Oklahoma Bar Journal
Reconsider Your Motion to Reconsider
How Post-Trial Motions Affect Your Civil Appeal
By Bevan Graybill Stockdell and Kimberly Withiam Carlson
After a judgment, decree or final order is filed, the unsuccessful party may appeal that decision to the Supreme Court of Oklahoma and/or seek post-trial relief from the trial court. While a post-trial motion is not a jurisdictional prerequisite for filing an appeal, often the unsuccessful party elects to first or concurrently ask the trial court to review its own appealable order.1 This article addresses three types of post-trial motions: 1) motions for new trial, 2) motions to vacate or modify, and 3) motions to reconsider and, specifically, how the rules governing these motions may affect your civil appeal.2
MOTIONS FOR NEW TRIAL
Motions for new trial are governed by 12 O.S. §§651-658. A motion for new trial must be upon written grounds filed at the time of making the motion.3 Section 651 sets forth nine grounds upon which a motion for new trial may be based: 1) irregularity in the proceedings which prevented the moving party from having a fair trial; 2) misconduct of the jury or a prevailing party; 3) accident or surprise; 4) excessive or inadequate damages; 5) error in the assessment of the amount of recovery; 6) that the verdict, report, or decision is not sustained by sufficient evidence or is contrary to law; 7) newly discovered material evidence, which could not, with reasonable diligence, have been discovered and produced at trial; 8) error of law occurring at the trial; and 9) when, without fault of the complaining party, it becomes impossible to prepare a record for an appeal.4
A new trial motion must meaningfully apprise the trial court of the reasons for which relief is sought, and lack of specificity in a motion for new trial typically waives the issue for appellate review.5 However, lack of specificity in the motion may be cured where the record shows that, “at the hearing on that motion, the movant, without any objection from the opposite party, precisely identified each point of law which is fairly comprised in the general allegations of the defective motion.”6
A motion for new trial must be filed within 10 days of the judgment, decree or appealable order “[u]nless unavoidably prevented[.]”7 If more than 10 days have passed since the filing of the final order, a petition for new trial may be filed but only where “the grounds for a new trial could not with reasonable diligence have been discovered before but are discovered more than ten (10) days after the judgment, decree, or appealable order was filed.”8 A party may file an amended motion for new trial asserting new and independent grounds for granting a new trial, but only if the amendment is filed within 10 days of the judgment, decree or appealable order.9 In addition, the moving party may not raise allegations of error on appeal that she did not raise in her motion for new trial.10 In other words, if a party files a motion for new trial, the grounds generally must be asserted within 10 days to warrant consideration of the issues by the trial court and to preserve the issues for appellate review.
MOTIONS TO VACATE OR MODIFY
Motion to Vacate Pursuant to 12 O.S. §1031
Within 30 days of the filing of the judgment, decree or appealable order, a party may file a motion asking the trial court to correct, open, modify or vacate its own decision pursuant to 12 O.S. §1031.11 Section 1031 provides very specific grounds upon which a judgment may be vacated or modified: 1) when a new trial is granted; 2) where the defendant had no actual notice of the action; 3) for mistake, neglect, or omission of the clerk or irregularity in obtaining the judgment or order; 4) for fraud in obtaining the judgment or order; 5) for erroneous proceedings against an infant or person of unsound mind; 6) for the death of a party before judgment; 7) for unavoidable casualty or misfortune preventing the party from prosecuting or defending; 8) for errors in a judgment against an infant; and 9) for judgment for more than due to plaintiff when defendant was not given notice.12 When asking the trial court to vacate a judgment based on any of these statutory grounds, the moving party should be clear and specific. The moving party needs to state that the motion to vacate is pursuant to §1031 and the specific subsection.
If the moving party is asking the trial court to vacate a judgment after 30 days, “proceedings to vacate or modify the judgment, decree, or appealable order shall be by petition.”13 Typically, the petition must be verified by affidavit.14 Proceedings to vacate or modify a judgment, decree or order for the grounds mentioned in §1031(4), (5) or (7) must be commenced within two years.15 A motion or petition to vacate based on §1031(3) or (6) must be filed within three years.16 A motion or petition to vacate based on §1031(9) must be filed within one year.17 A void judgment, decree or order may be vacated at any time.18
Term-Time Motion to Vacate Pursuant to 12 O.S. §1031.1
A party may also file a motion to vacate or modify a judgment or order within 30 days pursuant to 12 O.S. §1031.1 and the trial court’s term-time authority to vacate or modify its own decisions.19 The trial court can vacate or modify the judgment for practically any reason during this 30-day time period.20 If the moving party is invoking this authority, she does not need to identify statutory grounds enumerated in 12 O.S. §1031 to support her motion.21
MOTIONS TO RECONSIDER
If a party files a “motion to reconsider” and the order disposing of that motion is appealed, the appellate court will undoubtedly note that “[a] ‘motion to reconsider’ does not technically exist within the statutory nomenclature of Oklahoma practice and procedure.”22 This admonishment has been largely ignored. Post-trial motions titled “motion to reconsider” are routinely filed. Linguistically, a “motion to reconsider” may be an accurate description of the relief sought. Essentially, the moving party wants the trial court to reconsider its own judgment, decree or final order; determine it made an error; vacate that decision; and rule in her favor. But, as discussed below, filing a “motion to reconsider” comes with some risk.
