Before 2019, the Oklahoma Supreme Court Rules had not been amended since 2014. Between 2019 and 2022, the court amended eight of its rules and added two new rules. This article provides a summary of those rule changes.

RULE 1.4(C)

              Rule 1.4(c) provides that a “petition in error, petition for review, or petition for certiorari may be filed either by delivery to the Clerk of the Supreme Court, or by deposit with the United States Postal Service, or by delivery with a third party commercial carrier.”[1] When mailing petitions in error, petitions for review or petitions for certiorari to the Oklahoma Supreme Court for filing using the United States Postal Service or a third-party commercial carrier, practitioners must be cognizant of the court’s rules regarding when such documents are considered timely filed.[2]

              Rule 1.4(c) was amended by the court on May 3, 2021, to clarify that when a filer uses a third-party commercial carrier to mail a petition in error, petition for review or petition for certiorari, the filer must also ensure that either the cost deposit or a properly executed pauper’s affidavit “has also been mailed or received by the commercial carrier, conforming to the same requirements for mailing or receipt by the commercial carrier.”[3] If the filer fails to include the filing fee or pauper’s affidavit with the mailing, the filer must ensure “such cost deposit or affidavit is actually delivered to the Court Clerk within the time period for perfecting the appellate procedure.”[4] If not, “The petition in error will not be considered timely filed.”[5]

              However, the court also amended Rule 1.4(c) to clarify, “The determination of whether or not a petition in error is timely will be made by the Supreme Court.”[6] This amendment, in practice, simply means the clerk’s office will file the petition regardless of whether the cost deposit or pauper’s affidavit is included. If the cost deposit or pauper’s affidavit is not received or not timely received, the case will be sent to the conference for a determination as to whether the petition must be dismissed for untimeliness.

RULE 1.5

              Rule 1.5 was amended by the court on June 27, 2022, to mandate that “corporate entities including corporations and limited liability companies that are parties to actions in the Supreme Court or Court of Civil Appeals” can only proceed “if represented by counsel licensed to practice law.”[7] The rule change also clarifies that an “unlicensed individual” cannot “enter an appearance or represent any corporate entity in a case before the Supreme Court or the Court of Civil Appeals.”[8] Failure to follow this rule “will result in dismissal of the case or a bar to participate in the proceeding, including striking filings from the record.”[9]

              Although the rule change on its face seems obvious, two recent cases – neither of which resulted in any published orders or opinions – may be the catalyst behind the court’s amendment to the rule. In case number 120,303, “Nina J’s Dispensary, LLC, Pitts, Antonio W. d/b/a Antonio W. Pitts” filed a petition in error, seeking review of a dismissal order in the district court.[10] “Antonio W. d/b/a Antonio W. Pitts” was not a party to the underlying proceeding involving Nina J’s Dispensary LLC.[11]

              The court entered an order noting the “petition in error, paupers affidavit, and entry of appearance are signed by Antonio W. Pitts pro se, but that the plaintiff appellant is Nina J’s Dispensary LLC.”[12] The court also noted, citing Massongill v. McDevitt,[13] “A non-lawyer individual may represent himself or herself pro se in any proceeding where that individual is a party, but the individual appearing pro se may only represent himself or herself. An individual who is not an attorney may not appear as legal counsel on behalf of another party or entity.”[14] The appeal was eventually dismissed for Nina J’s failure to obtain “an attorney licensed to practice law in Oklahoma enter an appearance in this Cause” and for Nina J’s failure to “respond or otherwise comply with the Court’s other orders.”[15]

              In case number 119,160, a petition in error was filed by “Dr. Elias Quintana, Pro Se” on behalf of the appellant “TransNational Bus & Coach, LLC.”[16] The court, again citing Massongill, entered an order directing TransNational Bus & Coach LLC to file an entry of appearance “by an attorney licensed to practice in this state” and advising TransNational that “any future filings on behalf of TransNational Bus & Coach, LLC that are not signed by an attorney for Transnational Bus & Coach will not be considered.”[17] TransNational Bus & Coach eventually complied with the court’s order and obtained an attorney to represent it in the appeal. The case proceeded, and the Court of Civil Appeals issued a decision on June 24, 2022.

