# Bane v. Anderson, Bryant & Co.

> Supreme Court of Oklahoma · November 2, 1989 · 786 P.2d 1230

URL: https://www.frixlaw.com/law-library/cases/9885724

## Case

- **Full name:** Mary E. BANE, Appellee, v. ANDERSON, BRYANT & CO. and Gary E. Bryant, Appellants
- **Court:** Supreme Court of Oklahoma
- **Decided:** November 2, 1989
- **Citations:** 786 P.2d 1230; 1989 WL 125356
- **Precedential status:** Published
- **Opinion:** Concurring in part by Opala
- **Judges:** Summers
- **Cited by:** 75 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9885724

## Opinion text

OPALA, Vice Chief Justice,
concurring in part and dissenting in part.
In part I of its opinion the court holds that when one of two aggrieved parties represented by the same counsel is “inadvertently omitted” from a timely-filed petition in error, the missing entity may nonetheless be treated as a co -party appellant even though it did not seek to join the appeal until after the expiration of maximum statutory time to invoke this court’s reviewing cognizance. I must recede from this part of today’s pronouncement. In my view, a party’s failure to be expressly included upon the face of a timely-filed petition in error as a party appellant is a failure to appeal. No less authority than our nation’s highest tribunal is unequivocally committed to this mechanical norm of adjective law. 1
Gary E. Bryant [Bryant] seeks to join this appeal as an additional party appellant. He argues that “through inadvertence” he was not named or otherwise designated as relief seeker in the petition in error timely filed by appellant, Anderson, Bryant & Co. [Company]. Both Bryant and Company are represented by the same lawyers. Larry John Phillips [Phillips], appearing by separate counsel, seeks to join as appellant in this appeal for the same reason as that urged by Bryant. The court treats Bryant as though he “always has been” a legitimate appellant but excludes Phillips. I would reject both of these belated attempts to ride piggy-back on another litigant’s timely-filed petition in error.
After expressly conceding “it is too late for him [Bryant] to become an appellant,” the court departs from time-honored norms of appellate procedure to fashion a new rule: When two or more aggrieved parties have common representation and one of them is mistakenly left out of a timely-filed petition in error, the otherwise fatal omission, discovered after appeal time has expired, becomes now correctable by counsel’s self-serving statements pieced together with select allegations of error 2 and trial court “findings.” In my view, neither common representation nor oblique reference made to multiple parties in the assign *1239 ments of error provides legal warrant for today’s magic transmutation of an omitted relief seeker into a co-party appellant. 3
Only last month this court shifted to the appellee the risk of untimely postal delivery of a certiorari petition. 4 Similarly today the court reallocates to the wrong party — the appellee —the risk of (a) nonde-signation, (b) maldesignation, (c) misdesig-nation or (d) ambiguity for lack of explicit and timely designation of a party appellant. I would instead follow the unbroken precedent and cast on the party who desires appellate review the risk of its failed inclusion as an explicit corrective relief seeker in another party’s timely-filed petition in error.
Under today’s standards for the legal profession’s rescue from fatal consequences of sloppy practice, a defeated litigant, who has not been named as an appellant on the face of another party’s timely-filed petition in error, may nonetheless be declared to have been a legitimate co-party appellant from the very inception. I cannot countenance a norm of adjective law that invites careless practice and puts a premium on ambiguity. ■ This state’s time-honored legal tradition counsels a far more considerate treatment for parties who prevail at nisi prius. Not later than on the morning of the day following the expiration of the maximum statutory time for appealing, the successful trial-court litigant is entitled to be afforded the means of ascertaining, from mere facial inspection of an adversary’s petition in error, those parties against whom the judgment remains subject to judicial review, and must be afforded the opportunity to identify with accuracy, from the four corners of that single document, those litigants against whom the adjudicated obligation has become enforceable as final. Today’s pronouncement deprives judgment creditors of this very minimal and essential certainty with respect to a judgment’s finality.
