On April 16, 2012, the Oklahoma Supreme Court reinstated an
appeal where the record showed that the appeal was initiated within 30 days of
actual notice of the appealed-from order. Whitehall
Homeowners Association, Inc. v. Appletree Enter., Inc., 2012 OK 34.
The appellee moved to dismiss on the basis that the appeal was filed more than
30 days after the order was mailed to the appellant. But the date of
mailing was not supported by proper documents in the record (no certificate of
mailing in the trial court record; no affidavit supporting factual statement in
motion filed in appeal).
This decision raises an interesting potential conflict in
the case law, or at least a potential divergence of views – or maybe just an
anomaly. In an unpublished decision dated November 18, 2011, the Oklahoma
Court of Civil Appeals held that it possessed appellate jurisdiction where the
trial court order “included a ‘cc:’ notation followed by the attorneys’ names,
but did not include the certificate of mailing required by 12 O.S. 696.2(B) and
12 O.S. 696.3(D) (2007) showing a file-stamped copy was served upon the
parties.” Staudt
v. City of Okmulgee, unpublished, dated November 18, 2011.
In Whitehall, the appellee could have submitted an affidavit
with its motion to dismiss, or even filed a belated certificate of mailing and
sought to include the certificate of mailing in the appellate record. But
without sufficient certification, the appellee’s unsupported allegation
regarding mailing was disregarded. With the appellant’s unrefuted
allegation regarding actual notice, the Supreme Court determined that the
petition in error was filed within 30 days of actual notice.
In Staudt, the delay was longer – order filed on March 30,
2011; post-trial motion filed on May 18, 2011. There, the appellee could
have asked the trial court to provide a belated certificate of mailing, or
engaged in discovery in order to ascertain the date of actual notice. The
“actual notice” doctrine does not appear in the Staudt opinion, so presumably
it was not raised as a basis to dismiss the appeal.
These decisions, taken together, underscore the need to
prepare and file affidavits of mailing when dealing with appealable (or
potentially appealable) state trial-court orders.
