Oklahoma Bar Journal - Vol. 84, No. 27 - October 12, 2013

No one likes to think about, much less plan for, a worst-case scenario. However, your clients' appellate options should be a critical part of your pretrial and trial strategy. There are certain interlocutory, or non-final,[1] orders which are immediately appealable by right without the necessity of waiting for a final judgment.[2] Pursuant to Oklahoma statute and Supreme Court rule, interlocutory orders appealable by right include an order that:

1. Discharges, vacates or modifies or refuses to discharge, vacate or modify an attachment
2. Denies a temporary or permanent injunction, grants a temporary or permanent injunction except where granted at an ex parte hearing, or discharges, vacates or modifies or refuses to discharge, vacate or modify a temporary or permanent injunction
3. Discharges, vacates or modifies or refuses to discharge, vacate or modify a provisional remedy which affects the substantial rights of a party
4. Appoints a receiver except where the receiver was appointed at an ex parte hearing, refuses to appoint a receiver, or vacates or refuses to vacate the appointment of a receiver
5. Directs the payment of money pendente lite except where granted at an ex parte hearing, refuses to direct the payment of money pendente lite, or vacates or refuses to vacate an order directing the payment of money pendente lite
6. Certifies or refuses to certify an action to be maintained as a class action
7. Denies a motion in a class action asserting lack of jurisdiction because an agency of this state has exclusive or primary jurisdiction of the action or a part of the action, or asserting that a party has failed to exhaust administrative remedies, but only if the class is subsequently certified and only as part of the appeal of the order certifying the class action
8. Grants a new trial or opens or vacates a judgment or order [3]
9. Falls within OKLA. STAT. tit. 58, §721 (regarding certain interlocutory probate orders) [4]
10. Falls within the provisions of OKLA. STAT. tit. 15, §817 (regarding certain interlocutory arbitration orders) [5]

Counsel who has received an interlocutory order appealable by right must navigate a different set of appellate rules and procedures. A careful review of the statutes, rules and case law governing appeals of interlocutory orders appealable by right may prevent fatal errors and guide counsel's strategy decisions.

Applicable Oklahoma Supreme Court rules

Appeals involving interlocutory orders appealable by right are governed by Oklahoma Supreme Court rules 1.60 through 1.67 and, by incorporation and to the extent not inconsistent,[6] certain other Supreme Court rules.

The deadlines for appeals from interlocutory orders appealable by right are shorter than those for appeals from final orders. Although the petition in error is due 30 days from the date the order is filed — the same deadline in appeals from final judgments, the answer to the petition in error is due 10 days from the filing of the petition in error, as opposed to the 20 days for answers in appeals from final judgments.[7] Additionally, for example, the trial court's notice of completion of record is due to be filed with the Supreme Court within 60 days of the date the interlocutory order is filed.[8] In appeals from final judgments, on the other hand, the notice of completion of record is due within six months of the date the final judgment was filed.[9] Also, the appellant's brief-in-chief is due to be filed within 30 days of the date the notice of completion of record is filed with the Supreme Court, and not 60 days as is allowed for the brief-in-chief in appeals from final orders.[10] Finally, the appellee's answer brief is due 20 days from the date the brief-in-chief is filed, and not 40 days as is allowed for the answer brief in appeals from final orders.[11]

Counsel should become familiar with the rules governing interlocutory orders appealable by right. Missing a deadline, even inadvertently, can at a minimum be embarrassing and potentially fatal to an appeal.[12] To avoid missing a deadline, appellate practitioners should be aware of the scheduling differences.

Not mandatory

Appealing an interlocutory order appealable by right may not be part of counsel's strategy. Issues raised in interlocutory orders appealable by right, instead of being appealed immediately, may, in most instances, be appealed after the final judgment is entered.[13] If an interlocutory order appealable by right is not appealed and the aggrieved party subsequently voluntarily dismisses the litigation, that dismissal terminates the right to appeal from the interlocutory order as there is no final appealable judgment.[14]

If an interlocutory appeal doesn't fit counsel's strategy, a litigant can wait until after a final judgment to raise errors made prior to the entry of the final judgment. However, issues addressed in an interlocutory order appealable by right are not subsumed into a subsequent interlocutory order appealable by right. For example, in City of Tulsa v. Raintree Estates I Inc.,[15] the appellant argued that an interlocutory order appealable by right was subsumed in a later interlocutory order appealable by right. The Oklahoma Court of Civil Appeals held, "we find no authority, and the appellant cites none, permitting a party to delay timely review of an appealable interlocutory decision until a time determined more advantageous to its interest," rendering the order "beyond appellate cognizance at this time."[16]

Only narrow issues can be raised

The issues that can be raised in an appeal of an interlocutory order appealable by right are limited to those issues addressed in the interlocutory order.[17] An appeal of an interlocutory order appealable by right cannot be utilized to raise objections to other interlocutory orders or issues outside the scope of the order that is appealable by right.