The omission of an aggrieved party’s name from the petition in error is in fact and in law that party’s failure to meet the jurisdictional deadline. 5 The fact that neither Phillips nor Bryant was named in *1240 the caption or was otherwise identified as an appellant in the body of any petition in error filed in this case is undisputed, 6
This court’s reviewing cognizance is in vocable only “in the manner provided by law.” Art. 7, § 4, Okl. Const. 7 The Supreme Court is powerless to entertain a plea for corrective relief lodged after the expiration of statutory period; failure to bring a timely appeal constitutes a jurisdictional defect. 8
An amendment to a petition in error is permitted only to include or amplify issues raised below, not to add parties. 9 Allowing either applicant to seek review after the lapse of maximum period allowed by law would result in an unauthorized judicial extension of the statutory time for invoking this court’s power to grant corrective relief. 10 The law has never permitted one who has not timely appealed, counter-, or cross-appealed, to advance for review any reversible error. 11
Today’s pronouncement is contrary to at least one recent disposition in a case where two aggrieved parties, represented by separate counsel, sought corrective relief in this court. Only one of them timely appealed. The second brought its own petition in error fifty-two days after the ap-pealable event had occurred. Conceding its attempt to invoke our reviewing power came too late, the second party moved for its own appeal’s dismissal and sought to be included as a party appellant in the timely appellant's cause. This court denied the *1241 quest, holding that to allow the tardy litigant’s participation as an appellant in the timely appeal brought by another party “would contravene the jurisdictional time limit of 12 O.S.1981, § 990.” 12
The 'precise identity of the appealing party or parties represents critical information the appellant is required to include within the caption and hence within the four corners of the petition in error. This is the clear mandate of this court’s April 3, 1972 order which implements the provisions of 20 O.S.1971 § 3002. The order expressly enjoins that “[t]he appealing party shall be designated in the caption as ‘Appellant’ ...” [emphasis mine]. See 20 O.S. 1981 § 3002 and the Supreme Court’s order that accompanies that statute’s text.
A petition in error is Oklahoma’s counterpart of a federal-court notice of appeal. When timely filed, each instrument invests the appellate court with reviewing cognizance. 13 In a recent U.S. Supreme Court case a party’s name concededly was omit *1242 ted from a notice of appeal because of a clerical error by an employee of that party’s lawyer — a scenario nearly identical to that in this case. The Court held “[t]he failure to name a party in a notice of appeal is more than excusable ‘informality;’ it constitutes a failure of that party to appeal. [Emphasis added.]” 14 I would adopt for Oklahoma the very same ration nale as that laid down by our nation’s highest tribunal. It is entirely consistent not only with Oklahoma’s own procedural regime but also with the uninterrupted course of this state’s jurisprudence.
In sum, because Bryant and Phillips both failed to bring a timely petition in error, I would reject their belated quest for the status of parties appellant. While I agree with the court’s treatment of the issues raised by the sole legitimate appellant (Company), I dissent from that part of the opinion which recognizes Bryant as an ab initio co-party appellant — i.e., one who may invoke corrective relief. In my view, the judgment against Bryant became final by lapse of time when he failed to bring a timely appeal or to join that of the Company within the maximum statutory interval.
. Procedural rules must be applied mechanically to avoid the uncertainties that arise when exceptions are created. Torres v. Oakland Scavenger Company, infra note 14 and United States v. Indrelunas, infra note 13.
. The presence of references in Company's petition in error to unnamed defendants below — in plural form — does not, in my view, provide the magic wand for tramsmogrifying this appeal, in which but one appellant is explicitly named, into a proceeding in error that includes two designated parties appellant.
. The court patently errs when it accepts as true and acts on a lawyer's after-the-fact, self-serving affidavit stating that Bryant’s name was inadvertently omitted from a petition in error and that its omission could not have been discovered with due diligence before the maximum time for commencing an appeal had expired. Appellate records are neither amendable nor impeachable by means of an affidavit. Jenkins v. State, 11 Okl.Cr. 168 , 145 P. 500, 502 [1914]; State ex rel. Department of Highways v. Lehman, Okl., 462 P.2d 649, 650 [1969],
. In Miller v. B.F. Goodrich Co., No. 69,636, by unpublished September 25, 1989 order, this court retroactively extended the time to file an untimely brought certiorari petition. Although the defeated litigant in the Court of Appeals had mailed the instrument to this court’s clerk before expiration of the prescribed time for filing, its postal delivery came too late. By accepting the belated certiorari petition as timely, the court makes the nisi prius victor bear the risk of postal misdelivery, nondelivery or late delivery. See Miller v. B.F. Goodrich Co., No. 69,636, September 26, 1989 (unpublished dissenting opinion by Opala, V.C.J., with whom Lavender, J., joined). Similarly here it is the prevailing party who is made to bear the risk of a fatal omission from a timely-filed petition in error.
