Oklahoma Bar Journal
Appealable Orders: Asking the Key Questions
By Ann Hadrava
The Oklahoma Supreme Court reviews incoming appeals for jurisdictional purposes. This is also known as the court’s inquiry into its appellate jurisdiction.1 Whether you are a practitioner who is filing your first appeal or a practitioner who regularly files appeals, you may find it helpful to know how an appeal crosses the court’s jurisdictional hurdle. It involves asking the three questions below.
THREE KEY QUESTIONS
While there are different types of appeals, this article focuses on a general civil appeal from a district court order. Obviously, for other appeals you will want to consult the Oklahoma Supreme Court Rules and applicable statutes.2 With each general appeal the questions for the court are:
- Is there an order prepared in conformance with 12 O.S. §§696.2 and 696.3? In other words, is the order properly memorialized?3
- Is the appeal timely commenced?
- 30-day requirement for regular appeals pursuant to 12 O.S. §990A;4
- 20-day requirement for workers’ compensation petition for review;5
- 40-day requirement for regular counter-appeals;6 and
- For other types of appeals check the court’s rules.7
- Does the order fall within one of the four categories of appealable orders?
- Interlocutory orders certified as immediately appealable by the trial court pursuant to 12 O.S. §952(b)(3);8
- Interlocutory orders appealable by right under 12 O.S. §993(A) and Okla. Sup. Ct. R. 1.60;9
- Orders properly certified as final orders pursuant to 12 O.S. §994(A); and
- Final orders.10
First and foremost, the order appealed must be properly memorialized. 12 O.S. §696.2(A) provides that after the granting of a judgment, decree or appealable order, it shall be reduced to writing in conformance with 12 O.S. §696.3. Section 696.2(D) provides examples of what does not constitute an appealable order. The most common order the court sees is the “minute entry” which is not an appealable order.11 Remember when appealing from the adjudication of a post-trial motion, the order disposing of the motion must also be memorialized in conformance with these statutory requirements.12
Secondly, 12 O.S. §990A(A) provides that an appeal must be commenced by filing a petition in error within 30 days of the date the judgment, decree or appealable order prepared in conformance with 12 O.S. §696.3 is filed with the clerk of the trial court. This is a jurisdictional requirement.13 Oklahoma Supreme Court Rule 1.21(a) states: “The date of filing of a judgment, decree or appealable order with the clerk of the district court shall be presumed to be the date of the district court clerk’s file stamp thereon.” This is explored in more detail below.
TIMING AND NOTICE
How Post-trial Motions Filed in District Court Affect Appeal Time
Post-trial motions filed within 10 days of the judgment’s filing. 12 O.S. §990.2(A) provides that a post-trial motion filed within 10 days of the filing of the judgment, decree or final order serves to extend the time to appeal the same beyond the 30-day time period.14 If a post-trial motion is filed within 10 days of the judgment, §990.2(A) provides that “an appeal shall not be commenced until an order disposing of the motion is filed with the court clerk.” If the decision on the post-trial motion is against the moving party, the moving party may appeal the judgment, the order on the post-trial motion or from both orders within 30 days of the order disposing of the post-trial motion.
Sometimes we see a petition in error filed before the trial court has disposed of a post-trial motion filed within 10 days of the judgment. Under such circumstances, the appeal may be dismissed by the court as premature.15 (A premature appeal may also occur when an appeal is taken from an order which is not properly memorialized.) However, keep in mind the appellant may cure the initial prematurity of the appeal by timely filing a supplemental petition in error after the filing of the final judgment and before the appeal is dismissed. Under 12 O.S. §990A(F)(1) such an appeal “shall not be dismissed” as premature.
Post-trial motions filed more than 10 days after the judgment’s filing. Conversely, 12 O.S. §990.2(B) provides that if a post-trial motion is filed more than 10 days after the judgment, decree or final order is filed with the clerk of the district court, it does not extend the time to appeal the original judgment.16 Both in substance and for purposes of appeal time, adjudication of a post-trial motion filed more than 10 days after the filing of the judgment “is an independently appealable post judgment event.”17
It is crucial to remember that a trial court’s discretionary extension of time for the filing of a motion for new trial beyond the 10-day period does not extend the time to appeal from the original judgment.18 Unfortunately, we see this happen occasionally. If you intend to appeal the original judgment and intend to file a post-trial motion, review your timelines carefully. Determine whether your post-trial motion was (or will be) filed within 10 days. Prepare accordingly. When in doubt, go ahead and timely appeal the original judgment.19 You can always file a second appeal of the order disposing of the post-trial motion.
