Oklahoma Bar Journal
Interlocutory Appeals in Oklahoma: What, When and How
By Chase McBride
“An interlocutory order is an order which is not ‘final,’ does not culminate in a judgment [and] leaves the parties before the tribunal to try the issues on the merits...”1 An interlocutory appeal is an “appeal of an order in a case that has not reached its conclusion in the trial court.”2
In order for an interlocutory order to qualify for an interlocutory appeal, it must either “(a) fall within a class of interlocutory orders appealable by right or (b) be certified by the trial court for immediate (prejudgment) review because it affects a substantial part of the merits of the controversy.”3 The first type of interlocutory orders are specifically listed in the statutes. The second are up to the discretion of the trial judge to certify but often involve issues of law that may need to be resolved prior to the court determining the outcome of the case. Note: the deadlines of the two types of appeals are different.
TYPE I – ORDERS QUALIFYING FOR AN INTERLOCUTORY APPEAL AS A STATUTORY RIGHT
A party has a statutory right to appeal the following district court interlocutory orders pursuant to Oklahoma Supreme Court Rule 1.60 and 12 O.S. §993:
- Orders granting a new trial or vacating a judgment on any ground,4
- An order granting or refusing the discharge, vacation or modification of an attachment,
- An order granting or denying a temporary injunction (except where the injunction was granted via an ex parte hearing) or an order that grants or refuses to discharge, vacate, modify or refuses to discharge a temporary injunction,5
- An order granting or refusing to discharge, vacate or modify a provisional remedy which affects the substantial rights of a party,6
- An order granting or refusing the appointment of a receiver (except where the receiver was appointed at an ex parte hearing),
- An order directing, refusing, vacating or refusing to vacate the payment of money during litigation (except where granted at an ex parte hearing),
- An order certifying or refusing to certify an action to be maintained as a class action,
- Orders found in section 721 of the probate code (not including final accounting or distribution orders)7 and
- Orders made under 12 O.S. §1879 involving Uniform Arbitration Act.8
Commencement of Interlocutory Appeals Qualified by Statutory Right
A party must commence the interlocutory appeal by filing a petition in error (along with 14 copies), an entry of appearance and paying the filing fee to the clerk of the Supreme Court within 30 days of the interlocutory order being filed in the trial court.9
The petitioner shall use Supreme Court Form No. 5, Petition in Error.10 If a cross or counter appeal is filed, claimant shall also use Form No. 5.11
Using the Supreme Court Form No. 6, Response to Petition in Error, the appellee shall file their response and entry of appearance within 10 days of the appellant’s petition in error.12
The record shall be designated and prepared in the same manner as an appeal from a final order located in Supreme Court Rules 1.28-1.34.13 If transcripts are ordered, the notice of completion of record shall be filed within 60 days of the filing of the interlocutory order.14
The appellant’s brief in chief shall be filed within 30 days from the date of the notice of completion of record being filed with the clerk of the Supreme Court.15 The appellee’s brief in chief shall be filed within 20 days after the appellant’s brief.16
In cases involving the trial court’s refusal to vacate the appointment of a receiver, the appealing party shall post in the trial court an appeal bond in an amount fixed by the trial court within 10 days from the date of the order being reviewed.17
All Supreme Court Rules found in Rules 1.1 through 1.39 also apply to interlocutory appeals allowed by statutory right when they are consistent with the rules discussed above inclusively.18
When to File Interlocutory Appeals Qualified by Statutory Right
A party does not waive their right to have appellate review of a final judgment by not filing an interlocutory appeal at the time the interlocutory order is entered. An aggrieved party may secure review of every preserved prejudicial error committed at nisi prius in the course of proceedings which precede an appealable decision.19
However, if it is an issue that your client wants to attempt to ensure to get an appellate ruling to help address future cases, it is smart to file the interlocutory appeal at the first opportunity. If the interlocutory order is subsumed by another order or the case is dismissed, the Supreme Court will not review the issue of the interlocutory order as “the order [goes] beyond appellate cognizance.”20 Furthermore, it is unlikely that an issue that could have been appealed via an interlocutory appeal will be reviewed until a final judgment is entered by using a collateral attack method such as a writ, therefore failing to make the timely appeal may delay in getting an appeal ruling on the issue if one chooses to further into the litigation.21 There is no authority “permitting a party to delay timely review of an appealable interlocutory decision until a time determined more advantageous to its interest.”22
