§ Rule 1.36 Accelerated procedure for summary judgments and certain dismissals

Rule 1.36. Accelerated procedure for summary judgments and certain dismissals

(a) Cases Applied. The Rule 1.36 accelerated procedure will govern appeals from:

1. summary judgments in cases in which the motions were filed under District Court Rule 13 after October 1, 1993; and

2. final orders in cases in which motions to dismiss for failure to state a claim or lack of jurisdiction (of a person or subject matter) under District Court Rule 4 were filed after October 1, 1993.

In multi-party or multi-claim cases the summary judgment or dismissal order must either (1) dispose of all claims and all parties or (2) entirely dispose of at least one claim or one party and contain the express determination that there is no just reason for delay with the express direction by the trial judge that judgment be filed. See 12 O.S.Supp.1995 § 994.

(b) Commencement of Appeal. Appeals in these cases will be commenced by filing a petition in error with the certified copy of dismissal order or of summary judgment and, where applicable, a certified copy of the order denying new trial, with payment of costs or an affidavit in forma pauperis. The petition in error must comply with all Rules to the extent they are
consistent with Rule 1.36. The record shall be filed at the same time as the petition in error. Rule 1.36(d).

(A) In appeals from summary judgment:

(1) the memorialized order by which summary judgment was entered;

(2) pleadings proper as defined by 12 O.S.1991 § 2007(A), (petition, answer, etc.);

(3) applicable instruments on file, including the motion and response with supporting briefs and attached materials filed by the parties as required by District Court Rules 13(a) and 13(b);

(4) any other item on file which, according to some recitation in the trial court's journal entry or in some other order, was considered in the decisional process;

(5) any other order dismissing some but not all parties or claims;

(6) any transcripts of proceedings on the motion(s);

(7) any motions, along with supporting and responsive briefs, for new trial (re-examination) of the summary judgment process;

(8) the appearance docket; and

(9) a cover page and Index of the record prepared by the party.

(B) In appeals from final orders on motions to dismiss:

(1) the memorialized order of dismissal;

(2) pleadings proper as defined by 12 O.S.1991 § 2007(A), (petition, answer, etc.);

(3) the instruments upon which the dismissal is rested;

(4) the motion(s) to dismiss and any supporting brief(s);

(5) any responsive brief by the party asserting the claim;

(6) any other item on file which, according to some recitation in the trial court's dismissal order or in some other order, was considered in its decision;

(7) any other order dismissing some but not all parties or claims;

(8) any transcripts of proceedings on the motion;

(9) any motions, along with supporting and responsive briefs, for a new trial (re-examination) of the dismissal order;

(10) the appearance docket;

(11) a cover page and Index of the record prepared by the party.

(d) Record, Filing, Index, Copies, Transcripts, Costs, Supplement to Record, and Additional Copies on Certiorari. The record shall be filed by appellant as a separate document, not attached to the petition in error. The record shall be titled “Record on Accelerated Appeal,” and shall be preceded by a separate page containing signature of counsel (or pro se parties) and a certificate of service, followed by an “Index to Contents of Record.” The index shall use numeric references which shall correspond to tabs for each of the documents or transcripts included in the record. The record shall consist of copies of instruments authorized by Rule 1.36(c), selected for inclusion by the appellant. To the front of the original and each of the copies of the record there shall be appended the court clerk's certificate identifying each of the included instruments as a true and correct copy of the original on file in the court clerk's office.

An original and four (4) copies of the record and certificate of the clerk shall be filed. One copy shall be served on every other party to the appeal unless waived, and any such waiver must be reflected on the certificate of service.

An appellant who is an inmate, as defined by the provisions of 57 O.S. § 566 (B)(2), lawyerless and unable to produce the record required by this subsection, may attach to the petition in error an affidavit that discloses his (or her) prisoner status and sets out a designation of record to be assembled for the appeal. When such affidavit is filed, the Supreme Court's clerk shall order from the trial court's clerk the original record which is to be compiled in accordance with the inmate's designation in the text of his (or her) affidavit. If the appealing inmate's pauper's affidavit is on file in this court, the record shall be prepared and transmitted to this court--without payment of costs--within thirty (30) days of the date the inmate's affidavit (with designation of record) is transmitted to the trial court by this court's clerk.

It shall be the appellant's duty to order transcripts from the court reporter and to pay costs to ensure timely completion of transcripts. If the transcripts are not filed with the petition in error because of delay in transcription, no more than one 30-day extension of time to complete transcripts will be granted by the court for good cause shown.