How to Calculate the 10-Day Period for Post-trial Motions
12 O.S. §2006(A)(1) applies to time calculations of post-trial motions. Except for a few noted exceptions, §2006(A)(1) provides that when the period of time prescribed or allowed to perform an act is less than 11 days, intermediate legal holidays and weekends “shall be excluded from the computation.” Oklahoma Supreme Court Rule 1.3 prescribes the same method for computation of any time period of less than 11 days. To determine whether a post-trial motion is filed within 10 days of the judgment’s filing, the court will count “working days” as the court reiterated late last year in Christian v. Christian.20
Filing of the Judgment, Service Within Three Days, Actual Notice
12 O.S. §990A(A) and 12 O.S. §696.2(B). 12 O.S. §990A(A) requires an appeal to be commenced within 30 days of the filing of a judgment, decree or appealable order. This is straightforward. However, this period may be affected by the three-day mailing requirements. I say, may be. Pursuant to the second part of §990A(A):
- if the appellant did not prepare the judgment, decree, or appealable order;
- 12 O.S. §696.2 requires service of the final order on the appellant; and
- court records do not reflect service of the order on appellant within three business days of the filing of the order, the petition in error may be filed within 30 days after the earliest date on which court records show a copy of the order was served.
12 O.S. §696.2(B) requires a file-stamped copy of the judgment to be served by the party (or counsel or judge) who prepared the order no later than three days after its filing. A “certificate of service must be filed with the court clerk.”21 Consider these provisions every time you file an appeal. Determine whether your appeal may be affected by these provisions. As discussed below, even without a certificate of service appeal time is triggered by actual notice. If you are unsure, always assume your time to appeal is triggered by the filing of the judgment. Misinterpretation can result in an untimely filed appeal.
Fleshing out §990A(A) with Tidemark, Whitehall and Cedars. The court has fleshed out 12 O.S. §990A(A)’s three-day mailing requirements in three key decisions. In 1998, in Tidemark Exploration, Inc. v. Good22 the court dismissed the appeal where there was no dispute appellant received actual notice of the appealable event more than 30 days before the filing of the appeal.23
Fourteen years later in Whitehall Homeowners, Ass’n v. Appletree Enterprise,24 the court held that when actual notice occurs later than three days after filing of the order, but before the proof of notice is filed, the time to appeal will commence from the date that actual notice of the appealable event occurred. The court in Whitehall remarked that there was “an utterly silent record” as to when the order was served on appellant.25
In 2013, the court decided State ex rel. Okla. Dep’t of Transp. v. Cedars Group, LLC.26 As in Whitehall there was no certificate of service filed but, as opposed to Whitehall, there was no dispute appellant received actual notice of the judgment within three days of its filing. The court held in that instance the date of the filing of the judgment triggers the running of the 30-day time period.27
Get to know these cases. They each have different and nuanced fact patterns which makes the analysis of the court very helpful in sorting out §990A(A)’s mailing provisions. They will guide you in determining whether the 30-day time to appeal may be extended because of defects in service of the order.
Participation in the preparation of the order. The court in Tidemark concluded that because the attorney for appellant participated in the preparation of the order the mailing provisions of 12 O.S. §990A(A) did not apply and the filing of the judgment triggered the time to appeal.28 The court has not explicitly defined to what extent “participation in the preparation of the order” will trigger §990A(A)’s mailing requirements. If you are not sure whether you participated in preparing the order for purposes of the statute, assume the appeal time is triggered by the date the order is filed.
CATEGORIES OF APPEALABLE ORDERS
Certified Interlocutory Orders
A party can appeal an interlocutory order, when not appealable by right, pursuant to 12 O.S. §952(b)(3). The order must affect “a substantial part of the merits of the controversy” and the district court judge must certify “that an immediate appeal may materially advance the ultimate termination of the litigation.” Certified interlocutory orders (CIO) typically present a pure legal question that would affect the merits of the controversy.29 The court has defined this term as the real or substantial grounds of action or defense as distinguished from matters of practice, procedure or form.30 The court does not consider jurisdictional issues31 and evidentiary rulings32 to fall within the definition of merits of the controversy.
