The Oklahoma Bar Journal September 2023

within 30 days. 28 The other appel late deadlines, however, are much shorter. The response to the petition in error and the counter-designation of record must be filed within 10 days, not 20. 29 The record must be completed by the district court within 60 days, not six months. 30 And the appellate briefing sched ule is substantially abbreviated, with the opening brief due 30 days from the notice of completion of record, the response due 20 days after the opening brief and the reply due a mere 10 days after the response. 31 Parties not familiar with the different types of appeals often get caught unaware and miss these deadlines, so as always, be sure to consult the Supreme Court rules when calendaring these appeals. DISCRETIONARY REVIEW In addition to appeals as a matter of right, the Supreme Court also reviews certain trial court orders as part of its discretion ary docket. Review under these procedures is extraordinarily rare, however, and counsel should advise their clients about both the costs and the likelihood of success when attempting to obtain early review under these procedures. Review of Certified Interlocutory Orders Under 12 O.S. §952(b)(3) First, 12 O.S. §952(b)(3) permits, but does not require, the Supreme Court to review an order that is not final but, nevertheless, “affects a substantial part of the merits of the controversy,” so long as the district court certifies that an immediate appeal of that order “may materially advance the ultimate termination of the litiga tion.” This form of review is doubly discretionary: First, the district court must agree to certify the

have them certified by the district court and then submit this certified record along with the petition in error. Absent special circumstances, no appellate briefing is allowed in an accelerated appeal – the appellate court will review only the one-page summary and statement of issues set forth in the petition in error, along with the briefing that was filed in the district court. 25 Interlocutory Orders Appealable by Right In addition to judgments and final orders, there is another category of orders appealable as a matter of right. The Legislature has identified certain types of interloc utory orders that are not final but, nonetheless, are generally critical enough, despite their interlocutory nature, to warrant immediate appel late review. These “interlocutory orders appealable by right” include orders granting a motion for new trial or motion to vacate a judgment, orders granting or denying a tempo rary injunction, attachment orders, orders appointing or refusing to appoint a receiver, orders directing or refusing to direct the payment of money pendente lite , orders certi fying or refusing to certify a class action, orders referring or refusing to refer a matter to arbitration, orders denying motions to dismiss under the Oklahoma Citizens Participation Act 26 and certain probate and protective orders. 27 Because these orders are, by definition, not final and, thus, the underlying trial court proceedings may remain ongoing, the procedure for appellate review is substantially accelerated. Like with a judgment or final order, an appeal from an inter locutory order appealable by right is commenced by filing a petition in error and paying the requisite fees

Most appeals involving judg ments and final orders are governed by Supreme Court Rules 1.20-1.35. The parties designate the items to be included in the appellate record by listing them and/or circling them on the district court docket sheet. 19 The district court clerk then has six months from the date of the under lying order to compile the record as designated. 20 It is the appellant’s responsibility to check in with the district court clerk throughout this process to ensure all designated items are available, and the record will be completed within the desig nated time period. 21 Once the district court has fin ished compiling the record, the clerk will file a notice of completion of record in the Supreme Court, which triggers the appellate briefing cycle. The appellant’s opening brief is due 60 days from the filing of the notice of completion. 22 The response is due 40 days after the opening brief, and the reply is due 20 days after the response. 23 There are separate briefing rules for cross- and counter- appeals, and there are shorter brief ing deadlines for specific types of appeals, like driver’s licenses and juvenile appeals, so parties should always double-check the Supreme Court rules before preparing their appellate briefs. If the judgment or final order being appealed is an order granting a motion for summary judgment or motion to dismiss, a special “accelerated” procedure applies. 24 The record is limited to certain items (primarily the petition, answer and relevant motion briefing and hearing tran scripts), and rather than simply designate items in the record for the court clerk to compile later, the appellant must itself obtain copies of all record items, compile and

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

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THE OKLAHOMA BAR JOURNAL