Opinion · Supreme Court of Oklahoma

Snyder v. Smith Welding & Fabrication

Snyder v. Smith Welding & Fabrication, 746 P.2d 168 (Okla. 1987)

Type
Opinion
Court
Supreme Court of Oklahoma
Jurisdiction
Oklahoma
Date
1987-11-23
Topic
litigation

*169OPALA, Justice. The dispositive issue — resolved here by an affirmative answer — is whether the instant proceeding for review should be dismissed as untimely brought. The claimant filed two claims against his employer and its insurer. The claims were consolidated and heard together. The trial judge’s disposition, which bears September 12, 1985 as the date of the decision, was sent to the parties on September 16, 1985 [the September 16th order'].

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SNYDER v. SMITH WELDING FABRICATION,1986 OK 35
746 P.2d 168
RICHARD WAYNE SNYDER, PETITIONER, v. SMITH WELDING FABRICATION, ST. PAUL
INSURANCE COMPANY AND THE WORKERS' COMPENSATION COURT, RESPONDENTS.
No. 65383.
Supreme Court of Oklahoma.
June 17, 1986.
As Corrected November 23, 1987.
Rehearing Denied November 24, 1987.
Proceeding for Review of a Decision by the Workers' Compensation Court; Victor R. Seagle, Judge.

Proceeding by claimant to review a decision of the trial judge denying his motion for new trial and reinstating a prior denial of compensation benefits.

PROCEEDING DISMISSED.
William J. Anton, Tulsa, for petitioner.

Paul V. McGivern, Jr., McGivern, Scott, Gilliard, McGivern, Tulsa, for respondents.Page 169
OPALA, Justice.
[1] The dispositive issue — resolved here by an affirmative answer — is whether the instant proceeding for review should be dismissed as untimely brought.

[2] The claimant filed two claims against his employer and its insurer. The claims were consolidated and heard together. The trial judge's disposition, which bears September 12, 1985 as the date of the decision, was sent to the parties on September 16, 1985 [the September 16th order]. This order finds that the claimant did not sustain an accidental injury arising out of and in the course of his employment.

[3] The claimant sought a "new trial" by motion filed on September 20, 1985. He alleged that if another trial were granted "newly discovered evidence" might change its outcome. Before a hearing on the motion — initially scheduled for October 3, 1985 but later reset for October 7, 1985 — the trial judge vacated, ex parte, the September 16th order on September 23, 1985. Following the October 7, 1985 hearing, an order denying claimant's request for a new trial and "reinstating" the September 16th order was sent to the parties on October 22, 1985 [the October 22ndorder].1The claimant's petition for review was brought here onOctober 31, 1985.For the reasons to be stated, claimant's proceeding for review must be dismissed as untimely brought.
I

[4]THE SEPTEMBER 23, 1985 EX PARTE VACATION ORDER, WHICH IS FACIALLYVOID AS VIOLATIVE OF DUE PROCESS, DID NOT EXTEND THE TIME TOCOMMENCE A PROCEEDING TO REVIEW THE SEPTEMBER 16, 1985 ORDER

[5] The Workers' Compensation Court has exclusive jurisdiction over its orders and awardsonlyduring the 20-day period prescribed by law for lodging a proceeding for review in the Supreme Court. Upon notice and adversary hearing, this trial tribunal may, within a period of twenty daysfrom the day the decision wassent to the parties,2vacate its order or award, eithersuasponteor upon application of the party affected. Once an award or order is effectively vacated in this manner, the claim stands as if no decision had ever been made.3

[6] With the exception of default awards or orders,4the Workers' Compensation Court has no power summarily to vacate its awards or orders5without advance noticePage 170to the parties and an adversary proceeding. Due process of law inexorably requires that the parties be given notice and an opportunity to be heard before any of their substantial rights may be altered or affected.6Any compensation order, other than one bydefault, which vacates a prior decision without notice andadversary hearing, constitutes a denial of due process and isvoid.7

[7] The September 23, 1985 action, by which the trial judge vacated the September 16th order and thus deprived the employer and its insurer of their rights in that disposition, was rendered without affording to the parties (a) advance notice of the time and place of the hearing and (b) the opportunity to resist the vacation of the decision. This fact stands undisputed on the face of the record before us. Furthermore, there is no indication here that the employer (or the insurer) had been afforded an opportunity for but waived its right to a hearing or that it consented to the adverse order.

