Tidemark Exploration, Inc. v. Good

ORDER

¶ 1 The resolution of appellees’ motion to dismiss this appeal calls for a construction of the 1997 amendments to 12 O.S. § 990A. 12 O.SSupp.1997 § 990A states in pertinent part as follows:

A. An appeal to the Supreme Court of Oklahoma, if taken, must be commenced by filing a petition in error with the Clerk of the Supreme Court of Oklahoma within thirty (30) days from the date a judgment, decree, or appealable order prepared in conformance with Section 696.3 of this title is filed with the clerk of the trial court. If appellant did not prepare the judgment, decree, or appealable order, and Section 696.2 of this title required a copy of the judgment, decree, or appealable order to be mailed to the appellant, and the court records do not reflect the mailing of a copy of the judgment, decree, or appealable order to the appellant within three (3) days, exclusive of weekends and holidays, after the filing of the judgment, decree, or ap-pealable order, the petition in error may be filed within thirty (30) days after the earliest date on which the court records show that a copy of the judgment, decree, or appealable order was mailed to the appellant.

¶ 2 The order on appeal was pronounced by the judge at a hearing where the lawyers for the parties were present on October 3, 1997. It was drafted by the attorney for the appellees and sent to the attorney for the appellants. The two attorneys discussed the content of the order and made revisions. The appellants’ attorney then received and signed the order. The appellees’ attorney submitted the order to the judge, who signed it. The order was filed on October 31, 1997. The appellees’ attorney mailed a file-stamped copy of the order to the appellants’ attorney on Monday November 3. Another file-stamped copy of the order was faxed by the appellees’ attorney to the counsel for the appellants on November 7, 1997. These copies were timely received by the attorney for the appellants. Not until March 23,1998 did the appellees’ attorney file in the case a certificate showing that the order was mailed.

¶ 3 The petition in error for review of the October 31 1997 order was not filed until March 17, 1998. Attached to the petition was a certificate of service, prepared by the attorney for the appellants and signed by the court clerk, showing that a copy of the October 31 order had been mailed by the court clerk to the attorneys for the parties on March 10, 1998. This certificate of service was filed of record on March 10,1998.

¶4 Appellees moved to dismiss this appeal, contending that it was untimely brought more than 30 days after the filing of the order, as is required by 12 O.S.Supp.1997 § 990A. Appellants responded to the motion, urging that the appeal was timely brought because it was lodged within 30 days of the date of the March 10, 1998 certificate of service, the first and only certificate of service filed in the district court.

¶ 5 On motion by the appellees, this appeal is dismissed as untimely because it was brought more than 30 days after the filing of the October 31,1997 order, and more than 30 days after the date that a copy of that order was first mailed to the attorneys for the appellants. 12 O.S.Supp.1997 § 990A. The reason for the statute’s requirement that a certificate of mailing be filed is to establish when the order was mailed in the event there is a dispute about the date that the appealing party received actual notice of the filing of the order, the appealable event. This recorded certificate of mailing performs a function similar to a recorded mortgage or other document of title. It is well settled that persons with actual knowledge of an unrecorded document are legally bound by and charged with knowledge of that document. Kaylor v. Kaylor, 172 Okl. 535, 45 P.2d 743 (1935). The date of the filing of the certificate of mailing is not the appealable event. There is no dispute in this case that appellants received actual notice of the appealable event more than thirty days before this appeal was commenced.

¶ 6 Today’s result is consistent with extant jurisprudence. We have long held that actual notice of an appealable event triggers the running of the appeal time. McCullough v. Safeway Stores, 1981 OK 38, 626 P.2d 1332, Grant Square Bank and Trust Co. v. Werner, 1989 OK 126, 782 P.2d 109, Bushert v. Hughes, 1996 OK 21, 912 P.2d 334, Joiner v. Brown, 1996 OK 112, 925 P.2d 888. The 1997 amendments to 12 O.S. § 990A do not change this fundamental rale.

¶ 7 Moreover, because the attorney for the appellant participated in the preparation of the order, the mailing provisions of § 990A do not apply to this case, and the time to appeal began to ran on October 31, 1997.

¶ 8 APPEAL DISMISSED.

LAVENDER, SIMMS, HARGRAVE, OP ALA, and WATT, JJ., concur. ALMA WILSON, J., concurs in judgment. SUMMERS, V.C.J., and HODGES, J., dissent.