Unappealed orders cannot be the subject of a writ

If the deadline passes for filing an interlocutory appeal, counsel should not plan on using a writ as a back-up appellate plan. If there is an order from which an interlocutory appeal by right may be taken but is not, a writ on the issue is not likely to be entertained by the Oklahoma Supreme Court. "[W]hen a remedy by direct appeal is readily available, the Supreme Court will not let its §4 cognizance be invoked. A prerogative writ may not be allowed to function as a substitute for the regular process of appellate review."[18] Thus, if counsel elects not to immediately appeal an interlocutory order appealable by right, that interlocutory order cannot be the subject of a writ but must be appealed as part of the appeal from the final judgment.

Motion for new trial does not extend appeal time

Pursuant to Oklahoma Supreme Court Rule 1.40, a motion for new trial, which normally extends the deadline for filing an appeal from a final judgment, does not operate to extend the deadline to appeal from interlocutory orders that are appealable by right.[19] Applying that rule, the Supreme Court dismissed an appeal of an interlocutory order appealable by right as untimely in In re Estate of Caldwell.[20] In that case, the trial court issued an order on Oct. 11, 1983, awarding property to a widow and her minor son.[21] The widow filed a timely motion for new trial, and that motion was overruled on Nov. 15, 1983.[22] She filed a petition in error on Nov. 23, 1983. The Supreme Court of Oklahoma found that the order appealed from was one of a class of interlocutory probate orders that are appealable by right.[23] As such, the 30-day period began on the date the order was entered, and the court rules prevented the extension of that time with the filing of a motion for new trial.[24] The appeal was dismissed for an "incurable jurisdictional defect." However, the court noted that the appellant would be able to obtain review of the issues after the final decree of distribution was rendered.[26]

Characterization of orders

Another issue that may affect case strategy is the possibility that a single order may fall under more than one classification under the statutes or Oklahoma Supreme Court rules. An order may qualify as an interlocutory order appealable by right but may also fall under another category of the Oklahoma Supreme Court rules. For instance, in In re Estate of A.E. Richardson,[27] on appeal from a summary judgment regarding whether there was an intentional omission of the decedent's son in an amendment to a pour-over trust that was executed after the decedent's will, the Oklahoma Court of Civil Appeals noted that the order appealed from was an interlocutory order in a probate case that was appealable by right.[28] Although Okla.Sup.Ct.R. 1.36, which provides the accelerated appeal procedure for summary judgments, does not provide for briefing on appeal unless ordered by the court, the Supreme Court in Richardson used the rules applicable to interlocutory orders appealable by right to order briefing under Rule 1.65.[29]

Further, orders that do not fall under one of the appealable categories in name may be considered an interlocutory order appealable by right because of their substance. In Collier v. Reese,[30] a trial court order that sealed the record, prohibited dissemination of information and precluded future filing without court approval was treated as an interlocutory order appealable by right.[31] In so doing, the Supreme Court noted that although the motion to seal filed in the trial court was not labeled an injunction and the trial court did not follow the procedure for ruling on an injunction, "the nature of the relief sought and the nature of the relief actually given was injunctive."[32] As such, the court held that the order was immediately appealable and applied the standard of review for the issuance of a temporary injunction.[33] The Supreme Court has even declared an order that was never journalized by the trial court an interlocutory order appealable by right because it required the plaintiff to post additional security, and the court considered it an order directing the payment of money pendente lite.[34]

Conclusion

Appellate options should be a part of every counsel's strategy. While not exactly a riveting subject matter, interlocutory orders appealable by right should not be ignored in formulating your pretrial and trial strategy. Knowing whether an interlocutory order is appealable by right, and knowing the nuances of the statutes, rules and case law governing interlocutory appeals, will enable you to determine when and how to seek appellate review consistent with your overall litigation strategy.