[8] One who is aggrieved by a decision of the trial judge of the Workers' Compensation Court has three available remedies: (a) he can appeal to a three-judge review panel within ten days of the date the order or award is sent;8(b) he can file a proceeding for review in the Supreme Court within 20 days after the trial judge's order is sent;9or (c) he can, upon notice to the opposite parties and after an adversary hearing, secure vacation of the adverse decision by orderwhich must be sent tothe parties within the 20-day statutory period that runs from thedate the decision which is to be set aside has been sent.10None of these remedies was invoked here. Instead of lodging an appeal to the three-judge review panel or timely filing an original proceeding in this court to review the September 16th order, the claimant elected to seek reconsideration of the adverse decision by a "motion for new trial" — a procedural device unauthorized and unavailable in the compensation court procedure.11

[9] In short, the trial judge waswithout jurisdictionwhen he vacated, ex parte, the September 16th order. We hence hold that the September 23rd vacation order, which is ineffectual and facially void, did not extend the claimant's time to bring a proceeding for review of the September 16th order.12
II

[10]NEITHER THE UNAUTHORIZED NEW-TRIAL MOTION NOR THE TRIAL JUDGE'SOCTOBER 22, 1985 ORDER, WHICH IS FACIALLY VOID FOR LACK OFJURISDICTION, EXTENDED THE TIME TO BRING A PROCEEDING TO REVIEWTHE SEPTEMBER 16, 1985 ORDER

[11] The October 22, 1985 order denying the claimant's motion for new trial was effectedafterexpiration of the 20-day period — the time during which the trial tribunal could have acted with respect to its decision. This time limit, which ran here from the September 16th order, could not bePage 171extended either by a motion for new trial13or by the void September 23rd vacation order. The trial judge was hence without jurisdiction to makeany orderon October 22nd. At this point in time more than twenty days had already elapsed from September 16, 1985, the date of the original decision whose prior vacation was legally inefficacious.

[12] Although the respondent did not seek dismissal of this proceeding on the ground that it was filed here too late, there is no impediment to oursua sponteconsideration of the fatal defect in the commencement of this case. This court has an affirmative duty to inquire into its jurisdiction in every matter before it.14The September 16th order is beyond the reach of our reviewing cognizance and must hence remain undisturbed. The September 23rd vacation and the October 22nd reinstatement actions are both facially void and of no effect. Neither could extend the time to bring here a proceeding for review of the September 16th order. The claimant's petition for review, filed here October 31, 1985, was not timely brought.

[13] PROCEEDING DISMISSED.

[14] DOOLIN, C.J., HARGRAVE, V.C.J., and LAVENDER and KAUGER, JJ., concur.

[15] SIMMS, ALMA WILSON and SUMMERS, JJ., dissent.
[16] SUPPLEMENTAL OPINION ON REHEARING
OPALA, Justice.
[17] One who seeks corrective relief isresponsiblefor, andbound by,the contents of the record presented for review.1Court proceedings reflected in the instruments a party has designated for inclusion, when incorporated in the assembled record by the court clerk's certificate and transmitted to this court,cannot be changed or impeached by affidavitoffered in support of the appealing party'srehearing petition. In re Hess'Estate,Okla.,379 P.2d 851, 859 [1963];Sooner Federal Sav. andLoan Ass'n v. Mobley,Okla.,645 P.2d 1000, 1004 [1982];Eckelv. Adair,Okla.,698 P.2d 921, 925 [1985] andHart v. JettEnterprises, Inc., et al.,744 P.2d 561(Opala, J., concurring); see also,State ex rel. Department of Highways v. Lehman,Okla.,Page 172462 P.2d 649, 650 [1969] andMartin v. Chapel, Wilkinson, Riggs,and Abney,Okla.,637 P.2d 81, 87 [1981].

