Lucas v. Bishop ( 1995 )

MEMORANDUM OPINION

SUMMERS, Justice.

Lucas and the Bishops were parties to a written contract for deed. Lucas, the seller, brought an action in the District Court against the Bishops.¹ He alleged that he was entitled to accelerate the unmatured future installment payments, recover them plus interest and attorney’s fees, and foreclose against the property. The Bishops moved for summary judgment. Their motion was sustained, and the. trial court also granted attorney’s fees and costs to the defendants.

The only issue at this stage of the appeal is whether the plaintiff’s appeal was timely commenced. We conclude that it was timely, and deny the defendants’ motion to dismiss.

On May 4, 1993, the trial judge signed and filed a “court minute” sustaining defendants’ motion for summary judgment. Next, on May 6 the judge signed and filed a court minute clarifying the ruling of May 4, and listed claims in controversy that no judgment has been granted on.² Then on July 2 the trial judge signed and filed a third court minute awarding costs and attorney fees to the defendants.

Plaintiff filed a Motion for New Trial on July 30, 1993 and sought a new adjudication on attorney fees. On August 12, 1993 the trial judge signed and filed a Journal Entry memorializing the earlier grant of summary judgment. On the next day, August 13th, the judgment of August 12 was withdrawn by the trial judge. Then on August 18, 1993 a second Journal Entry was filed, reinstating the August 12th Journal Entry. The petition in error was mailed to this Court on September 9, 1993 in compliance with the Rule 1.15 of the Rules of Civil Appellate Procedure, and is deemed filed that date. Rules of Civil Appellate Procedure, 12 O.S.1991 Ch. 15, App. 2, Rule 1.15.

The Court recently explained that prior to October 1, 1993 a judge-signed minute completely adjudicating a controversy was an appealable order. Manning v. State ex rel. Dept. of Public Safety, 876 P.2d 667 (Okla.1994). See also Mansell v. City of Lawton, 877 P.2d 1120 (Okla.1994) and our discussion of judge-signed minutes filed after October 1, 1993.³ However, we need not address which, if any, of the minute orders here was a final appealable order. In Manning, supra, we determined that its holding would operate prospectively from the date of the opinion. The date of Manning is June 7, 1994, and several months after our District Court’s minute orders here. The subsequent Journal Entries were filed on August 12 and August 18, 1993.

The August 18th Journal Entry determined that the order sustaining summary judgment on May 4, 1993 was not a partial summary judgment but “an award of full and complete summary judgment in favor of Defendants,....” The trial court noted that the plaintiff had requested clarification of the previous orders. Then the court stated that the prior order awarding summary judgment and the order regarding attorney’s fees “are made effective as of this date and that Plaintiffs appeal time shall commence as of this date as to all issues pertaining thereto.” The court then “reinstated” the journal entry of August 12th.

A trial judge’s discretion under 12 O.S.1991 § 1031.1 to vacate a judgment is unfettered by statutory grounds and is coextensive with that at common law. Schepp v. Hess, 770 P.2d 34, 38 (Okla.1989). However, a trial judge may not vacate a judgment and reinstate that same judgment to extend the statutory time to commence an appeal. Salyer v. National Trailer Convoy, Inc., 727 P.2d 1361, 1362 n. 2 (Okla.1986). We thus conclude that the journal entry filed August 12, 1993 was the judgment filed in the District Court that commenced the time to appeal. The petition in error filed on September 9, 1993 was within the statutory 30-day period for commencing appeals. 12 O.S.1991 § 990A. The motion to dismiss is denied and the appeal shall proceed.

ALMA WILSON, C.J., KAUGER, Y.C.J., and HODGES, LAVENDER, HARGRAVE and WATT, JJ., concur. SIMMS and OP ALA, JJ., dissent in part.

1 . The additional defendant, Dorothy Lifsey, disclaimed any interest in the property at the time of service of process.

2 . The trial court stated that it was not adjudicating claims on alleged delinquent or unpaid amounts, the dispute on the payment of taxes, and any amounts becoming due since the commencement of the suit. Due to our disposition of the matter we need not determine whether the trial court's order was a partial summary judgment on fewer than all of the claims.

3 . October 1, 1993 was the effective date of 12 O.S.Supp.1993 § 696.2, which provides that minute entries shall not he appealable orders.