§ Rule 1.28 Record
Rule 1.28 Record
(a) All Parties to an Appeal Must Designate a Record. All parties to an appeal shall file either a designation of record or counter designation of record using Rule 1.301, Form 11.
(b) Designation of Record. Concurrently with or prior to filing a copy of the petition in error in the trial court, the party desiring to appeal shall mail to the other parties or their counsel and file in the trial court from which the appeal is to be taken, a designation of any pertinent instruments filed in the case and of proceedings and evidence adduced which are sought to be included in the record on appeal. An original and one copy of the designation of record shall be filed in the trial court. If there is designated for inclusion in the record any evidence or proceeding at a trial or hearing which was stenographically reported, an additional copy of the designation shall be given to the court reporter, and the cost of preparing the transcript shall be advanced forthwith by the designating party.
The designation of record shall be made using the form prescribed by Rule 1.301, Form No. 11. Pleadings and other papers filed with the district court clerk in the case shall be designated by either: 1. Circling the document on a copy of the court clerk's appearance docket. If this method is used the appearance docket shall be attached to the designation of record. or 2. Listing the specific pleadings or other papers on the face of the designation of record form. No designation of record which generally includes the entire trial court record shall be filed without order of the Chief Justice.
The record on appeal shall not include the following unless upon order of the trial court or appellate court, or unless the document is specifically drawn in issue by the appeal: subpoenas, summonses, certificates of service, returns and acceptances of service, and procedural motions or orders (e.g., continuances, extensions of time, etc.). Depositions filed but not offered or admitted into evidence must be excluded from the record on appeal. Materials which were not before the trial court at the time of the decision appealed are not properly part of the record on appeal without order of the trial court or the appellate court.
Appellant's designation of record form must contain the certification by the court reporter when a transcript is ordered. See 12 O.S.Supp.2000 § 990A(G).
A copy of appellant's designation of record shall be filed in the Supreme Court at the time the petition in error is filed or at the time the designation of record is filed in the District Court, whichever occurs later. Nothing herein precludes the appellate court from ordering any additional parts of the entire trial court record to be transmitted to the appellate court at any stage of the appeal.
(1) Designation of Record When the Record on Appeal Must Be Completed Earlier Than Six Months From the Date of Judgment. When statute or court rule requires completion of the record earlier than six months from the date of judgment the appellant shall file the designation of record within such time as required by statute or rule specific for the appeal. When statute or rule does not specify the time to file the designation of record for such an appeal the designation shall be filed within such time so as to allow the filing of a counter designation and timely preparation of the record. Any party may seek appropriate relief in the trial court to require timely filing of designations of record and timely completion of the record.
(2) County Budget Appeals. In appeals from a final order of the district court approving or disapproving the setting of a county budget appellant's designation of record shall be filed in the trial court within five days after the date of the judgment. Appellee's counter designation shall be filed within five days after the designation of record is filed.
(3) Juvenile Appeals. In an appeal from a District Court to the Oklahoma Supreme Court and involving a judgment or order issued pursuant to Title 10 of the Oklahoma Statutes in paternity proceedings, or Oklahoma Children's Code proceedings, or Oklahoma Juvenile Code proceedings, or Oklahoma Adoption Code proceedings, (sometimes referred to as a “juvenile appeal”), appellant's designation of record shall be filed in the trial court within ten days of the date of the order appealed. Appellee's counter designation shall be filed within ten days after the designation of record is filed. See 10 O.S.1991 § 80 (paternity); 10 O.S.Supp.2000 § 7003-6.4 (Oklahoma Children's Code); 10 O.S.Supp.2000 § 7303-6.2 (Oklahoma Juvenile Code) and 10 O.S.Supp.2000 §§ 7505-2.1, 7505-4.1, & 7505-7.1 (Oklahoma Adoption Code).
(c) Counter Designation of Record. All appellees (including counter-appellees and cross-appellees) shall file a counter designation of record in the trial court. The counter designation of record shall be made using the form prescribed by Rule 1.301, Form No. 11. If an appellee does not order transcripts or record in addition to that designated by the appellant the appellee's designation of record shall so state on the counter designation of record form. An original and one copy of the counter designation of record shall be filed in the trial court. If additional portions of the proceedings and evidence are designated, an additional copy of the designation shall be given to the court reporter.