[18] Rehearing is accordingly denied.

[19] DOOLIN.C.J., HARGRAVE, V.C.J., and LAVENDER and KAUGER, JJ., concur.

[20] SIMMS, ALMA WILSON and SUMMERS, JJ., dissent.
[21] ALMA WILSON, Justice, with whom SUMMERS, Justice, joins, dissenting to denial of rehearing.
[22] In his petition for rehearing the claimant argues that the September 23, 1985, vacation of the September 16, 1985, order was not ex parte as this Court's opinion states, but that in fact attorneys for both parties were present and agreed to the vacation. Included in the petition for rehearing is an affidavit from Paul McGivern, Jr., attorney for respondents, stating that he was present on September 23, 1985, along with attorney for claimant when the vacation order was adopted, and "that pending the outcome of Petitioners Motion for New Trial, both parties were aware of and agreed to said vacation order." An examination of the record does not reveal whether the September 23, 1985, order was ex parte. As both parties agree, contrary to our opinion, that the order was not ex parte, this case needs to be decided upon other grounds.

[23] On the timely vacation of the September 16, 1985, order on September 23, 1985, by agreement of the parties, the claim stands as if no decision had ever been made.William A. SmithConstruction Co. v. Price,178 Okla. 423,63 P.2d 108, 111 (1936),Adams v. City of Anadarko,202 Okla. 72,210 P.2d 151, 152 (1949). The order arising from the October 7, 1985, hearing was sent October 22, 1985, and timely appealed to this Court on October 31, 1985. Dismissal of this appeal on the erroneous sua sponte fact assumption that the September 23, 1985, hearing was ex parte should be reconsidered by this Court. I would grant rehearing.
  1. This order, sent to the parties on October 22, 1985, bears October 17, 1985 as the date of the decision. ↩
  2. The time to appeal from an appealable district court decision runs from the day of its rendition, while the time to seek review of a Workers' Compensation Court decision runs from the dateit has been sent to the parties.In this case, the 20-day period for lodging a review proceeding began to run onSeptember 16thwhen the initial order was sent to the parties.Cassidy v. Dielsen,Okla.,560 P.2d 188, 190 [1977].Oklahoma Pipe Line Co. v. State Industrial Commission,149 Okla. 162,299 P. 180, 182 [1931];Union Indemnity Co. v. Saling,166 Okla. 133,26 P.2d 217, 224 [1933];William A. Smith ConstructionCo. v. Price,178 Okla. 423,63 P.2d 108, 111 [1936];Owens v.McCallum Forber,186 Okla. 305,97 P.2d 754, 755 [1940];Jonesv. Troup-Moore Hall Drilling Company,Okla.,359 P.2d 577, 578 [1961];Sears, Roebuck Company v. Heller,Okla.,401 P.2d 184, 185-186 [1965];N.D. Crutcher Construction Company v. Harbin,Okla.,434 P.2d 881, 883 [1967];Armstrong v. NetherlandsPipeline Construction Co.,Okla.,447 P.2d 762, 764 [1968] andB.F. Goodrich Company v. State Industrial Court,Okla.,429 P.2d 787, 789-790 [1967]. ↩
  3. William A. Smith Construction Co. v. Price, supranote 2 andAdams v. City of Anadarko,202 Okla. 72,210 P.2d 151, 152 [1949]. ↩
  4. Sears, Roebuck Company v. Heller, supranote 2 at 186;Smith v. State Industrial Court,Okla.,408 P.2d 317, 321 [1965] andB.F. Goodrich Company v. State Industrial Court, supranote 2 at 790.