SUBSTANCE AND CONTENT CONTROL
The trial and appellate courts must look to the content and substance of a post-trial motion, rather than the title given to it, to determine how the motion is treated.23 A “motion to reconsider” will be treated as either a motion for new trial or motion to vacate:
[I]f timely filed, a “motion to reconsider” may be treated as a motion for new trial under 12 O.S. §651 (if filed within ten (10) days of the filing of the judgment, decree, or appealable order), or it may be treated as a motion to modify or to vacate a final order or judgment under the terms of 12 O.S. §§1031 and 1031.1 (if filed after ten (10) days but within thirty (30) days of the filing of the judgment, decree, or appealable order).24
“A motion seeking reconsideration, re-examination, rehearing or vacation of a judgment or final order, which is filed within 10 days of the day such decision was rendered, may be regarded as the functional equivalent of a new trial motion, no matter what its title.”25 However, this rule “is permissive, not mandatory, and applies only if the substance and content of the motion contains indicia of a new trial motion.”26
In other words, by filing a “motion to reconsider” or other mistitled motion,27 the moving party is leaving it to the trial and appellate courts to determine what type of post-trial motion was filed.28 There is no certainty as to how the courts will treat the motion and the trial court’s treatment of the motion, depending on the correctness of its analysis, may complicate the issues on appeal. Further, although judicial treatment as a motion for new trial and the extended time to appeal seem favorable, a practitioner may unknowingly limit the issues for appeal if she fails to raise issues in a “motion to reconsider” deemed the functional equivalent of a motion for new trial.29
A smarter strategy is to be specific and consistent with the title of the motion and its contents and substance, including the relief sought and the grounds for such relief.30 For example, rather than filing an elusive “motion to reconsider,” the moving party can seek the same relief by filing a motion for new trial, pursuant to 12 O.S. §651(6), or a motion to vacate or modify, pursuant to 12 O.S. §1031 or §1031.1. If counsel is deliberate about what post-trial relief is being sought, she can retain control by knowing the rules that apply and understanding how the post-trial motion affects the appeal.
An appeal to the Supreme Court of Oklahoma must be commenced by filing a petition in error within 30 days from the date the judgment, decree, or appealable order is filed with the clerk of the trial court.31 Generally, the same timing issues arise whether a motion for new trial, motion to vacate, or motion to reconsider is filed. The clock starts ticking for both the time for filing post-trial motions and the time to appeal when the judgment, decree, or final order is filed.32 Title 12 O.S. §990.2 requires close attention.
Post-trial Motion Filed Within 10 Days
Regardless of whether it is a motion for new trial or a motion to vacate, if the motion is filed within 10 days33 after the judgment, decree or final order is filed, the time to appeal does not start to run until an order disposing of the post-trial motion is filed.34 In other words, the filing of a post-trial motion within 10 days suspends the time to appeal. If a post-trial motion is filed after the trial court announces its decision but before the judgment is filed, the motion will be deemed filed when the judgment is filed and receive the benefit of additional time to appeal.35
If an appeal of the underlying decision has already been commenced when the motion is filed, the appeal becomes premature. The appeal may be dismissed.36 If the trial court disposes of the post-trial motion before the appeal is dismissed, the appeal may be saved by filing a supplemental petition in error.37 If the appeal is dismissed as premature, the appellant may file a new petition in error within 30 days of the decision on the motion.38 If an appeal of the underlying decision is not pending when the motion is filed, an appeal cannot be commenced until an order disposing of the motion is filed.39
If the trial court denies the post-trial motion, the moving party may appeal from the judgment, decree or final order, from the ruling on the motion or from both within 30 days.40 It is most efficient to appeal from both by filing one petition in error. However, separate petitions in error are permitted.41 The moving party/appellant should attach as “Exhibit A” to the petition in error both a certified copy of the underlying judgment, decree, or final order and a certified copy of the order disposing of the motion.42 If the trial court grants the post-trial motion, the nonmoving party may appeal from that order within 30 days.43
Post-trial Motion Filed After 10 Days
The filing of a motion for new trial or motion to vacate after 10 days does not suspend the time to appeal from the underlying decision.44 If an appeal of the underlying decision has already been commenced and a post-trial motion is filed more than 10 days after the filing of the final order, the appeal is not rendered premature.45 The moving party is required to advise the Supreme Court that the motion was filed.46 If a post-trial motion is filed first and then later the underlying decision is appealed, the appellant is to advise the Supreme Court that the motion is pending in the petition in error.47 The trial court is permitted to rule on the post-trial motion while the appeal is pending.48 The trial court’s order disposing of the post-trial motion will likely be filed while the appeal is still pending. When the trial court disposes of the motion, the successful party is to then advise the Supreme Court of the trial court’s decision.49
If the trial court denies the post-trial motion and an appeal of the underlying judgment is pending, the moving party may appeal from that order by filing a new or amended petition in error.50 If the moving party did not lodge a timely appeal of the underlying decision and appellate jurisdiction over that decision has been lost, she can still separately appeal from the final order denying the post-trial motion within 30 days.51 If the trial court grants the post-trial motion and the judgement is vacated or modified, she may appeal from the order disposing of the post-trial motion within 30 days.52
Appellate courts will take the path of least resistance to most efficiently decide an appeal. They can do that by dismissing an untimely appeal or narrowing the reviewable issues. By making informed, strategic decisions about post-trial motions and following the applicable rules and procedures, practitioners can secure full appellate review on the merits.
