Nearly every time two parties enter a courtroom, at least one leaves unhappy. It is the nature of our adversarial system. As an appellate lawyer, I routinely receive calls from trial counsel who are sitting in a district court parking lot, fuming. Inevitably, the district court’s ruling was “completely wrong,” and they want to know how to “take this up to the Supreme Court” immediately.

Most often, once they get back to the office, cooler heads have prevailed. We walk through the rules of finality and, if the district court’s order is indeed final or otherwise appealable as of right, the procedures for appellate review. Sometimes, however, the trial court’s order is not final, but the circumstances of the case make immediate review truly necessary. Accordingly, it is important to be familiar with the various paths to obtaining review in the Oklahoma Supreme Court.

There are two primary mechanisms for obtaining Supreme Court review of a district court order: 1) appeals as of right and 2) discretionary review. This article will discuss the various types of trial court orders reviewable on appeal and the different Supreme Court procedures that are applicable to each type of review.

APPEALS AS OF RIGHT

As one might expect, the vast majority of the Oklahoma Supreme Court’s docket consists of appeals as of right. Primarily, these are appeals from judgments and final orders; however, certain types of interlocutory orders are also immediately reviewable. The nature of the underlying trial court order determines the type of appellate proceeding.

Judgments and Final Orders

Title 12, Section 952(a) gives the Oklahoma Supreme Court jurisdiction to review “judgments of the district court.” A “judgment” is defined as “the final determination of the rights of the parties in an action.”[1] This includes the ordinary judgment that is entered after a jury or bench trial. It also includes orders of dismissal and orders granting summary judgment, so long as they resolve all pending claims. And it includes various other orders enumerated in Supreme Court Rule 1.20, including adoption decrees, paternity determinations, driver’s license orders, small claims awards, condemnation orders and probate distributions.

To qualify as a final “judgment,” an order need not include a statement of costs, attorney fees or post-judgment interest – those issues may be deferred for post-judgment proceedings.[2] Any other outstanding issues, however, must be fully and finally determined. A judgment may not reserve issues like punitive damages or prejudgment interest for future resolution, and it may not contemplate future action, like the preparation of findings or a proposed judgment by the parties.[3]

In addition to “judgments,” the Supreme Court also has jurisdiction to review “final orders.”[4] These include, for example, orders granting or denying attorney fees, costs or interest;[5] orders terminating parental rights;[6] orders confirming or refusing to confirm an arbitration award;[7] orders denying leave to intervene;[8] and orders disqualifying counsel.[9] They also include any orders that “conclusively determine the disputed question then before the court” and effectively “leave the aggrieved party without any relief at nisi prius because the defeated litigant stands precluded from proceeding further in the case.”[10]

When a case involves multiple parties or multiple claims, orders that fully resolve one part of the case may be certified by the district court as “final” pursuant to 12 O.S. §994(A). For an order to be considered final and appealable under Section 994(A), the district court must both 1) make an express determination that “there is no just reason for delay” and 2) expressly direct that the order be filed as final.[11] However, such certification by the district court, while necessary, is not always sufficient to transform a nonfinal order into a final one. When counterclaims or other claims arising from the “same transaction or occurrence” remain pending in the trial court, the Supreme Court may consider certification under Section 994 to have been improper and dismiss the appeal as premature.[12]

Whether the ruling at issue is a “judgment” or a “final order,” before it may be reviewed on appeal, it must be reduced to writing and filed by the court clerk ­– an oral ruling is not appealable.[13] The written order must contain the case caption, the signature and title of the trial court and a complete statement of the relief awarded.[14] Furthermore, it must not be titled in a manner that indicates informality or incompleteness: Orders titled “minute,” “minute order,” “verdict,” “docket entry,” “summary order” or the like are not final and appealable.[15]

Appeals from judgments and final orders are governed by Supreme Court Rules 1.20-1.37. An appeal is commenced by filing a petition in error in the Supreme Court and paying the requisite fees within 30 days of the entry of the order (or its mailing, in certain circumstances).[16] [17] Certain post-trial motions, such as motions for new trial filed within 10 days of the judgment, will toll this appellate deadline.[18] The rules for tolling are complicated and can be a trap for the unwary, however, and the deadline to commence an appeal is jurisdictional. Practitioners should, therefore, always carefully check and double-check their appellate deadlines and consider filing a protective appeal if the finality of an order or the application of the tolling rule is in doubt.