RULE 1.18

              Rule 1.18 is a new rule adopted on May 20, 2019, by the Oklahoma Supreme Court. The rule addresses prisoner filings, mirroring 57 O.S. §566.2(A). Section 566.2 allows the court administrator of the Oklahoma courts to maintain a registry of those prisoners who have had any cases “dismissed as frivolous or malicious or for failure to state a claim upon which relief can be granted.”[18] Rule 1.18 directs that when a prisoner who appears on the registry three or more times “initiates an original action or an appeal filed with the Supreme Court without prepayment of all fees required by law, the Clerk shall file and docket the original action or appeal and forward the filings to the Chief Justice for review.”[19]

              Of note, Rule 1.18 provides the Supreme Court “will direct the prisoner to show cause why the matter should be allowed to proceed without prepayment of all fees as required by law.”[20] The rule then allows the chief justice to summarily dismiss the proceeding “[i]f the prisoner fails to show adequate cause.”[21] In practice, this rule allows the chief justice to deal with these matters without having to send the case to the conference for a summary dismissal.

RULE 1.19

              Rule 1.19 is also a new rule adopted by the court on June 24, 2019, and addresses the use of credit cards, debit cards and other electronic payments to the appellate court clerk.[22] Before the adoption of this rule, the Supreme Court Clerk’s Office did not accept credit or debit cards for payment of any type of filing fee or cost. Rule 1.19 now allows for payment to be made “for any fee, fine, forfeiture, cost, penalty assessment or other charge or collection” by “a nationally recognized credit or debit card.”[23] The rule specifically states the court now accepts “Visa, MasterCard, Discover and American Express,” and debit cards “will be processed as a credit card without the use of a PIN number.”[24]

              Also included in Subsection (c) of Rule 1.19 are instructions for those filers who want to file pleadings by mail but also want to pay the associated fees by credit or debit card.[25] Practitioners should note the court created a new form, Form No. 4A, that must be included with the initial pleadings when filed.[26] The “form 4A affidavit” must be received on or before the due date to ensure the initial pleadings in the case are considered timely filed.[27]

RULE 1.21(A)

              Rule 1.21 addresses the computation of time for the commencement of an appeal. Subsection (a) governs appeals from the district court. The court amended Subsection (a) to address confusion about what constitutes a final “judgment, decree, or appealable order” under 12 O.S. §§696.2-696.3 for purposes of triggering appellate filing deadlines. The amendment to Rule 1.21(a) came shortly after the court’s 2021 decision in Moore v. Haley.[28] In Moore, Mother filed a motion to resume visitation in a family law matter in the district court of McClain County. The trial court granted the motion. Father filed a motion to vacate. The trial court denied the motion to vacate, and Father appealed. Attached to Father’s petition in error was a handwritten summary order.

              Mother filed a motion to dismiss the petition in error with the Oklahoma Supreme Court, arguing, among other grounds, that the summary order attached to the petition in error did not meet the statutory requirements for a final, appealable order. The summary order attached to the petition in error did not contain the full caption of the case, the full names of the parties or counsel appearing or the full name of the assigned judge. Although the court overruled Mother’s motion to dismiss the appeal to allow Father an opportunity to secure a statutorily compliant final journal entry of judgment, the court made clear its disdain for summary orders:

              Many times, Summary Orders are illegible and may be followed with a formal, typed Journal Entry of Judgment. This creates uncertainty for litigants and the appellate courts about the finality of the Summary Order, and the computation of appeal time. Sometimes Summary Orders may include language indicating a subsequent order should follow and other times they do not. The Summary Orders typically do not contain evidence of service on the parties. The title of the document “Summary Order” denotes that this is an abbreviated account of the ruling of the court conducted without legal formalities.[29]

              The court concluded by giving lawyers and parties notice that summary orders will no longer be recognized as a final, appealable order: “The use of the Summary Order form has long created problems and confusion for the appellate courts and a hardship on the parties attempting to appeal from a final order. … Prospectively, we will not recognize a filed Summary Order as a final judgment under 12 O.S. 2011 § 696.3.”[30]

              The court subsequently amended Rule 1.21(a) to make clear what is not considered an appealable order:

              An appeal from the district court may be commenced by filing a petition in error with the Clerk of the Supreme Court within thirty days from the date the judgment, decree, or appealable order prepared in conformance with 12 O.S. § 696.3 was filed with the clerk of the district court.[31]

              The following shall not constitute a judgment, decree or appealable order: minute orders or minute entries; docket entries or docket minutes; a verdict; an informal statement of the proceedings and relief awarded, including, but not limited to, summary orders or summary minutes, or a letter or other writing to a party or parties indicating the ruling or instructions for preparing the judgment, decree or appealable order.[32] [33]

              Following the amendment to Rule 1.21(a), the court in Laubach v. Laubach[34] put what appears to be the final nail in the coffin for “minutes” and “minute orders” – at least with regard to whether such entries are appealable. After Mother and Father divorced, Mother sought approval from the trial court to move across the state with the couple’s children. Father objected, and among numerous orders issued by the trial court in the case was a “minute” dated and filed in the case on April 17, 2018. Father attached the minute to his petition in error (filed nearly 10 months after the minute was filed), along with two other orders issued by the trial court. The case was assigned to the Court of Civil Appeals.

