter do not have identical language. Section 990.2(C) states that if an appealable order is taken under advisement the time to appeal runs from the date of mailing indicated on a Certificate of Mailing. Section 990A(A) states that if the appealable order states that it was taken under advisement the time to appeal runs from the date of mailing on the Certificate of Mailing. In § 990.2 the appealable order must be taken under advisement to extend the time to appeal. But in 990A(A) the appealable order must state on its face that the matter was taken under advisement to extend the time to appeal.

Section 696.2(B) states that in a matter under advisement the appealable order must state that the matter was taken under advisement. The order of February 16, 1995 does not state that it was taken under advisement, but the trial court record shows that the post-trial matter was in fact taken under advisement. The order does not comply with § 696.2(B).

A strict standard of compliance is not always applied to a jurisdictional statute. Graff v. Kelly, 814 P.2d 489, 495 (Okla.1991). I construe these statutes to mean that the date of mailing begins the time to appeal, but that substantial compliance with the requirement of a Certificate of Mailing will allow the date of mailing to be shown by other means when no Certificate of Mailing was filed. I would thus start appellant’s time to appeal in a case under advisement when a filed-stamped copy of the journal entry is mailed to the appellant. In this case the appellant provided proof that the appealable order was mailed on March 16, 1995. I would thus hold the appeal to be timely. I concur in the Court’s result not to dismiss this appeal, but dissent from the Court’s rationale.

. I would apply § 696.2(A) to controversies where the matter was taken under advisement and one party was directed to prepare the judgment. Section 696.2(A) states that if the journal entry "is not submitted to the court by the party directed to do so within the time prescribed by the court, then any other party may reduce it to writing and submit it to the court.”

. "Notice is either actual or constructive.” 25 O.S.1991 § 10. "Actual notice consists in express information of a fact." 25 O.S.1991 § 11. "Constructive notice is notice imputed by the law to a person not having actual notice.” 25 O.S. 1991 § 12. “Every person who has actual notice of circumstances sufficient to put a prudent man upon inquiry as to a particular fact, and who omits to make such inquiry with reasonable diligence, is deemed to have constructive notice of the fact itself.” 25 O.S.1991 § 13. See Matter of Estate of Pope, 808 P.2d 640, 646 n. 32 (Okla.1990).

. This Court could tell judges that they should impose a time limit on counsel for the preparation and submission of appealable orders. It could tell them that they should require lawyers to prepare and file the Certificate of Mailing with the approved journal entry, and that the order must include a statement that the matter was taken under advisement. We could also tell them that even when a matter is not taken under advisement a time limit for the preparation and submission of the journal entry should be set.