The appellee's (counter-appellee's, cross-appellee's) counter designation of record shall be filed in the trial court within 20 days after appellant's (counter-appellant's or cross-appellant's) designation of record is filed in the trial court. The times to file a counter designation of record in specific appeals are provided by Rule 1.28(b)(1), (2), and (3). A copy of the appellee's (counter-appellee's, cross-appellee's) counter designation of record shall be filed in the Supreme Court at the time the response to the petition in error is filed or at the time the counter designation of record is filed in the District Court, whichever occurs later.
(d) Cost of Transcribing Trial or Proceedings. Each appellant (counter or cross-appellant) must timely advance the costs, including cost deposit for transcripts ordered by any party relating to the appeal of that appellant. The trial court may, after notice and prompt hearing for good cause shown, direct parties to pay costs for transcript preparation in another equitable manner, pending final allocation of costs at the termination of the appeal. Proceedings in the trial court regarding allocation of costs shall not delay the appellate proceedings.
(e) Failure to Advance Costs Promptly. If the party required to advance costs shall fail to do so within a reasonable time, the trial court shall so certify to this court. Failure to pay costs required by this Rule shall not be good cause for an extension of time to complete the record and shall be ground for dismissal of the appeal (counter-appeal or cross-appeal) or any other sanction the appellate court deems appropriate.
(f) Error in Assessing Costs Reviewable. Trial court's errors in assessing costs for transcribing designated portions of the record may be reviewed by the appellate court if challenged by any party. Trial court decisions in assessing costs for transcribing designated portions of the record may be challenged by an amended petition in error and subsequent brief in the appeal.
(g) Designation of Record by Stipulation of Parties. Instead of serving designations, the parties may designate the record on appeal by written stipulation filed in the trial court within 10 days after the petition in error is filed. This time limit may be extended by the trial court. Where portions of the evidence must be transcribed and exhibits incorporated, a copy of the stipulation must be given to the court reporter and the cost of transcribing advanced.
The parties may not stipulate to designate the entire trial court record. The parties may not stipulate to designate items prohibited by Rule 1.28(b), unless the trial court or appellate court has authorized by order their inclusion in the record on appeal.
(h) Power of Court to Order Additional Record. Nothing provided in this rule shall prevent the trial court or an appellate court from ordering that any undesignated portions of the record be transcribed and from assessing the cost thereof.
(i) Transcript Designated and Furnishing Copy of Designation to Court Reporter. Transcripts shall be ordered using the Designation of Record Form and a completed copy thereof shall be delivered to the court reporter and to every party when the designation of record is filed in the trial court. The transcripts and the particular trial or hearing exhibits necessary to a
review of the issues briefed shall be clearly and separately designated on the form. “Transcripts” includes transcripts of videotape, audiotape or other magnetic media.
(j) Penalties for Designating Excessive Portions of Transcript. When this court determines on motion to tax costs made after the determination of the appeal but before mandate is issued that any party has designated for inclusion in the record on appeal unnecessary portions of the proceedings or evidence either at that party's expense or at the expense of another party, the costs of transcription attributable to the unnecessary portion shall be taxed against the designating party (or be ordered to be borne by such party).
(k) Fees for Assembling Record and Cost of Transcribing Trial or Proceedings in a Juvenile Appeal. In an appeal from a District Court to the Oklahoma Supreme Court and involving a judgment or order issued pursuant to Title 10 of the Oklahoma Statutes in paternity proceedings, or Oklahoma Children's Code proceedings, or Oklahoma Juvenile Code proceedings, or Oklahoma Adoption Code proceedings, (sometimes referred to as a “juvenile appeal”), the fee for preparing, assembling, indexing, and transmitting the record for appellate review shall be paid in the manner provided by 28 O.S.Supp.1997 § 162(D). After a petition in error is filed the District Court retains jurisdiction to facilitate the completion of the record and allocate the costs of its preparation. Okla.Sup.Ct.R. 1.37(a); 28 O.S.Supp. 1997 § 162(D). When parental rights are terminated the District Court retains jurisdiction to determine if a parent is indigent for the purpose of payment of the fee required by § 162(D) and payment for transcripts designated to be included in the record on appeal. M.L.B. v. S.L.J., 519 U.S. 102, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996); Okla.Sup.Ct.R. 1.37(a); Okla.Sup.Ct.R. 1.28(d). Alleged error in a District Court's order adjudicating indigent status or in allocating the costs of transcripts may be challenged in the original appeal by filing in the Supreme Court an amended petition in error within thirty (30) days of the date of the District Court's order, or by filing in the original appeal in the Supreme Court a motion within thirty (30) days of the date the District Court's order is filed in that court. Okla.Sup.Ct.R. 1.28(f) & 1.37(b).
Adopted July 10, 1996
Effective January 1, 1997