              The Court of Civil Appeals dismissed that portion of Father’s appeal related to the minute as untimely. The court concluded that the minute was “intended as a final determination of Father’s April 6, 2018 motion to modify and Mother’s May 15, 2017 request to relocate with the children,” and the trial court did not direct the parties to prepare a final journal entry of judgment.[35] Because the minute was an appealable order, the Court of Civil Appeals concluded that Father’s appeal of that order was untimely. Father petitioned for certiorari review, and the Oklahoma Supreme Court granted certiorari for the limited purpose of addressing the appealability of such court minutes, minute orders, minutes and summary orders.

              The court “again definitively pronounce[d]” that “written instruments titled ‘court minute,’ ‘minute order,’ ‘minute,’ or ‘summary order’ cannot meet the definition of an order which triggers the procedural time limits for appeal, regardless of their substance, content, for length.”[36] The court found that the Court of Civil Appeals erred when it determined the April 17, 2018, minute order was an appealable order for purposes of triggering the procedural time limits for appeal.[37] The court remanded the matter to the Court of Civil Appeals to consider the subsequent “orders and the merits of the father’s appeals.”[38]

RULE 1.23

               Rule 1.23 addresses what a party must do to commence an appeal from a final judgment of the district court. On May 3, 2021, the court amended Rule 1.23. Subsection (a)(2) was amended to clarify and allow “cost deposits” to be paid by check or “a nationally recognized credit or debit card or other electronic payment method pursuant to Rule 1.19.”[39] A new Subsection (a)(3) was also added to address parties who seek to proceed in forma pauperis:

              (3) A party who was permitted to proceed in forma pauperis before the lower court or other tribunal may proceed on appeal in forma pauperis, so long as a file-stamped copy of the order approving in forma pauperis status granted by the lower court or other tribunal is attached to the petition in error. If the party first seeks to proceed in forma pauperis in the appellate court, the affidavit in forma pauperis shall be filed with the petition in error, and shall be in substantial compliance with the form prescribed by Rule 1.301, Form No. 4.[40]

              Finally, Rule 1.23(b) was amended to require the court clerk to file all petitions in error “upon receipt.”[41] In practice, the court clerk must now file a petition in error even if the cost deposit or pauper’s affidavit is not included. If the cost deposit or pauper’s affidavit is not timely received, the case will be sent to the conference to determine whether the petition in error was timely.[42]

RULE 1.27(A)

              Rule 1.27(a) was amended Oct. 21, 2019, and provides that a cross-appeal or counter-appeal must now be filed within 30 days “from the date the petition in error is filed by the Appellant in the same case.”[43] Practitioners should note that this amendment is a significant change from the prior rule. Previously, a cross- or counter-appeal had to be filed within 40 days of the date the judgment was filed in the district court. With this amendment, the triggering event to file a cross- or counter-appeal is now the filing of the appellant’s petition in error:

              (a) Cross-Appeal or Counter-Appeal.

              If a petition in error has been timely filed to commence an appeal from an appealable decision, then a party aggrieved by the same decision may file a cross or counter petition in error within forty (40) days of the date the judgment was filed with the district court clerk. thirty (30) days from the date the petition in error is filed by the Appellant in the same case. Failure to file within the time allowed will result in the dismissal of the cross or counter appeal.[44]

RULE 1.60

              Rule 1.60 of the Oklahoma Supreme Court Rules defines “interlocutory orders appealable by right.”[45] Interlocutory orders appealable by right are those orders that, although not final, are statutorily defined as orders that may be appealed before the final order is entered in the case. A few examples, although not exhaustive, include certain orders issued in a probate proceeding, orders certifying or refusing to certify a class action and orders appointing or refusing to appoint a receiver.[46]

              Rule 1.60 was amended Oct. 8, 2019, to add a new Subsection (j) so “[t]emporary orders of protection made in proceedings pursuant to the Protection From Domestic Abuse Act, 22 O.S. §§ 60 et seq” are now interlocutory orders immediately appealable by right.[47] No other changes were made to Rule 1.60, and the expedited timeframe for completing the record and the shortened briefing cycle remain in place.[48]