If the appellee desires to include documents or transcripts not included by the appellant in the record on appeal, the appellee shall order any such transcript and file a separate document titled “Supplement to Record on Accelerated Appeal,” attaching any instruments or transcripts in the same form and manner as required for an appellant under Rule 1.36 herein. Any such supplement to the record shall be filed concurrently with the Response to the petition in error. The cost of transcribing appellee-ordered portion of the record will be borne by the appellant unless: (1) The trial judge finds that the portion supports a counter or cross-appeal, or (2) The trial judge directs otherwise for good cause shown. In the latter event the appellee shall pay the transcription fee.

In the event that any party files a petition for writ of certiorari to review a Court of Civil Appeals decision under this accelerated procedure, the Supreme Court may issue an order requiring the party who filed such petition for writ of certiorari to submit to the Supreme Court Clerk additional copies of the Record on Accelerated Appeal and any Supplement to Record on Accelerated Appeal.

(e) Response. Response(s) to the petition in error shall be filed within 20 days of the petition in error. If the appellee desires to include documents or transcripts not included by the appellant the appellee shall comply with Rule 1.36(d).

(f) Assignment of Appeal. After a response has been filed or the time for filing has expired, the appeal may be assigned to a division of the Court of Civil Appeals, unless initial screening is incomplete or there are unresolved jurisdictional, procedural or postural defects. Assignment to the Court of Civil Appeals shall be in the manner directed by the Chief Justice, with notice given to the parties.

(g) Appellate Review and Briefs. The appellate court shall confine its review to the record actually presented to the trial court. Unless otherwise ordered by the appellate court, no briefs will be allowed on review. If briefs are ordered, the appellate court will prescribe a briefing schedule. Motions for leave to submit appellate briefs shall be deemed denied unless affirmatively granted by the court. No briefs shall be tendered by attachment to a motion for leave to brief, and the clerk shall not accept or file an appellate brief without prior leave of the court. A motion for appeal related attorney's fees must be made by motion prior to mandate. See Rule 1.14.

(h) Oral Argument. Appeals may be decided pursuant to this rule with or without argument. If argument is granted and the appellate court should orally announce its decision from the bench, it shall also, as in other cases, hand down a memorandum opinion or order.

(i) Certiorari. Certiorari to review any decision of the Court of Civil Appeals made pursuant to this rule may be sought in the same manner as in any other appeal. The time for filing a petition for certiorari is governed by Rules 1.178, 1.179.

(j) Motion to Retain. Nothing in this rule shall prevent a party from requesting the Supreme Court to retain the case prior to its assignment to the Court of Civil Appeals. The assigned division of the Court of Civil Appeals may, on its own motion or on motion of a party, order any appeal removed from consideration by this accelerated procedure and reassigned for
disposition by regular appellate process. In any such case the appellant shall be directed to designate the record on appeal, and the Notice of Completion of Record shall be due 60 days from the date of the order of this Court removing the appeal from the accelerated procedure.

(k) Appeals From Same Trial Court Case. An appeal governed by Rule 1.36 is prosecuted separately from another appeal from the same trial court case when the appeals challenge different appealable decisions. An appeal subject to Rule 1.36 must be filed separately and accompanied by payment of costs in all cases except when it is a cross, counter, or co-appeal to an appeal governed by this Rule, or when filed as an amended petition in error as authorized by Rule 1.36(l). The petition in error for a cross, counter, or co-appeal shall have the accompanying record as required for a petition in error by this Rule.

The party filing a subsequent appeal shall clearly notify the court that prior or related appeals have been brought pursuant to Rule 1.36. An appeal governed by this rule may be considered for consolidation or as a companion appeal pursuant to Rule 1.27 when appropriate.

(l) Amended Petition in Error on Post-Judgment Order Granting or Denying Attorney's Fees, Interest, or Costs. 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 when the order granting or denying costs, interest, or attorney's fees relates to the
order previously appealed pursuant to Rule 1.36. The amended petition in error may be filed without payment of costs. The amended petition in error must be filed with this Court within thirty (30) days of the date of the order granting or denying the interest, costs, or attorney's fees. The record for the amended petition in error shall comply with Rule 1.36. The response to the amended petition in error shall comply with Rule 1.36(e). All provisions of Rule 1.36 apply to proceedings on the amended petition in error. Provided, an appellate court may, on application of a party or sua sponte, call for briefs on the amended petition in error.

Adopted July 10, 1996

Effective January 1, 1997