§ Rule 1.26 Amended petition in error, premature petition in error, and supplemental petition in error

Rule 1.26. Amended petition in error, premature petition in error, and supplemental petition in error

(a) Time, Extent, and Form of Amended Petition in Error. The petition in error may be amended at any time before brief-in-chief is filed, or thereafter by leave of Court, to include any error or any issue presented to and resolved by the trial court which is supported by the record. If a party has filed a motion for new trial, errors either not alleged in that motion or not
fairly comprised within the grounds alleged therein may not be asserted on appeal by such party. 12 O.S.1991 § 991(b). An amendment to a petition in error may not add non-nominal parties appellee or appellant after expiration of the time for commencing an appeal. The form of the petition in error set forth at Rule 1.301, Form No. 5, shall be used to amend a petition in error.

A party properly filing an amended petition in error may file the amended petition without payment of costs.

(b) Amendment Upon Filing of Brief-in-Chief. The petition in error will be deemed amended to include errors set forth in the propositions in the brief-in-chief, provided that in no event may the appeal be broader in scope than allowed by Rule 1.26(a). Jackson v. Oklahoma Memorial Hospital, 909 P.2d 765, 768 (Okla.1995). Error may not be raised for the first time in any reply brief.

(1) If a petition in error is filed before the time prescribed in 12 O.S.Supp.1995 § 990A(A), it is premature and shall be dismissed as premature. If the appeal is dismissed as premature the appellant may file a new petition in error within thirty (30) days after a notice of dismissal is mailed to the parties which states that the appeal was dismissed on the ground it was premature. A new petition in error filed within thirty (30) days filed after notice of a dismissal for prematurity must be accompanied by payment of costs. See Rule 1.23. The new petition in error must comply with Rule 1.301, Form No. 5.

(2) When an appeal is dismissed as premature the new petition in error filed in accordance with Rule 1.26(c)(1) is timely to challenge appealable events that occurred in the trial court between the date the premature petition in error was filed in the Supreme Court and the date the premature appeal was dismissed. The date of dismissal is the date of the Clerk's file-stamp affixed on the dismissal order.

(3) In the event a premature petition in error is filed, and the premature appeal has not been dismissed by the Court, the appellant may file a supplemental petition in error at any time prior to the Court's dismissal of the appeal. The date of dismissal of an appeal is the date of the Clerk's file-stamp affixed on a dismissal order. The supplemental petition in error may be filed without payment of costs. The supplemental petition in error must comply with Rule 1.301, Form No. 5. The supplemental petition in error shall state when the time to appeal commenced and all other matters which should be included in a timely petition in error, including those occurring after the filing of the original petition in error. 12 O.S.Supp.1995 § 990A(F).

(4) A supplemental petition in error filed in accordance with Rule 1.26(c)(3) is timely to challenge appealable events that occurred in the trial court on or after the date the premature petition in error was filed in the Supreme Court. A supplemental petition in error cannot be filed after the Court has dismissed the appeal as premature.

(5) The filing of an amended or supplemental petition in error shall not extend the time to file record, transcripts, or briefs, without leave of the Court on motion of a party.

(d) Post-trial Order for Attorney's Fees, Interest, or Costs. An amended petition in error to challenge a post-trial order granting or denying costs, interest, or attorney's fees must be filed with this Court within thirty (30) days of the date of the post-trial order challenged. The amended petition in error may be filed without payment of costs, subject to leave of court
which will be granted or withdrawn subsequent to filing. An appellate court may order such an appeal to be redocketed and given a different number upon payment of an accompanying cost deposit.

When a petition in error challenging a post-trial order granting or denying costs, interest, or attorney's fees is premature, a supplemental petition in error challenging that order may be filed within (30) days from the date of the post-trial order or at any time prior to the date of the Supreme Court's order dismissing the premature petition, whichever is later. See Rule 1.26(c).

An amended petition in error challenging a post-judgment order granting or denying costs, interest, or attorney's fees may be filed in an appeal governed by Rule 1.36 as specified by that Rule.

(e) Copies. An original and fourteen copies shall be filed of amended or supplemental petitions in error.

Adopted July 10, 1996

Effective January 1, 1997