Monday, April 16, 2012

Thirty-day appeal time runs from date of actual notice where court file contains no proof of compliance with the three-day mailing rule

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  In an unpublished decision dated November 18, 2011, the Oklahoma Court of Civil Appeals held that it possessed appellate jurisdiction where the trial court order “included a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  Staudt v. City of Okmulgee, unpublished, dated November 18, 2011.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.