Interlocutory Orders Appealable by Right
A party may seek review from a class of interlocutory orders that are appealable by right. These orders are listed in 12 O.S. §993, 12 O.S. §952(b)(2) and Oklahoma Supreme Court Rule 1.60.33 An appeal from an interlocutory order appealable by right must be commenced within 30 days of the filing of the memorialized order. However, a party’s failure to appeal from an interlocutory order appealable by right does not prevent the party from asserting error in the order in an appeal from a final judgment in the case.34
Orders Certified as Final Pursuant to 12 O.S. §994
A judgment as to one but less than all claims or parties in an action is not an appealable final order unless the judgment is certified by the trial court under 12 O.S. §994(A). The order must contain the express determination by the trial court that there is no just reason for delay and direct the order be filed as a final judgment.35 Bear in mind that if an unadjudicated claim arising out of the same transaction or occurrence as the adjudicated claim remains, the trial court lacks the power to enter a final order.36
To determine whether an order is properly certified under §994(A), the court will also look at the interrelationship between the legal and factual issues of the resolved and pending claims and the equities and efficiencies implicated by the requested piecemeal review.37
A final order is one that affects a substantial right when such order in effect determines the action.38 An interlocutory order, on the other hand, does not preclude a party from proceeding further in the case, nor does such an order “prevent a judgment.”39 The best way to think about this is: subject to certain exceptions, trial court orders which leave issues or claims to be determined or parties in the case are not final unless certified
as such by the trial court.40
The court has established a helpful two-prong test for finality:
- whether the order conclusively determines the question presented; and
- whether the order prevents the aggrieved party from further proceeding in the action.41
For instance, an order compelling arbitration and staying further proceedings in the district court is a final, appealable order,42 as is an order granting or denying disqualification of counsel.43
Unsure Whether an Order Is Appealable? Go Ahead and Appeal
The law on final and interlocutory orders is too vast and varied to get into more detail in this article. If you are not sure whether an order is appealable, always assume that it is and timely commence your appeal. If the appeal is dismissed for lack of an appealable order, you will have the opportunity to bring a subsequent appeal in accordance with the rules.
JURISDICTIONAL QUESTION? DON’T PANIC
The court will seek to resolve jurisdictional questions by asking the appellant to “show cause” why the appeal should not be dismissed for lack of an appealable order, as untimely, as premature or some other reason. If you find yourself on the receiving end of a show cause order, don’t panic. Consider it your opportunity to cure any apparent deficiencies by filing an amended or supplemental petition in error or to provide the legal basis for why the order is appealable.44
Author’s Note: The referees of the Oklahoma Supreme Court are central staff whose duties include preparing memoranda for the court analyzing the facts and law in the assigned case. These are confidential and not discoverable. This article is derived from a CLE presentation prepared and given by Referee Kyle Rogers and me to the OBA Appellate Practice Section. This article is meant to be a general overview only. Always consult the relevant statutes and appellate rules
if you plan to file an appeal.
ABOUT THE AUTHOR
Ann Hadrava is a referee at the Oklahoma Supreme Court. Prior to coming to the court in January 2017, she was in private practice, focusing mostly on appellate work. Ms. Hadrava graduated in 2002 from the OCU School of Law.
1. Stites v. Duit Const. Co., Inc., 1995 OK 69, ¶8 & n.10, 903 P.2d 293, 297 (reaffirming court’s history of decisions holding inquiries into appellate cognizance may be made sua sponte at any stage of the proceedings); Cate v. Archon Oil Co., Inc., 1985 OK 15, ¶10 n.12, 695 P.2d 1352, 1356 n.12 (“This court must inquire into its own jurisdiction as well as to the jurisdiction of the court from which the appeal is taken, regardless of whether it is raised by the litigants.”).
2. For example, see Okla. Sup. Ct. R. 1.85 (appeals from the Corporation Commission), Rule 1.100 (Workers’ Compensation Commission), Rule 1.125 (Tax Commission).
3. Minute orders, orders directing one to prepare a journal entry, order sheets and verdicts are not properly memorialized. See Mansell v. City of Lawton, 1994 OK 75, 877 P.2d 1120; Corbit v. Williams, 1995 OK 53, 897 P.2d 1129; Aven v. Reeh, 1994 OK 67, 878 P.2d 1069; Brown v. Green Country Softball Ass’n, 1994 OK 124, ¶12, 884 P.2d 851; Chamberlin v. Chamberlin, 1986 OK 30, 720 P.2d 721. An order titled Summary Order meets the requirements of §696.3 so long as the order is reduced to writing, signed by the judge, contains a proper caption and contains the disposition and relief awarded.