ABOUT THE AUTHORS
Bevan Stockdell and Kimberly Carlson are staff attorneys to Judge E. Bay Mitchell, III on the Oklahoma Court of Civil Appeals. Collectively, they have more than 13 years of experience serving the appellate courts. Ms. Stockdell graduated with honors from the OU College of Law. She serves on the OBA YLD Board of Directors and is chair-elect for ReMerge of Oklahoma County, a female diversion program.
Ms. Carlson graduated summa cum laude from the OCU School of Law and received her B.F.A. in drama from OU. Previously, she was a term law clerk at the Oklahoma Court of Criminal Appeals.
1. See 12 O.S. 2011 §991(a).
2. This article does not address other post-trial motions, including motions for judgment notwithstanding the verdict and motions for attorney fees, costs or interest. The discussion is limited to civil appeals from Oklahoma district court decisions.
3. 12 O.S. 2011 §654(A).
4. 12 O.S. 2011 §651. Motions based on subsections (2), (3), (7), or (9) must be supported by affidavit. 12 O.S. §654(B).
5. See Horizons, Inc. v. Keo Leasing Co., 1984 OK 24, ¶6, 681 P.2d 757, 759 (language challenging judgment as “contrary to the prevailing Oklahoma law as reflected in applicable cases and statutes” deemed insufficient to preserve anything for appeal); see also Slagell v. Slagell, 2000 OK 5, ¶¶4, 6, 995 P.2d 114 (motion for new trial stating only that “the decision of the court is not sustained by the evidence, and is contrary to the law of the State of Oklahoma” was insufficient and required dismissal pursuant to Horizons).
6. Horizons, 1984 OK 24, ¶7, 681 P.2d at 759 (emphasis original).
7. 12 O.S. 2011 §653(A).
8. 12 O.S. 2011 §655; see id. §651(7).
9. See Malicoate v. Standard Life and Acc. Ins. Co., 2000 OK CIV APP 37, ¶15, 999 P.2d 1103; see also Nat’l Educators Life Ins. Co. v. Apache Lanes, Inc., 1976 OK 121, ¶8, 555 P.2d 600, 602 (new and independent allegations of error cannot be considered if filed beyond statutory 10-day period for filing new trial motion).
10. See 12 O.S. 2011 §991(b); Slagell, 2000 OK 5, ¶8.
11. See 12 O.S. 2011 §1031 and 12 O.S. Supp. 2013 §1031.1(B).
12. See 12 O.S. §1031.
13. 12 O.S. §1031.1(C) (emphasis added).
14. See 12 O.S. 2011 §1033.
15. See 12 O.S. 2011 §1038.
19. See 12 O.S. §1031.1(B); Schepp v. Hess, 1989 OK 28, ¶¶7-9, 770 P.2d 34, 37-38.
20. See 12 O.S. §1031.1(A); Schepp, 1989 OK 28, ¶9, 770 P.2d at 38.
21. See Schepp, 1989 OK 28, ¶8, 770 P.2d at 38.
22. Smith v. City of Stillwater, 2014 OK 42, ¶10, 328 P.3d 1192.
23. See Kerr v. Clary, 2001 OK 90, ¶7, 37 P.3d 841.
24. Smith, 2014 OK 42, ¶10, 328 P.3d 1192.
25. Horizons, 1984 OK 24, ¶4, 681 P.2d at 758-59.
26. Reeds v. Walker, 2006 OK 43, n.4, 157 P.3d 100; see also Kerr, 2001 OK 90, ¶¶7-8 (treating a “motion to reconsider” filed within 10 days as a motion to modify where “[i]ts content and substance were not the indicia of a motion for new trial”).
