Oklahoma Bar Journal
Recent Changes to the Oklahoma Supreme Court Rules: What Practitioners Need to Know
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.
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.
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.
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 1.21 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:
The court subsequently amended Rule 1.21(a) to make clear what is not considered an appealable order:
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.
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:
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.
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:
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.
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.
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.”
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.
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.
[1] Okla. Sup. Ct. R. 1.4(c).
[3] In re Amendment of Rules 1.4 and 1.23 of Okla. Sup. Ct. Rules, 2021 OK 23, Ex. A.
[7] In re Amendment of Rules 1.5 and 1.200 of Okla. Sup. Ct. Rules, 2022 OK 70, Ex. A.
[10] Nina J’s Dispensary, LLC v. Raja Ijaz, LLC, Raja Ahmed, Case No. 120,303, Pet. in Error (Apr. 1, 2022).
[12] Id., Order (April 11, 2022).
[13] 1989 OK CIV APP 82, 828 P.2d 438.
[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.
[22] In re Establishment of Rule 1.19 of Okla. Sup. Ct. Rules, 2019 OK 51, Ex. A.
[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.
[39] In re Amendment of Rules 1.4 and 1.23 of Okla. Sup. Ct. Rules, 2021 OK 23, Ex. A.
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.
[45] Okla. Sup. Ct. R. 1.60.
[47] In re: Amendment to Oklahoma Sup. Ct. R. 1.60, Ex. A.
[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.
Originally published in the Oklahoma Bar Journal – OBJ 94 Vol 2 (February 2023)