TYPE II – ORDERS CERTIFIED BY THE DISTRICT COURT FOR INTERLOCUTORY APPEAL
Any interlocutory order not appealable by right under the statutes that affects a substantial part of the merits of the case may be appealed when the trial judge certifies that an immediate appeal from the judge’s order may materially advance the ultimate termination of the litigation.23 “The order must affect a substantial part of the merits of controversy and be certified by the trial judge that an immediate appeal may materially advance the ultimate termination of the litigation.”24 The Supreme Court has “said the term ‘merits’ includes the real or substantial grounds of an action or defense, and excludes matters of practice, procedure, and evidence.”25 Additionally:
A proceeding to review a certified interlocutory order must comply with the terms of 12 O.S. 1981 §952(b)(3) and Rules 1.50-1.56. The provisions of §952(b)(3) plainly require that an interlocutory order to be certified for [the Supreme Court’s] review affect a substantial part of the merits of the controversy. [The Supreme Court’s] power to review certified orders clearly is confined to those which deal with prejudgment issues on the merits of a controversy. Certification and review of an interlocutory order is impermissible when … a disposition on the merits had already been effected.26
Even if a district court certifies an order for interlocutory appeal, the Supreme Court may still refuse to hear the appeal.27 “If the Supreme Court assumes jurisdiction of the appeal, it shall indicate in its order whether the action in the trial court shall be stayed or shall continue.”28
The Supreme Court may also recast the interlocutory appeal in order to review it if an interlocutory appeal is filed improperly. The court recently recast a certified interlocutory order to a petition to assume original jurisdiction in an appeal dealing with subject matter jurisdiction of a district court in order to issue a ruling.29 The court recast the petition because it determined that issues of subject matter jurisdiction do not typically involve merits of the controversy.30
COMMENCEMENT OF CERTIFIED INTERLOCUTORY ORDERS
When a party has an interlocutory order they believe may qualify for a certified interlocutory appeal, the party should request the district judge to include in their written order proper language that the court certifies that the interlocutory order affects a substantial part of the merits of controversy and that the court certifies the interlocutory appeal. Some cases the request is made orally and written into the proposed order, others it is made through a filed Application to Certify for Immediate Interlocutory Appeal.31 An uncertified interlocutory order is not an appealable order, unless it is statutory right.32
Example model language to include in a certified interlocutory order is: “The court finds that this order affects a substantial part of the merits of this controversy because (fill in the blank with the issue of specific case). Therefore, an immediate appeal from this order will materially advance the ultimate termination of the litigation. It is therefore ordered that pursuant to 12 O.S. 952(b)(3), this order is certified for an immediate appeal.”33
For certified interlocutory orders to be appealed, a petition for certiorari must be filed within 30 days of the date the certification is filed in the trial court wherein the trial court certifies in writing that an immediate review may materially advance the ultimate termination of the litigation.34 This time limit cannot be extended and an opportunity to properly appeal an interlocutory order may be lost.35 The filing of a motion for new trial, reconsideration, re-examination, rehearing or to vacate the interlocutory order shall not extend the 30 days.36 The proceeding for review is regarded as commenced when the petition is filed and costs are paid.37 Upon the commencement, both the petitioner and respondent shall file entry of appearances.38
Pursuant to Rule 1.301, the petitioner must use the Oklahoma Supreme Court Form No. 7, Petition for Certiorari to Review Certified Interlocutory Order.39 Filing a petition in error instead of a petition for certiorari to review certified interlocutory order has resulted in dismissal of an appeal and later prevented a review of the same issue after final judgment.40 “Because [the appellant] elected to seek appellate review of the trial court’s [interlocutory] order through the certified interlocutory order procedure, he is bound by that choice and the consequences of failing to properly pursue such relief.”41
