Opinion

Dewey v. State Ex Rel. Oklahoma Firefighters Pension & Retirement System

  • 72 O.B.A.J. 1488
  • 28 P.3d 539
  • 2001 OK 40
  • 2001 Okla. LEXIS 50
  • 2001 WL 482799
Court
Supreme Court of Oklahoma
Filed
May 8, 2001
Status
Published
Author
Opala
On the bench
Hargrave, Hodges, Lavender, Opala, Kauger, Summers, Boudreau, Winchester, Watt
Cited by
15 cases
Authority
More cited than 11.0%

The opinion

OPALA, J.,

concurring.

{ 1 The court imposes today the mandatory § 696.4 1 deadline of thirty days for add *550 ing prejudgment interest to an already memorialized recovery that was silent on that subject and treats the § 696.4 time limit as a temporal restriction upon the district court's exercise of power over applications, brought after a judgment's memorial has been placed on file, which tender for judicial determination disputes addressing certain enumerated items (a) that add to recovery or (b) that are incidents of the adjudicated recovery. 2 While I agree with the court's pronouncement, I add my view that the § 696.4 time bar is different in its impact on each of the components that are there enumerated. 3 These three statutorily listed components represent both (1) items of recovery that are to be added (eg., prejudgment interest) as well as (2) mere incidents of recovery which either (a) must be judicially determined (eg., attorney's fee and cost items that are not de cursu) or (b) run by operation of law (eg., postjudgment interest and de cursu costs).

T2 Legal practitioners must not be left adrift in the aftermath of today's opinion. Neither the bench nor the bar should have to guess or wonder whether today's pronouncement will make unenforceable postjudgment interest and de cursu costs 4 in all cases in which the judgment's memorial was silent on these incidents of recovery and there was no timely § 696.4 application for the incorporation of these items into the journal entry. By writing separately from the court I hope to equip the reader with a meaningful and much-needed analytical tool for a more profound understanding of the several discrete award components that are clustered together in § 696.4. The explanation I supply will no doubt assist the bench and bar in avoiding the hidden traps of that section's remedial regime for both enhancing am adjudged recovery as well as for merely adding certain incidents of memorialized recovery.

1 3 The precise issue now before the court, though correctly resolved, neither provides a complete answer to the myriad of potential § 696.4-spawned problems nor attempts to still likely-to-be-aroused concerns about the differing impact of today's pronouncement on each of the several components that are apt to be affected by this opinion. The first of these components is interest. If by this term, as the court holds today, botRk pre-and post-judgment interest stand included, the former would be considered an added component of recovery 5 whereas the latter is a mere incident of adjudged recovery. A judgment creditor's application for prejudgment inter *551 est's inclusion, such as that which was sought here, would be affected by the § 696.4 time bar but a quest for postjudgment interest would not. This is so because interest on a judgment runs by force of law and without any judicial intervention. 6 A postjudgment attorney's fee quest that seeks an allowance for the value of legal services due the prevailing party or some other statutorily-entitled litigant does not run by force of law. An application for postjudgment recovery of a counsel-fee award would be affected by the section's time-bar provisions. This is so because such award calls for an application and a hearing before the added allowance may be made. 7 Lastly, the § 696.4 time bar would not affect ordinary court costs, 8 or so-called de cursu cost items, which acerue by operation of law and sams judicial intervention. 9 Costs other than de cursu could not be collected if pressed for taxation after the § 696.4 time bar.

. The pertinent provisions of 12 O.S. Supp. 1995 § 696.4 include:

*550 "A. A judgment, decree or appealable order may provide for costs, attorney's fees and interest or any of these items, but it need not include them. The preparation and filing of the judgment, decree or appealable order shall not be delayed pending the determination of these items. Such items may be determined by the court if a timely request is made, regardless of whether a petition in error has been filed. B. If attorney's fees, costs or interest have not been included in the judgment, decree or ap-pealable order, a party seeking any of these items must file an application with the court clerk along with proof of service of the application on all affected parties ... The application must set forth the amount requested and include information which supports that amount. The application must be filed within thirty (30) days after the filing of the judgment, decree or appealable order. * * * For good cause shown, the court may extend the time for filing the application upon motion filed within the time that the application could be filed. Within fifteen (15) days after the application is filed with the court, any party may file written objections to it, with a copy to the moving party."

. Temporal restrictions on the court's power to act differ from ordinary statutes of limitations. For an explanation of the conceptual difference between legislation that temporally restricts the court's exercise of power and the statutes of limitation, which extinguish merely the remedy, see Matter of the Estate of Speake, 1987 OK 61, ¶ 13 , 743 P.2d 648, 652 ; U.S. Through Farmers Home Admin. v. Hobbs, 1996 OK 77, ¶¶ 1-8 , 921 P.2d 338, 344-345 (Opala, J., concurring in judgment but not in the court's opinion}.

. The components listed in 12 O.S.Supp. 1995 § 696.4, supra note 1, include: (1) costs (2) an attorney's fee and (3) interest.

. Oklahoma's practice of treating some costs as taxable "of course" follows the common law's de cursu taxation of costs. For a discussion of cost items taxable de cursu, see Chamberlin v. Chamberlin, 1986 OK 30, ¶ 11 , 720 P.2d 721 , 726 n. 25.

. Prejudgment interest, which is a recovery component, is different from postjudgment interest. May-Li Barki, M.D., Inc. v. Liberty Bank and Trust Co., 1999 OK 87, ¶ 4 , 20 P.3d 135, 142-143 (supplemental opinion on rehearing); Fleet v. Sanguine, Ltd., 1993 OK 76 , ¶ 11, 854 P.2d 892, 899 .

. Postjudgment interest is provided for by the terms of 12 O.S. Supp. 1999 § 727:

"A. 1. Except as otherwise provided by this section, all judgments of courts of record, including costs and attorney fees authorized by statute or otherwise and allowed by the court, shall bear interest at a rate prescribed pursuant to this section.

2. Costs and attorney fees allowed by the court shall bear interest from the earlier of the date the judgment or order is pronounced, if expressly stated in the written judgment or order awarding the costs and attorney fees, or the date the judgment or order is filed with the court clerk.

C. The postjudgment interest authorized by subsection A or subsection B of this section shall accrue from the earlier of the date the judgment is rendered as expressly stated in the judgment, or the date the judgment is filed with the court clerk, and shall initially accrue at the rate in effect for the calendar year during which the judgment is rendered until the end of the calendar year in which the judgment was rendered, or until the judgment is paid, whichever first occurs." * * *

{emphasis added).

The trial court's enforcement of postjudgment interest is not impermissible, even though that interest was not included in the text of the judgment's memorial. Baldwin v. Collins, 1970 OK 210, ¶ 14 , 479 P.2d 567, 570 .

. Burk v. City of Oklahoma City, 1979 OK 115, ¶¶ 17-22 , 598 P.2d 659, 662-63 .

. Chamberlin, supra note 4 at 111, at 726 n. 25. Statutory de cursu taxation of ordinary costs is authorized by 12 O.S. 1991 § 928. Its terms provide:

"'Where it is not otherwise provided by this and other statutes, costs shall be allowed of course to the plaintiff, upon a judgment in his favor, in actions for the recovery of money only, or for the recovery of specific, real or personal property."

(emphasis supplied).

. "Costs and [postjudgment] interest are recoverable by statute whether set out in the judgment or not." Baldwin, supra note 6 , at 114, at 570.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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