RULE 1.200(C)

              Rule 1.200 addresses the manner and form of opinions in the Oklahoma Supreme Court and Court of Civil Appeals.[49] On June 27, 2022, the court made several amendments to Subsection (c) of Rule 1.200.[50] The first amendment was to 1.200(c)(2), which deals with motions to publish memorandum opinions and unpublished opinions. The court amended the rule to limit the time to file a motion to publish to “not later than 20 days after the issuance of mandate” in the case.[51] The court also amended Rule 1.200(c) to include a new Subsection (3), which requires a petition for certiorari to be timely filed before a motion to publish can be filed:

              (3) No party or other interested person may request the publication of any Court of Civil Appeals opinion unless certiorari review was first timely sought by a party, pursuant to Rule 1.179, prior to the request for publication. Motions to withdraw an opinion from publication are subject to the same limitations set forth in (c) (2) & (3).[52]

              And finally, the court amended Rule 1.200(c) to now allow practitioners to cite unpublished opinions from the Court of Civil Appeals in briefs and “other material presented” to a court.[53] Although the rule makes clear that unpublished opinions still have no precedential effect, this amendment is significant for practitioners, as the majority of opinions issued by the Court of Civil Appeals are unpublished. Practitioners can now cite those unpublished opinions as persuasive authority without fear of violating the court’s rules.

              It should be noted, however, that the amendment requires practitioners to provide a copy of the opinion or a hyperlink as those unpublished opinions are not currently collected on any official court database: “Any brief or other material presented to any court which includes a reference or citation to an unpublished opinion, shall also include a copy or hyper-link to the unpublished opinion.”[54]

CONCLUSION

              The recent uptick in amendments to the court’s rules indicates the court may be in the process of modernizing its rules. Because the court’s rules can often be difficult to navigate, even for a seasoned practitioner, the bench and bar will want to keep a close eye on changes to the court’s rules in the coming years.

ADDITIONAL RECENT AMENDMENTS

Rule 1.11 – Form and Content of Briefs (Amended effective Nov. 14, 2022)

              Rule 1.11 was amended to specify font size and spacing for footnotes in briefs: “Footnotes shall also be in clear type not less than 11-point font and may be single spaced lines. Briefs will be stricken or footnotes will be disregarded where a footnote raises a substantive argument or where a party's use of footnotes is abusive or an attempt to circumvent the 30-page length requirement.”

Rule 1.21 – Computation of Time for Commencement of Appeal (Amended effective Dec. 1, 2022)

              Subsection (f) of Rule 1.21(f) was also amended to address appeals from the termination of parental rights. The following subsections were added to address timeliness of petitions in error filed in a parental termination appeal:

              (2) A party who wishes to challenge the termination of parental rights is entitled to the effective assistance of counsel at trial, as well as in perfecting any appeal. 10A O.S. § 1-4-306(A); Matter of J.L.O., 2018 OK 77, ¶35, 428 P.3d 881; Supreme Court Rules 1.4, 1.23(a)-(d); Oklahoma Rules of Professional Conduct, 5 O.S., Ch. 1, App. 3--A; cf. Abels v. Kaiser, 913 F.2d 821 (10th Cir. 1990).

              (3) If, through no fault of the appealing party, the Petition in Error is not timely filed, the party may file a motion with the trial court seeking an order recommending a late appeal. The motion shall detail why the party believes their inability to timely file an appeal was through no fault of their own. A copy of the motion shall be served on all other parties, who may respond to the request.

              (4) The trial court may hold a hearing on the matter if necessary. The trial court shall issue, and file with the district court clerk, an order containing findings of fact and a conclusion as to whether a late appeal should or should not be granted by this Court. A file-stamped copy of that order shall be served on all parties.

              (5) Within thirty days after the filing of that order, the party seeking a late appeal shall file a Petition in Error in this Court including a file-stamped copy of the order. Whether or not a late appeal is granted will be determined by this Court.

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ABOUT THE AUTHOR

Jana L. Knott joined Bass Law in 2018, where her practice focuses primarily on appellate litigation, advocacy and consultation. She also provides district court level brief-writing and complex motion-writing to other lawyers and firms in all areas of the law, including trust and estate disputes, business disputes, oil and gas litigation, municipal law and real property disputes.

 

 

 

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ENDNOTES

[1] Okla. Sup. Ct. R. 1.4(c).