. 12 O.S.1981 §§ 990 and 992, infra; Presbyterian Hosp. v. Bd. of Tax-Roll Corr., Okl., 693 P.2d 611, 615 (1984); Western Okl. Chapter, Etc. v. State, Etc., Okl., 616 P.2d 1143, 1147 (1980). The pertinent terms of 12 O.S.1981 § 990 provide:
"An appeal to the Supreme Court may be commenced from an appealable disposition of a court or tribunal by filing with the Clerk of the Supreme Court a petition in error, within thirty (30) days from the date of the final order or judgment sought to be reviewed.
“Provided, however, that in all cases the record on appeal shall be complete and ready for filing in the Supreme Court within the time prescribed by rules of that court but within a period of not more than six (6) months from the date of the order or judgment complained of unless the Supreme Court, for good cause shown, shall extend the time. Provided, further, that, except for the filing of a petition in error as provided herein, all steps in perfecting an appeal are not jurisdictional. [Emphasis added.]”
The pertinent terms of 12 O.S.1981 § 992 provide:
"Where possible, errors in perfecting an appeal must be raised promptly in the trial court, and errors in perfecting an appeal that could have been raised in the trial court may not be raised for the first time in the appellate court. The parties may waive any defect or error in perfecting an appeal except the timely *1240 filing of a petition in error.... [Emphasis added.]”
. Company filed an amended petition in error in which neither Bryant nor Phillips was designated or mentioned as a co-appellant. Their later applications to be included in this appeal may not be treated as petitions in error. Those instruments were filed well beyond the 40-day period allowed for bringing a petition in error after an appeal in the case has already been commenced by another party. 12 O.S.Supp. 1984 § 990.1 See also Rule 1.18(a), Rules of Appellate Procedure in Civil Cases, 12 O.S.Supp. 1984, Ch. 15, App. 2, whose pertinent terms are:
“If a petition in error has been timely filed to commence an appeal from an appealable decision, then any party aggrieved by the same decision may file its petition in error within forty days of the date the appealable decision was rendered. * * * [Emphasis added.]"
. The pertinent terms of Art. 7, § 4, Okl. Const., provide:
“The appellate jurisdiction of the Supreme Court shall be coextensive with the State and shall extend to all cases at law and in equity; * * * The appellate and the original jurisdic- ■ tion of the Supreme Court and all other appellate courts shall be invoked in the manner provided by law. [Emphasis added.]"
. See the authorities cited supra note 5.
. Tisdale v. Wheeler Bros. Grain Co., Inc., Okl., 599 P.2d 1104, 1106 (1979); Ogle v. Ogle, Okl., 517 P.2d 797, 799 (1973). See also, State v. County Beverage-License No. ABL-78-145, Okl., 652 P.2d 292, 294-295 (1982); Rule 1.17(a), Rules of Appellate Procedure in Civil Cases, 12 O.S.1981, Ch. 15, App. 2, which provides:
“The petition in error may be amended at any time before brief in chief is filed, or thereafter by leave of court, to include any error or any issue presented to and resolved by the trial court which is supported by the record, but if a party has filed a motion' for new trial, errors either not alleged in that motion or not fairly comprised within the grounds alleged therein may not be asserted on appeal by such par-ty_ [Emphasis added.]”
. See the authorities cited supra notes 5 and 7; Rule 1.15(a), Rules of Appellate Procedure in Civil Cases, 12 O.S.Supp.1985, Ch. 15, App. 2, which provides:
“The petition in error shall be filed within thirty days from the final judgment or final order; appellant shall attach to the petition in error a copy of the designation of record filed in the trial tribunal pursuant to Rule 1.20(a). The interval allowed for filing a petition in error may not be extended by either the trial tribunal or this Court. For cross or multiple appeals Rule 1.18 is applicable. [Emphasis added.]”
. See State v. County Beverage License No. ABL-78-145, supra note 9; May v. May, Okl., 596 P.2d 536, 540 (1979); Ogle v. Ogle, supra note 9 ; Holshouser v. Holshouser, 166 Okl. 45 , 26 P.2d 189 (1933) (syllabus 2); Sharum v. City of Muskogee, 43 Okl. 22 , 141 P. 22 (1914) (syllabus 1); see also, Price v. Reed, Okl., 725 P.2d 1254 , 1261 n. 29 (1986); Nilsen v. Tenneco Oil Co., Okl., 614 P.2d 36, 39 (1980); cf. Woolfolk v. Semrod, Okl., 351 P.2d 742, 745 (1960) (a successful party may, without a counter- or cross-appeal, argue before an appellate court only those errors which, if rectified, would support the correctness of the trial court’s judgment).