Most appeals involving judgments and final orders are governed by Supreme Court Rules 1.20-1.35. The parties designate the items to be included in the appellate record by listing them and/or circling them on the district court docket sheet.[19] The district court clerk then has six months from the date of the underlying order to compile the record as designated.[20] It is the appellant’s responsibility to check in with the district court clerk throughout this process to ensure all designated items are available, and the record will be completed within the designated time period.[21]

Once the district court has finished compiling the record, the clerk will file a notice of completion of record in the Supreme Court, which triggers the appellate briefing cycle. The appellant’s opening brief is due 60 days from the filing of the notice of completion.[22] The response is due 40 days after the opening brief, and the reply is due 20 days after the response.[23] There are separate briefing rules for cross- and counter-appeals, and there are shorter briefing deadlines for specific types of appeals, like driver’s licenses and juvenile appeals, so parties should always double-check the Supreme Court rules before preparing their appellate briefs.

If the judgment or final order being appealed is an order granting a motion for summary judgment or motion to dismiss, a special “accelerated” procedure applies.[24] The record is limited to certain items (primarily the petition, answer and relevant motion briefing and hearing transcripts), and rather than simply designate items in the record for the court clerk to compile later, the appellant must itself obtain copies of all record items, compile and have them certified by the district court and then submit this certified record along with the petition in error. Absent special circumstances, no appellate briefing is allowed in an accelerated appeal – the appellate court will review only the one-page summary and statement of issues set forth in the petition in error, along with the briefing that was filed in the district court.[25]

Interlocutory Orders Appealable by Right

In addition to judgments and final orders, there is another category of orders appealable as a matter of right. The Legislature has identified certain types of interlocutory orders that are not final but, nonetheless, are generally critical enough, despite their interlocutory nature, to warrant immediate appellate review. These “interlocutory orders appealable by right” include orders granting a motion for new trial or motion to vacate a judgment, orders granting or denying a temporary injunction, attachment orders, orders appointing or refusing to appoint a receiver, orders directing or refusing to direct the payment of money pendente lite, orders certifying or refusing to certify a class action, orders referring or refusing to refer a matter to arbitration, orders denying motions to dismiss under the Oklahoma Citizens Participation Act[26] and certain probate and protective orders.[27]

Because these orders are, by definition, not final and, thus, the underlying trial court proceedings may remain ongoing, the procedure for appellate review is substantially accelerated. Like with a judgment or final order, an appeal from an interlocutory order appealable by right is commenced by filing a petition in error and paying the requisite fees within 30 days.[28] The other appellate deadlines, however, are much shorter. The response to the petition in error and the counter-designation of record must be filed within 10 days, not 20.[29] The record must be completed by the district court within 60 days, not six months.[30] And the appellate briefing schedule is substantially abbreviated, with the opening brief due 30 days from the notice of completion of record, the response due 20 days after the opening brief and the reply due a mere 10 days after the response.[31] Parties not familiar with the different types of appeals often get caught unaware and miss these deadlines, so as always, be sure to consult the Supreme Court rules when calendaring these appeals.

DISCRETIONARY REVIEW

In addition to appeals as a matter of right, the Supreme Court also reviews certain trial court orders as part of its discretionary docket. Review under these procedures is extraordinarily rare, however, and counsel should advise their clients about both the costs and the likelihood of success when attempting to obtain early review under these procedures.

Review of Certified Interlocutory Orders Under 12 O.S. §952(b)(3)

First, 12 O.S. §952(b)(3) permits, but does not require, the Supreme Court to review an order that is not final but, nevertheless, “affects a substantial part of the merits of the controversy,” so long as the district court certifies that an immediate appeal of that order “may materially advance the ultimate termination of the litigation.” This form of review is doubly discretionary: First, the district court must agree to certify the order; second, the Supreme Court must itself determine that immediate review is warranted.[32] And while district courts may be willing to certify orders for immediate review fairly often, the Supreme Court grants certiorari in such cases very rarely. Indeed, a review of published Supreme Court cases suggests that review under Section 952(b)(3) is granted no more than a couple of times per year.[33] Further, the Supreme Court has made clear that it will not review any order denying a motion for summary judgment under this procedure.[34]

Reiterating the fact that review under Section 952(b)(3) is entirely discretionary, the filing required to invoke this procedure in the Supreme Court is termed a “petition for certiorari,” not a “petition in error.”[35] While there is no deadline to request certification in the district court, the petition and requisite fee must be filed within 30 days of the trial court’s certification order. Importantly, a motion for a new trial or a motion for reconsideration will not extend this deadline.[36]

The petition for certiorari must be accompanied by a concise statement of the record and “the reasons why the order should be reviewed in advance of final judgment.”[37] Notably, this statement must be signed by the trial court.[38] Accordingly, if a lawyer decides to seek certification of an interlocutory order under Section 952, they would be wise to have this statement prepared in advance so that it may be signed by the court at the same time as the certification.