4. See Okla. Sup. Ct. R. 1.21.
5. See Okla. Sup. Ct. R. 1.100.
6. See Okla. Sup. Ct. R. 1.27(a).
7. It is always good to double-check what type of appeal you have because some are governed by specific statutes and appellate rules other than those applicable to those mentioned above.
8. See also Okla. Sup. Ct. R. 1.50 to 1.56.
9. See also Okla. Sup. Ct. R. 1.60 to 1.67.
10. See 12 O.S. §953. See Okla. Sup. Ct. R. 1.20 for examples of final orders.
11. See supra note 3.
12. Corbit v. Williams, 1995 OK 53, ¶8, 897 P.2d 1129. Though an order might meet all the other requirements of 12 O.S. §696.3, a court minute is not an appealable order or judgment.
13. Davis v. Martin Marietta Materials Inc., 2010 OK 78, ¶1, 246 P.3d 454, 454. Except for the timely filing of the petition in error (including notice to adverse parties) all other steps in perfecting an appeal are not jurisdictional. 12 O.S. §990A(E).
15. 12 O.S. §990A(F)(1); Okla. Sup. Ct. R. 1.26(c).
16. In the Matter of K.S., 2017 OK 16, ¶9, 393 P.3d 715, 717; see also Okla. Sup. Ct. R. 1.22 (tracking the language of §990.2).
17. Central Plastics Co. v. Barton Indust., Inc., 1991 OK 103, ¶2, 818 P.2d 900 (order) (citing Schepp v. Hess, 1989 OK 28, 770 P.2d 34); Carr v. Braswell, 1989 OK 52, ¶9, 772 P.2d 915, 917 (holding that the appeal of original order was untimely, but appeal of denial of motion to vacate was timely); Yery v. Yery, 1981 OK 46, ¶9, 629 P.2d 357, 360 (addressing an appeal from an order disposing of a motion to vacate filed more than 10 days after the original judgment and limiting appellate review to issues raised in the motion).
18. See Davis, 2010 OK 78, ¶1(3), 246 P.3d at 455.
19. If it turns out your appeal is premature and the appeal is dismissed as premature, under 12 O.S. §990A(F)(2) you may file a new petition in error within 30 days of the filing of the appealable order or within 30 days of the notice of dismissal, whichever date is later.
20. 2018 OK 91, ¶7, 434 P.3d 9 (because the time limit prescribed by 12 O.S. §653(A) is only 10 days, weekends, legal holidays and days when the court clerk is either closed or closes early, must be omitted when computing deadline for filing a motion for new trial); see also Davis, 2010 OK 78, ¶1, 246 P.3d at 455 (only post-trial motions filed within 10 “working” days will extend time to appeal the same beyond the 30-day jurisdictional limitation.).
21. This statute requires that service be in accordance with the provisions of 12 O.S. §2005; see Neumann v. Arrowsmith, 2007 OK 10, ¶4 n.3, 164 P.3d 116, 117 (using three business days as calculation).
22. 1998 OK 67, ¶5, 967 P.2d 1194, 1195-96.
23. The court held the filing of the certificate of service is not the appealable event. The court dismissed the appeal because it was filed more than 30 days after the filing of the order appealed, and more than 30 days after the order was mailed to appellant. The order was mailed to appellant within three days, but there was no certificate of service filed until months later.
24. 2012 OK 34, ¶12, 277 P.3d 1266, 1269.
25. Id. at ¶7.
26. 2013 OK 99, ¶8, 320 P.3d 23, 25.
28. Supra note 23, at ¶6. See also Cedars, supra note 27, at ¶6 (observing same).
29. See Martin v. Phillips, 2018 OK 56 (addressing whether a defendant’s Alford plea can establish tort liability for the same acts). See State ex rel. Bd. of Regents of University of Oklahoma v. Lucas, 2013 OK 14, 297 P.3d 378, for a thorough discussion of the CIO standard and what constitutes a claim affecting the “merits” of the controversy. In Lucas, the court observed a claim based upon a lack of jurisdiction is usually considered to be a claim not affecting the merits of the controversy. To the extent the jurisdictional issue in the case could be construed as intertwined with the merits, the court noted the university’s motion to dismiss should be treated as a motion for summary judgment. Okla. Sup. Ct. R. 1.50 states no CIO will be considered if taken from an order overruling a motion for summary judgment. Hence, the court concluded certiorari review was improper. See id. at ¶11. See also Sommer v. Sommer, 1997 OK 123, ¶6, 947 P.2d 512.