. See Rice v. Bd. of Review for the Okl. Empl. Sec. Com’n, the Okl. Sec. Com’n and Adair State Bank, No. 71,557, unpublished October 17, 1988 dismissal order, whose text is as follows:
“ORDER
"Petition in error filed by Oklahoma Employment Security Commission on September 9, 1988, is dismissed as untimely pursuant to the Commission’s motion of October 5, 1988. The Commission’s motion to join the earlier, timely petition in error of Adair State Bank is denied. To permit such joinder would contravene the jurisdictional time limit of 12 O.S.1981, § 990. See, State v. County Beverage License No. ABL-78-145, Okl., 652 P.2d 292 (1982); Ogle v. Ogle, Okl., 517 P.2d 797 (1973).
“Appeal by the Oklahoma Security Commission filed September 9, 1988, is dismissed. Appeal to proceed as to appellant Adair State Bank, whose petition in error was filed August 18, 1988. Appellant Adair State Bank is directed to file an amended petition in error, not later than twenty days from the date of this order, attaching a certified copy of the journal entry as required by 12 O.S.1981, § 32.2; Johnson v. Johnson, 674 P.2d 539 (Okl.1983).
“DOOLIN, C.J., HARGRAVE, V.C.J., LAVENDER, OPALA, WILSON and KAUGER, J.J.— Concur [Emphasis added.]”
. See Rules 3(a) and (c) and 4(a)(1) and (5), Federal Rules of Appellate Procedure, infra; Browder v. Director, Dept. of Corrections of Ill., 434 U.S. 257, 264 , 98 S.Ct. 556, 561 , 54 L.Ed.2d 521 (1978), reh. den. 434 U.S. 1089 , 98 S.Ct. 1286 , 55 L.Ed.2d 795 (the time limit prescribed by Rule 4, Fed.Rules App.Proc., is "mandatory and jurisdictional”); Brainerd v. Beal, 498 F.2d 901, 903 (7th Cir.1974), cert. den. 419 U.S. 1069 , 95 S.Ct. 655 , 42 L.Ed.2d 664 , reh. den. 420 U.S. 913 , 95 S.Ct. 836 , 42 L.Ed.2d 844 , citing United States v. Indrelunas, 411 U.S. 216, 222 , 93 S.Ct. 1562, 1565 , 36 L.Ed.2d 202 (1973) (procedural rules must be applied mechanically to avoid the uncertainties that arise when exceptions are created).
The terms of Rule 3(a) and (c), Fed.Rules App. Proc., provide:
"(a) Filing the Notice of Appeal. An appeal permitted by law as of right from a district court to a court of appeals shall be taken by filing a notice of appeal with the clerk of the district court within the time allowed by Rule 4. Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the court of appeals deems appropriate, which may include dismissal of the appeal.
"(c) Content of the Notice of Appeal. The notice of appeal shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from; and shall name the court to which the appeal is taken. Form 1 in the Appendix of Forms is a suggested form of a notice of appeal. An appeal shall not be dismissed for informality of form or title of the notice of appeal. [Emphasis added.]”
The pertinent terms of Rule 4(a)(1) and (5), Fed.Rules App.Proc., provide:
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"(1) In a civil case in which an appeal is permitted by law as of right from a district court to a court of appeals the notice of appeal required by Rule 3 shall be filed with the clerk of the district court within 30 days after the date of entry of the judgment or order appealed from....
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"(5) The district court, upon a showing of excusable neglect or good cause, may, extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time prescribed by this Rule 4(a). Any such motion which is filed before the expiration of the prescribed time may be ex parte unless the court otherwise requires. Notice of any such motion which is filed after expiration of the prescribed time shall be given to the other parties in accordance with local rules. No such extension shall exceed 30 days past such prescribed time or 10 days from the date of entry of the order granting the motion, whichever occurs later. [Emphasis added.]”
. Torres v. Oakland Scavenger Company, 487 U.S. 312 , 108 S.Ct. 2405, 2407 , 101 L.Ed.2d 285 (1988).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9885724. Public record. Not legal advice.