Much like an appeal of an interlocutory order appealable by right, the review of a certified interlocutory order under Section 952(b)(3) takes place on a much faster timetable than an ordinary appeal. Instead of having six months to prepare the record, the district court has a mere 30 days from the date of the order granting certiorari.[39] The briefing cycle, moreover, is extraordinarily quick: The opening brief must be filed within 20 days of completion of the record, the response is due 10 days later, and the reply is due a mere five days after that.[40] Again, these deadlines and unique requirements often take inexperienced practitioners unaware, so be sure to consult the Supreme Court rules when considering a request to certify an interlocutory order under Section 952(b)(3).

Extraordinary Relief

Finally, the Supreme Court has expansive original jurisdiction under Article 7, Section 4 of the Oklahoma Constitution, which includes the authority to issue extraordinary writs (e.g., writs of mandamus or prohibition).[41] If a trial court’s interlocutory ruling is so problematic that immediate review is necessary and no adequate remedy on appeal exists, a party may file an application to assume original jurisdiction and seek extraordinary relief from that order.

As with the certification procedure under Section 952(b)(3), the Supreme Court’s exercise of its original jurisdiction is wholly discretionary, and it exercises that discretion quite rarely. Indeed, the relief requested in an original action is, by definition, “extraordinary.” The court is most likely to exercise its original jurisdiction in cases involving the public interest.[42] [43] It may also, however, choose to intervene early in a trial court proceeding when the court has made an error for which there would be no adequate remedy on appeal. As such, the Supreme Court has exercised its original jurisdiction and immediately reviewed trial court orders on, inter alia, questions of forum selection (e.g., personal jurisdiction, venue and forum non conveniens), disputes over the right to a jury trial, qualified immunity or other immunity issues, and discovery disputes when an error would be difficult to remedy after the fact (e.g., orders to produce privileged material or to submit to medical examination).[44]

Original jurisdiction proceedings are governed by Supreme Court Rules 1.90-1.193. They are commenced by filing an application to assume original jurisdiction and a petition for extraordinary relief (and the requisite fees) in the Supreme Court. There is no deadline for filing such an application, but it cannot be filed within 10 days of a trial absent extraordinary circumstances.[45] The application and petition should be accompanied by a supporting brief, as well as an appendix with any record materials that are necessary for the court to review.[46] Upon the filing of an original action, the court will generally set a date for a response, as well as set the matter for hearing before a Supreme Court referee.

CONCLUSION

In addition to judgments and final orders, there are several types of interlocutory orders that, by statute, are immediately appealable as a matter of right. If the order at issue is not one of those statutorily enumerated orders, however, Supreme Court intervention in an ongoing trial court proceeding is the exception, not the rule. Accordingly, while there are multiple paths to discretionary review of an interlocutory order, clients should be cautioned about both the costs and the likelihood of success when seeking such review.

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ABOUT THE AUTHOR
Melanie Wilson Rughani is a shareholder and director at Crowe & Dunlevy PC, where she serves as co-chair of both the Appellate and Initiative Petitions practice groups. She regularly handles appeals and original actions in the Oklahoma Supreme Court.

 

 

 

 

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ENDNOTES

[1] 12 O.S. §681, Sup. Ct. R. 1.20(a).

[2] 12 O.S. §696.3(B).

[3] See, e.g., Jones v. Tubbs, 1993 OK 118, ¶6, 12 O.S. § 696.3(B).

[4] 12 O.S. §952(b)(1).

[5] Sup. Ct. R. 1.20(b)(6), 12 O.S. §990.2.

[6] 10 O.S. §7505-4.1(I); Sup. Ct. R. 1.20(b)(7).

[7] 12 O.S. §1879.

[8] Sup. Ct. R. 1.20(b)(5).

[9] See Bd. of Cty. Comm’rs v. Assoc. of Cty. Comm’rs of Okla. Self-Insured Group, 2021 OK 15, ¶9; Arkansas Valley State Bank v. Phillips, 2007 OK 78.

[10] Hammonds v. Osteopathic Hosp. Founders Ass’n, 1996 OK 54, ¶3 (holding that order imposing monetary sanctions on attorney before judgment was immediately appealable because attorney was not a party and setting out this two-pronged test); see also Sup. Ct. R. 1.20(b).

[11] 12 O.S. §994(A).

[12] See, e.g., Andrew v. Depani-Sparkes, 2017 OK 42, 396 P.3d 210; Liberty Bank & Trust Co. of Okla. City, N.A. v. Rogalin, 1996 OK 10, ¶10, 912 P.2d 836.