    InSmith, supraat 321, we said that "[t]he exception applicable to defaults is based on the premise that `one who obtains a default judgment is charged with notice that the judgment is merely conditional in the sense that it will not become final and absolute until the time within which it may be vacated has expired.'" ↩
  5. The employer has a legally protectible interest in an order that denies compensation to an employee. The order may not be either vacated or modified without notice to the employer and an opportunity to be heard in the defense of the order's validity or continued efficacy.McMinn v. State Industrial Court,Okla.,366 P.2d 954, 947 [1961];Carpenter v. Powel Briscoe, Inc.,Okla.,380 P.2d 245, 247 [1963];Smith v. State Industrial Court,supranote 4 at 320;B.F. Goodrich Company v. State IndustrialCourt, supranote 2 at 789 andArmstrong v. NetherlandsPipeline Construction Co., supranote 2 at 764. ↩
  6. See cases cited insupranote 5. ↩
  7. Union Indemnity Co. v. Saling, supranote 2, 26 P.2d at 224. ↩
  8. 85 O.S. 1981 § 3.6[85-3.6](A). ↩
  9. 85 O.S. 1981 § 3.6[85-3.6](B) and Rule 1.100(a), Rules on Perfecting a Civil Appeal,infranote 13. ↩
  10. See cases cited insupranote 2. ↩
  11. The provisions of 12 O.S. 1981 § 651[12-651], which authorize and define the function of a motion for new trial, applyonlyto suits in the district courts. The legislature has not authorized a similar procedural device to secure judicial reconsideration of an order or award made in the Workers' Compensation Court.Knowles v. Whitehead Oil Co.,121 Okla. 55,247 P. 653[1926];Transcontinental Oil Co. v. Eoff,126 Okla. 91,258 P. 743[1927];Magnolia Petroleum Co. v. Mitchell,181 Okla. 48,72 P.2d 502, 504 [1937];B.F. Goodrich Company v. State IndustrialCourt, supranote 2 at 789 andLincoln Rock Corp. v. Voyles,Okla.,590 P.2d 186, 188 [1979]. ↩
  12. Union Indemnity Co. v. Saling, supranote 2. ↩
  13. Rule 1.76, Rules on Perfecting a Civil Appeal, 12 O.S. 1981, Ch. 15, App. 2, provides in pertinent part:

    "APPEALS FROMTRIBUNALS OTHER THAN THE DISTRICTCOURT

    PART III. GENERAL PROVISIONS APPLICABLE TO OTHER CIVIL APPEALS

    * * * * * *

    Rule 1.76. Other rules applicable

    Unless specifically provided otherwise in any subsequent Part of these Rules the following provisions shall apply:

    (a)The time for commencing the appeal cannot beextended either by the tribunal or by this court, andthe filing of a motion for a new trial,reconsideration, re-examination, rehearing or tovacate the decision shall not operate to extend thetime to appeal.* * *" [Emphasis added.]

    Rule 1.100(a), Rules on Perfecting a Civil Appeal, 12 O.S.Supp. 1985, Ch. 15, App. 2, provides:

    "PART III(b). PROCEEDINGS TO REVIEW A DECISION OF THE WORKERS' COMPENSATION COURT

    Rule 1.100 Mode and time of commencing proceedings

    (a)Decisions reviewable and time for theircommencement.A decision of the trial judge or of the Workers' Compensation Court en banc may be brought for review to this court in compliance with 85 O.S. 1981 § 3.6[85-3.6] and the Rules in Part III and III(b).The proceeding shall be commenced by filinga petition for review in this court within twentydays after a copy of the adverse decision shall havebeen sent to the parties affected.* * *" [Emphasis added.]

    See also,Sandoma Petroleum Co. v. Tow,90 Okla. 276,217 P. 412[1923];Knowles v. Whitehead Oil Co., supranote 11;GraverCorporation v. Cullum,136 Okla. 209,277 P. 265, 267 [1929];Mills v. W.E. Logan Sons,Okla.,281 P.2d 175, 178 [1955] andB.F. Goodrich Company v. State Industrial Court, supranote 2 at 789. ↩
  14. Cate v. Archon Oil Co., Inc.,Okla.,695 P.2d 1352, 1356 [1985]. ↩
  15. "Fundamental fairness in litigation process cannot be afforded except within a framework of orderly procedure. No area of the law may lay claim to exemption from the range of its basic strictures — not even the workers' compensation law. Chaos, caprice and ad hoc pronouncements would inevitably follow from any departure."Pryse Monument Co. v. District Court, Etc.,Okla.,595 P.2d 435, 438 [1979]. ↩