The petition for certiorari shall refer to the party seeking review as “petitioner” and to the other parties as “respondents.”42 The caption of the petition for certiorari shall correspond with the sequence in which the designation of the parties appeared in the trial court case.43 The original and 14 copies of the petition shall be filed.44 A concise statement of the pertinent parts of the record and a statement of the reasons why the order should be reviewed in advance of final judgment signed by the trial court shall be attached to the petition.45
Respondent shall have 15 days after the filing of a petition for certiorari to file a response.46 The respondent shall use Oklahoma Supreme Court Form No. 8, Response to Petition for Certiorari to Review Certified Interlocutory Order.47 Like the petition, the original and 14 copies of the response to the petition shall be filed.48
The record shall be prepared in the same manner as that prescribed for perfecting an appeal from a final judgment or final order of the district court, except that petitioner for certiorari shall file and serve petitioner’s designation of instruments to be included or portions of the evidence to be transcribed, within 10 days after this court grants certiorari.49 The record shall be ready within 30 days from the certiorari is granted unless good cause is shown.50
Petitioner shall file a brief in chief within 20 days of the notice of completion of record being filed.51 The respondent’s answer brief is due within 10 days of the filing of the petitioner’s.52 The petitioner may file a reply brief within five days of the answer brief.53
EXAMPLES IN CASES
Orders overruling a motion for summary judgment do not qualify for an interlocutory appeal even if the judge certifies it.54 Furthermore, summary judgment of less than all the issues in a cause is beyond the reach of review unless it falls into a class of interlocutory orders that are appealable by right or is certified for an appeal in advance of final judgment.55
Courts have discretion over many issues at the district court level. Disagreeing with a court’s ruling does not immediately qualify for an interlocutory appeal. A court’s refusal to allow a party to amend their pleadings does not fit into any category of interlocutory order appealable by right.56 An order appointing a substitute arbitrator and staying further proceedings pending arbitration is not an interlocutory appealable order.57
Keep in mind that interlocutory appeals apply to orders that do not resolve all the issues in the case regardless of at what point in the case the order is issued. Post judgment orders may still qualify for an interlocutory appeal if certified by the trial judge and the order does not resolve all the post judgment issues.58
Do not attempt to appeal an interlocutory order as a final order. The two appeals have different procedures and the appellate court will make you follow the proper procedure regardless of what the order is titled. This could be costly. Masking or mistaking an interlocutory order as a final order for appeal purposes has failed. The Supreme Court has dismissed appeals brought as a final appeal when all issues before the trial court were not resolved. The court determined that if any issues remain, the order and appeal is interlocutory. The court dismissed the appeal even after a party tried to fix the issue through an order nunc pro tunc and asked the court
to recast the appeal.59
Interlocutory appeals are a method to get an opinion from the appellate court before having to wait until the completion of the case. Recognizing when it is an option and knowing the proper procedure to file each type is key to adding it to your arsenal of litigation strategies.
ABOUT THE AUTHOR
Chase McBride is an attorney at Ritchie, Rock, McBride & Atwood Law Firm with locations in Pryor and Shawnee. He is a general litigation attorney who primarily practices business, property, family and criminal matters. He received his J.D. from the OU College of Law, as well as an MBA and Certificate in Law and Entrepreneurship from OU.
1. State ex rel. Bd. of Regents of the Univ. of Okla. v. Lucas, 2013 OK 14 at 2.
2. The Wolters Kluwer Bouvier Law Dictionary Desk Edition – “Interlocutory Appeal.”
3. Eason Oil Co. v. Howard Eng’g, Inc., 1988 OK 57 at ¶5.
4. Pryor v. Mid-West Investigations & Process Serving Inc., 2000 OK CIV APP 22. An order vacating a judgment is an interlocutory order appealable by right.
5. Enron Oil & Gas Co. v. Worth, 1997 OK CIV APP 60. A permit holder, which sought to conduct mineral tests, was entitled to a temporary injunction against surface interest holders to enjoin their interference with the tests because the right to test was a severable interest of a mineral owner; the order first denying the temporary injunction was appealable by right.