[13] 12 O.S. §696.2(A).

[14] Id. §696.3(A).

[15] See 12 O.S. §696.2(D); Laubach v. Laubach, 2022 OK 78.

[16] Sup. Ct. R. 1.23.

[17] Note that the form for a petition in error also requires a certified copy of the judgment, decree or final order, as well as the signature of the court reporter, if a transcript is involved, so practitioners who plan to appeal should make arrangements to obtain these as soon as possible after the order is issued. See Sup. Ct. R. 1.301, Form 5.

[18] See Sup. Ct. R. 1.22(c).

[19] See Sup. Ct. R. 1.28.

[20] Sup. Ct. R. 1.34.

[21] Id.

[22] Sup. Ct. R. 1.10(a).

[23] Id.

[24] Rule 1.36.

[25] Rule 1.36(g).

[26] 12 O.S. §1437.

[27] See Sup. Ct. R. 1.60 (enumerating these and other interlocutory orders appealable by right); 12 O.S. §993(A); see also 12 O.S. §952(b)(2) (granting the Supreme Court jurisdiction to review any “order that discharges, vacates or modifies or refuses to vacate or modify a provisional remedy which affects the substantial rights of a party; or grants, refuses, vacates, modifies or refuses to vacate or modify an injunction; grants or refuses a new trial; or vacates or refuses to vacate a final judgment”).

[28] Sup. Ct. R. 1.61.

[29] Sup. Ct. R. 1.63; 1.28(b)(1).

[30] Sup. Ct. R. 1.64.

[31] Sup. Ct. R. 1.65.

[32] 12 O.S. §952(b)(3).

[33] For examples of cases where the Supreme Court has granted certiorari under Section 952(b)(3), see, e.g., Purcell v. Parker, 2020 OK 83 (granting certiorari to address whether the notice by publication provisions of statute relating to stream water permits are constitutionally adequate where affected landowner’s address is easily discoverable); Carlson v. City of Broken Arrow, 1992 OK 163 (granting certiorari under §952(b)(3) to consider whether multiple wrongful death claims against a political subdivision must be aggregated under the Governmental Tort Claims Act); Knight ex rel. Ellis v. Miller, 2008 OK 81 (granting certiorari under §952(b)(3) to consider whether a plaintiff in a negligence case has standing to bring a declaratory judgment action against the alleged tortfeasor’s insurer before that tortfeasor had been found liable); Ross v. Kelsey Hayes, Inc., 1991 OK 83, ¶3 (granting certiorari to review order denying motion to dismiss action as barred by statute of limitations) (note, other statute of limitations cases have been refused on ground that they did not go to “merits”).

[34] Sup. Ct. R. 1.50.

[35] Sup. Ct. R. 1.51.

[36] Sup. Ct. R. 1.51(b).

[37] Sup. Ct. R. 1.52.

[38] Id.

[39] Sup. Ct. R. 1.54.

[40] Sup. Ct. R. 1.55.

[41] Article 7, Section 4 of the Oklahoma Constitution.

[42] See, e.g., Edmondson v. Pearce, 2004 OK 23 (assuming original jurisdiction and granting declaratory judgment that cockfighting statute was constitutional, even when multiple cases were pending in the district courts).

[43] Melanie Wilson Rughani, “‘Of Public Right’: A Modern Look at the Age-Old Doctrine of Publici Juris and Its Discretionary Application in Appeals and Original Actions Involving the Public Interest,” OBJ, Vol. 94, No. 2.

[44] See, e.g., Powell v. Seay, 1976 OK 117 (issuing writ of prohibition to prevent court from proceeding in case against district attorney based on prosecutorial immunity); Floyd v. Ricks, 1998 OK 9 (granting writ of mandamus directing trial court to require insurer to participate in discovery, even where it urged that the lawsuit was “frivolous”); Farr v. VanMeter, 1970 OK 231 (granting writ of mandamus, requiring trial court to order plaintiff to submit herself to a medical examination); Goodner v. Lindley, 1986 OK 40 (prohibiting trial court from enforcing order requiring alleged incompetent to submit to medical examination in guardianship proceeding); Funnell v. Cannon, 1978 OK 166 (granting writ to require court to permit court reporter to transcribe hearing); Butler v. Breckinridge, 1967 OK 177, ¶33; Constant v. Biggers, 1976 OK 77, ¶13-14 (assuming original jurisdiction where appeal would not be sufficiently speedy or equally advantageous).

[45] Sup. Ct. R. 1.191(i).

[46] Sup. Ct. R. 1.191(c), (d).