1. DLB Energy Corp. v. Oklahoma Corp. Comm'n, 1991 OK 5, ¶1 n.2, 805 P.2d 657, 600 (defining an interlocutory order "as an order which is not 'final.'"). The term "final order" is defined as "[a]n order affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment, and an order affecting a substantial right, made in a special proceeding or upon a summary application in an action after judgment, is a final order, which may be vacated, modified or reversed, as provided in this article." OKLA. STAT, tit.12, §953.
2. DLB Energy Corp., 1991 OK 5, at ¶7, 805 P.2d at 660-61 ("An interlocutory order may not be appealed unless: 1) it falls within a class of interlocutory orders appealable by right; or 2) it is certified by the trial court for immediate prejudgment review because it affects a substantial part of the merits of a controversy."). A trial court can certify an interlocutory order for immediate appeal pursuant to OKLA. STAT. tit. 12, §952(b). Appeals of certified interlocutory orders are beyond the scope of this article.
3. OKLA. STAT. tit. 12, §993(A)(1) THROUGH (8).
4. Okla.Sup.Ct.R. 1.60(h).
5. Okla.Sup.Ct.R, 1.60(h) and (i). Section 817, which allowed imme-diate appeals of certain arbitration awards, was part of the Uniform Arbitration Act which was repealed in 2005. See SB 873, c. 364, §32 (effective Jan. 1, 2006). Appeals of certain arbitration awards is now governed by OKLA. STAT. tit. 12, §1879. Oklahoma Supreme Court Rule 1.60(i) has not been modified to reflect those legislative changes.
6. Okla.Sup.Ct.R. 1.67 incorporates the rules in Parts I and II of the Oklahoma Supreme Court rules "when they are consistent with Rules 1.60 through 1.67 inclusive."
7. Compare Okla.Sup.Ct.R. 1.63 with Okla.Sup.Ct.R. 1.25(c).
8. Okla.Sup.Ct.R. 1.64 (requiring filing of notice of completion of record within 60 days of the filing of the interlocutory order).
9. Okla.Sup.Ct.R. 1.34(a) (record on appeal shall be ready for trans-mission no later than six months from date of judgment or order appealed).
10. Compare Okla.Sup.Ct.R. 1.65 with Okla.Sup.Ct.R. 1.10(a) (requiring brief-in-chief to be filed within 60 days of the date the notice of completion of record is filed with the Supreme Court).
11. Compare Okla.Sup.Ct.R. 1.65 with Okla.Sup.Ct.R. 1.10(a) (requiring appellee's answer brief to be filed within 40 days of the date the notice of completion of record is filed with the Supreme Court).
12. See, e.g.. Clay v. Choctaw Nation Care Ctr., LLC, 2009 OK CIV APP 35, ¶l, 210 P.3d 855,856 (where appellant filed its notice of completion of record and brief approximately five months late because it had mistakenly designated the appeal as one from a final order instead of an interlocutory order appealable by right, the court found "no excuse" for the conduct, but "reluctantly" denied the motion to dismiss the appeal in the interest of obtaining a decision on the merits).
13. State v. One Thousand Two Hundred Sixty-Seven Dollars, 2006 OK 15, ¶17,131 P.3d 116,123; sec also OKLA. STAT. tit. 12, §952(b); Okla.Sup. Ct.R. 1.40(f).
14. See, e.g., Contrez v. O'Donnell, 2002 OK 67, ¶11, 58 P.3d 759,762.
15. 2007 OK CIV APP 41, ¶5, 162 P.3d 929, 932.
16. Id. at ¶6,162 P.3d at 932 (footnote omitted).
17. See, e.g., LaRue v. Noble Independent School Dist. No. 40,1997 OK CIV APP 57, ¶¶5-7, 946 P.2d 277, 278-790 (rejecting appellant's request to address trial court's findings relating to damages claim which were outside the scope of the interlocutory order appealable by right).
18. Marshall Oil Corp. v. Adams, 1983 OK 102, ¶5, 688 P.2d 37,41-42 (Opala, J. dissenting) ("The May 6 interlocutory injunction is appealable by right. Marshall may not be heard here to complain of it by the use of extraordinary process." (citation omitted)).
19. Okla.Sup.Ct.R. 1.40(e).
20. 1984 OK 92, 692 P.2d 1380.
21. Id. at ¶4, 692 P.2d at 1381.
22. Id.
23. Id. at ¶5, 692 P.2d at 1381.
24. Id.
25. Id. at ¶6, 692 P.2d at 1382; see also Chandler (U.S.A.), Inc. v. Tyree, 2004 OK 16, ¶9 n.4, 87 P.3d 598, 601 (time to commence an appeal from interlocutory order appealable by right is not extended by motion for new trial); Williams v. Mulvihill, 1993 OK 5, ¶1, n.l, 846 P.2d 1097,1099 n.l (refusing to entertain appellant's request to treat appeal as one from interlocutory order appealable by right because it would have been untimely as being more than 30 days after the order's "rendition").
26. Caldwell, 1984 OK 92, at ¶6, n.8, 692 P.2d at 1382.
27. 2002 OK CIV APP 69, 50 P.3d 584.
28. Id. at ¶1 n.l, 50 P.3d at 585.
29. Richardson, 2002 OK CIV APP 69, at ¶1 n.l, 50 P.3d at 585.
30. 2009 OK 86, 223 P.3d 966.
31. Id. at ¶¶9-11, 223 P.3d at 970-72.
32. Id. at ¶11, 223 P.3d at 971-72 (footnotes omitted).
33. Id. at ¶11, 223 P.3d at 972.
34. Ranken Energy Corp. v. DKMT Co., 2008 OK CIV APP 61, ¶1 n.l, 190 P.3d 1174,1175 n.l.