[2] Rule 1.4 has several nuances that often trip up practitioners. For example, Rule 1.4(c) provides, “When a petition is mailed through the United States Postal Service, a postmark date from a privately owned postage meter or commercial postage meter label will not suffice as proof of the date of mailing.” Okla. Supt. Ct. R. 1.4(c) (emphasis added). If the party cannot provide “other proof of date of mailing from the United States Postal Service, a document bearing only such a postmark will be deemed filed upon date of delivery to the Clerk.” Id.

[3] In re Amendment of Rules 1.4 and 1.23 of Okla. Sup. Ct. Rules, 2021 OK 23, Ex. A.

[4] Id.

[5] Id.

[6] Id.

[7] In re Amendment of Rules 1.5 and 1.200 of Okla. Sup. Ct. Rules, 2022 OK 70, Ex. A.

[8] Id.

[9] Id.

[10] Nina J’s Dispensary, LLC v. Raja Ijaz, LLC, Raja Ahmed, Case No. 120,303, Pet. in Error (Apr. 1, 2022).

[11] Id.

[12] Id., Order (April 11, 2022).

[13] 1989 OK CIV APP 82, 828 P.2d 438.

[14] Id.

[15] Id., Order (June 13, 2022).

[16] America’s Car Mart, Inc., v. Transnational Bus & Coach, LLC, Case No. 119,160, Pet. in Error (Nov. 2, 2020).

[17] Id., Order (Nov. 3, 2020).

[18] 57 O.S. §566.2(8).

[19] In re Creation of Rule 1.18 of Okla. Sup. Ct. Rules, 2019 OK 38, Ex. A.

[20] Id.

[21] Id.

[22] In re Establishment of Rule 1.19 of Okla. Sup. Ct. Rules, 2019 OK 51, Ex. A.

[23] Id.

[24] Id.

[25] Id.

[26] Id., Ex. B.

[27] Id., Ex. A.

[28] 2021 OK 37, 505 P.3d 918.

[29] Moore, 2021 OK 37, ¶3, 505 P.3d at 919.

[30] Id., ¶4, Id. at 919.

[31] 12 O.S. §990A.

[32] 12 O.S. §696.2.

[33] The underlined portion reflects what was added to the rule by the court. See In re Amendment of Rule 1.21 of Okla. Sup. Ct. Rules, 2021 OK 41, Ex. B.

[34] 2022 OK 78, ___P.3d___.

[35] Laubach v. Laubach, Case No. 117,545 at 14 (Oct. 18, 2021) (unpublished) (vacated).

[36] Laubach, 2022 OK 78, ¶14 (emphasis added).

[37] Id., ¶15.

[38] Id.

[39] In re Amendment of Rules 1.4 and 1.23 of Okla. Sup. Ct. Rules, 2021 OK 23, Ex. A.

[40] Id.

[41] Id.

[42] Rule 1.23(b) now reads as follows: 

Timely Costs Mandatory. All petitions in error shall be filed upon receipt. When a petition in error is received by the Clerk of the Supreme Court, will not be filed and until the entire cost deposit, or a properly executed pauper's affidavit shall be received by the Clerk of the Supreme Court is due at the time of filing with the Clerk of the Supreme Court. The cost deposit or pauper's affidavit must be received by the Clerk of the Supreme Court within the same thirty-day period for filing the petition in error (12 O.S. § 990A(A)) for the tendered petition in error to be considered as timely filed to commence an appeal. The determination of whether or not a petition in error is timely will be made by the Supreme Court. In an appeal brought by the State of Oklahoma, or by direction of any department of the State, cost deposit shall not be paid with the filing of the petition in error. 12 O.S. § 66.

[43] In re Amendment of Rule 1.27(a) of Okla. Sup. Ct. Rules, 2019 OK 67, Ex. A.

[44] Id.

[45] Okla. Sup. Ct. R. 1.60.

[46] See id.

[47] In re: Amendment to Oklahoma Sup. Ct. R. 1.60, Ex. A.

[48] See id.

[49] Okla. Sup. Ct. R. 1.200.

[50] In re Amendment of Rules 1.5 and 1.200 of Okla. Sup. Ct. Rules, Ex. B.

[51] Id. Rule 1.200(c)(2) now reads:

2) A party or other interested person who believes that an opinion of either the Supreme Court or Court of Civil Appeals which has not been designated by the Court for publication has substantial precedential value may file a motion in the Supreme Court. The motion asking that it be published shall be filed not later than 20 days after the issuance of the mandate in that case. The filing of the motion shall not affect the issuance of the mandate. The motion shall state the grounds for such belief, shall be accompanied by a copy of the opinion, and shall comply with Rule 1.6.

[52] Id.

[53] Id.

[54] Id.