6. Dee v. Horton, 2012 OK CIV APP 80 at ¶7 – “A ‘provisional remedy’ is a remedy granted only as ... ancillary or auxiliary to proper equitable relief, that is, such relief is a provisional remedy granted only in connection with an action for some other purpose.”
7. In re Estate of Nation, 1992 OK 91. An application to share in the assets of a decedent’s estate as omitted children was an interlocutory order appealable by right.
8. Fleming Cos. V. Tru Discount Foods, 1999 OK CIV APP 18. Appeal of a trial court’s order which vacated a previous stay of arbitration order and directed that the action proceed in district court was an interlocutory order that was appealable by right.
9. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.61.
10. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.63(a).
11. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.63(a).
12. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.63(b).
13. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.64.
14. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.64.
15. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.65.
16. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.65.
17. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.66.
18. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.67.
19. Berryhill v. Rhodes (In re Berry), 2014 OK 56, P40 at ¶40.
20. City of Tulsa v. Raintree Estates I, Inc., 2007 OK CIV APP 41 at ¶6.
21. Halliburton v. Williams, 1933 OK 637 at ¶10 – A “writ will not be issued on account of the inconvenience, expense, or delay of other remedies, but will be granted where the remedy available is insufficient to prevent immediate injury or hardship to the party complaining, particularly in criminal cases.”
22. City of Tulsa v. Raintree Estates I, Inc., 2007 OK CIV APP 41 at ¶6.
23. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.50, see also 12 O.S. §952(b)(3).
24. Lay v. Ellis, 2018 OK 83 at ¶22.
25. Sommer v. Sommer, 1997 OK 123 at ¶6.
26. Pierson v. Canupp, 1988 OK 47 at ¶11.
27. 12 O.S. §952(b)(3).
28. 12 O.S. §952(b)(3).
29. State ex rel. Bd. of Regents of the Univ. of Okla. v. Lucas, 2013 OK 14.
30. State ex rel. Bd. of Regents of the Univ. of Okla. v. Lucas, 2013 OK 14.
31. Cleveland County CJ-2017-21 entitled Fox v. Mize et al., Defendant Van Eaton Ready Mix, Inc.’s Application to Certify the Court’s July 6, 2017 Summary Order for Immediate Interlocutory Appeal and for Concise Statement by this Court Pursuant to Oklahoma Supreme Court Rule 1.52.
32. Panama Timber Co. v. Barsanti, 1980 OK CIV APP 18; see also DLB Energy Corp. v. Oklahoma Corp. Com., 1991 OK 5.
33. Modeled after the Amended Order Sustaining Cimarex Energy Co.’s Motion to Dismiss and Certification of Interlocutory Appeal filed on June 13, 2016 in Canadian County CJ-2015-569 entitled ’Benedetti v Cactus Drilling et al.”
34. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.51(a).
35. Id. See also City of Tulsa v. Raintree Estates I, Inc., 2007 OK CIV APP 41.
36. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.51(b).
37. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.51(c).
38. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.51(c).
40. Brown v. Brown, 1994 OK CIV APP 29.
41. Id. at ¶6.
42. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.52(a).
43. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.52(a).
44. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.52(a).
45. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.52(b).
46. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.53.
47. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.53.
48. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.53.
49. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.54(a).
50. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.54(c)-(d).
51. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.55.
52. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.55.
53. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.55.
54. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.50.
55. Reams v. Tulsa Cable Television, Inc., 1979 OK 171; See also First Bank of Okarche v. Lepak, 1998 OK 46.
56. Lawson v. Boston Chrysler, Plymouth & Dodge Inc., 1981 OK 26.
57. Ditto v. RE/MAW Preferred Properties, 1993 OK CIV APP 152.
58. Sommer v. Sommer, 1997 OK 123; See also Willoughby v. City of Okla. City, 1985 OK 64.
59. City of Lawton v. Int’l Union, Local 24, 2002 OK 1.