27. A post-trial motion filed within 10 days and titled “motion to vacate,” may also, depending on the content, be treated as a motion for new trial. See Bushert v. Hughes, 1996 OK 21, n.3, 912 P.2d 334, 335 (treating “motion to vacate” filed within 10 days and rested on grounds available under 12 O.S. §651 as motion for new trial); see also Horizons, 1984 OK 24, ¶4, 681 P.2d at 758-59 (same).
28. It should be noted appellate courts have treated “motions to reconsider” filed within 10 days as motions for new trial without providing any discussion of the substance and content of the motion. See, e.g., Whitaker v. Hill Nursing Home, 2009 OK CIV APP 41, ¶10, 210 P.3d 877, 881 (treating a “motion for reconsideration” as the legal equivalent of a motion for new trial); Sien v. Sien, 1994 OK CIV APP 159, ¶¶3-4, 34, 889 P.2d 1268, 1274-75 (finding 12 O.S. §991(b) applied to “motion to reconsider” filed before the judgment).
29. See 12 O.S. §991(b); Whitaker, 2009 OK CIV APP 41, ¶10; Sien, 1994 OK CIV APP 159, ¶¶34-5. There is no statutory equivalent for motions to vacate. See Bohm, Inc. v. Michael, 2002 OK CIV APP 60, n.2, 46 P.3d 1286 (“[A] party filing a motion to vacate is not specifically limited by statute to raising, on appeal, only the grounds asserted in the motion to vacate, as is the case with new trial motions pursuant to 12 O.S. 1991 §991(b).”); see also Bank of Am., N.A. v. Morris, 2014 OK CIV APP 91, ¶5, 338 P.3d 138 (Fischer, J., concurring in result) (“No similar rule limits the issues that may be raised in an appeal from an order granting or denying a motion to vacate.”). Accordingly, the practitioner also risks unknowingly waiving issues for appeal if she files a motion to vacate deemed the functional equivalent of a motion for new trial.
30. See SIT, SL v. Tulsa Turbine Engines & Aircraft, LLC, 2013 OK CIV APP 97, n.3, 313 P.3d 1035 (rejecting argument “motion to vacate” filed within 10 days should be treated as a motion for new trial because moving party specifically invoked 12 O.S. §1031.1 as grounds for vacating default judgment).
31. See 12 O.S.Supp.2017 §990A(A).
32. While not within the scope of this article, it is critical to know when there is an appealable order. See 12 O.S. 2011 §§696.2-696.3.
33. Holidays, weekends and other days the clerk’s office is closed are excluded when calculating the 30 days for appeal. See 12 O.S. 2011 §2006(A).
34. See 12 O.S. 2011 §990.2(A).
35. See 12 O.S. §653(C).
36. See 12 O.S. §990A(F)(1).
37. See id.
38. See 12 O.S. §990A(F)(2).
39. See 12 O.S. §990.2(A).
41. See Okla. Sup. Ct. R. 1.22(c)(2).
42. Okla. Sup. Ct. R. 1.301, Form No. 5.
43. See 12 O.S. 2011 §952(b)(2); 12 O.S.Supp.2013 §993(A)(8); Okla. Sup. Ct. R. 1.60(a)-(b); Okla. Sup. Ct. R. 1.20(b).
44. See 12 O.S. §990.2(B); Okla. Sup. Ct. R. 1.22(e); see also Neumann v. Arrowsmith, 2007 OK 10, ¶¶8-9, 164 P.3d 116 (treating untimely motion for new trial as “functional equivalent” of a motion to vacate pursuant to 12 O.S. §1031.1).
45. See 12 O.S. §990.2(B).
48. See Okla. Sup. Ct. R. 1.37(a)(3).
49. See 12 O.S. §990.2(B).
50. See 12 O.S. §952(b)(2); 12 O.S. §993(A)(8); Okla. Sup. Ct. R. 1.26(a).
51. See 12 O.S. §952(b)(2); 12 O.S. §993(A)(8). In an appeal from an order granting or denying a post-trial motion, the reviewing court does not look to the original judgment, but rather the correctness of the trial court’s response to the post-trial motion. See Kordis v. Kordis, 2001 OK 99, ¶6, 37 P.3d 866.
52. See 12 O.S. §952(b)(2); 12 O.S. §993(A)(8); Okla. Sup. Ct. R. 1.60(a)-(b); Okla. Sup. Ct. R. 1.20(b).