30. Flick v. Crouch, 1967 OK 131, ¶15, 434 P.2d 256 (quoting Providential Development Co. v. U.S. Steel Co., 236 F.2d 277, 280 (10th Cir. 1956)).
32. Ellison v. Ellison, 1996 OK 64, ¶5, 919 P.2d 1.
33. See also 12 O.S. §952(b)(2), which gives the court jurisdiction to review an order which discharges, vacates or modifies or refuses to discharge, vacate or modify a provisional remedy or grants, modifies, vacates or refuses to grant, modify or vacate an injunction, grants or refuses to grant a new trial or vacates or refuses to vacate a final judgment.
34. See 12 O.S. §952(b); Okla. Sup. Ct. R. 1.40(f) and 1.61, but see Williams v. Mulvihill, 1993 OK 5, ¶2, 846 P.2d 1097. Williams involved a claim brought against the estate by a third-party. The court found the trial court’s mid-probate order declaring the sale a nullity was a true “judgment” because it resolved issues separate from the main probate action. See Okla. Sup. Ct. R. 1.60(h) (interlocutory probate orders appealable by right). The order in Williams was an “end-of-the-line disposition of all issues” between a stranger to the estate who was neither an heir, beneficiary or fiduciary under the will and the estate. Thus, Williams stands for the proposition that an order under 58 O.S. §721(10) can be the “final determination of the rights of the parties in an action” which must be immediately appealed.
35. In the absence of such certification, the order “shall not terminate the action,” and the appeal will be dismissed. Dotson v. Rainbolt, 1992 OK 101, ¶2, 835 P.2d 870.
36. Liberty Bank and Trust Co. of Oklahoma City, N.A. v. Rogalin, 1996 OK 10, ¶10, 912 P.2d 836; DeLuca v. Mountain States Financial Resouces Corp., 1992 OK 30, ¶1, 827 P.2d 171.
37. Oklahoma City Urban Renewal Auth. v. City of Oklahoma City, 2005 OK 2, ¶17, 110 P.3d 550.
38. 12 O.S. §953; Okla. Sup. Ct. R. 1.20.
39. DLB Energy Corp. v. Oklahoma Corp. Comm’n, 1991 OK 5, ¶7, 805 P.2d 657.
40. Jones v. Tubbs, 1993 OK 118, ¶6, 860 P.2d 234 (order granting default judgment on actual damages but reserving punitive damages not a final appealable order). This court in Andrew v. Depani-Sparkes, 2017 OK 42, ¶15, 396 P.3d 210, reiterated that a motion to reconsider or vacate which challenges an earlier intermediate order in the case is treated as a request for reconsideration of an intermediate ruling. “A motion to reconsider an interlocutory order anterior to judgment is not a §1031 motion to vacate unless made so by the terms of the statute.” Id. at ¶14.
41. Hammonds v. Osteopathic Hosp. Founders Assn., 1996 OK 54, ¶3, 917 P.2d 6. The issue in Hammonds was whether the sanctions order against a nonparty to the case was a final, appealable order. Because the order in Hammonds was an end-of-the-line disposition of matters between the nonparty (Sellers) and Hammonds, ancillary to the main litigation, the order was final under 12 O.S. §953.
42. 12 O.S. §953; Oklahoma Oncology & Hematology P.C. v. US Oncology, Inc., 2007 OK 12, ¶17,160 P.3d 936.
43. Arkansas Valley State Bank v. Phillips, 2007 OK 78, ¶8, 171 P.3d 899. See also Miami Business Serv’s, LLC. v. Davis, 2013 OK 20, ¶17, 299 P.3d 477 (order denying disqualification of counsel is a final order which is immediately reviewable on appeal).
44. For example, when an appeal appears premature, the court will allow a reasonable period for the appellant to secure a final or otherwise appealable order so the appeal can proceed. If the issue is timeliness, explain the legal bases for why the appeal should proceed. Remember, facts not in the record must be supported by affidavit. This is especially important in sorting out when an order is mailed.