GGRKE v. SHERMAN (2009)

¶ 1 The dispositive issue presented is whether Monsi Kassa Tafari L'ggrke (appellant) should be granted leave to file his petition for certiorari out of time because he did not receive actual notice of the opinion of the Court of Civil Appeals (COCA) until after the mandate had been issued. Because actual notice of an appealable event triggers the time to file, the mandate is recalled and the appellant is given leave to file his petition for certiorari out of time.

FACTS

¶ 2 On October 29, 2007, the appellant, a prisoner at the Jim E. Hamilton Correctional Center in Hodgen, Oklahoma, filed an application for writs of prohibition and mandamus based on the trial court's denial of his motion to vacate a dismissal order in an automobile negligence action. The cause was recast as an appeal of a final order, and we assigned it to COCA on August 14, 2008. In a May 21, 2009 opinion, COCA affirmed the denial of the appellant's motion to vacate. The appellant did not petition for certiorari within twenty days, and the mandate was issued on June 25, 2009. On July 17, 2009, the appellant filed a notice of change of address, petitioned for the mandate's recall, and requested leave to file his petition for a writ of certiorari out of time.¹

¶ 3 The appellant was transferred from Hodgen to the Tulsa County Jail on May 14, 2009. It is undisputed that the appellant had difficulty receiving his records and his belongings. The appellant alleges that he petitioned officials at Hodgen five times for the transfer of the records, to no avail. He also alleges that he was forced to employ the help of an elder in his church, who had to make three visits to Hodgen before the Chief of Security would release the records, which he finally received on June 15, 2009. This oversight contravenes DOC regulations, which provide that if a transferring inmate has legal materials, the documents must be transferred with the inmate.²

¶ 4 However, the thrust of the pleading is his claim that he did not receive a copy of the COCA opinion and only became aware of it when he was notified by a friend on June 31, 2009. He also notes that because the Tulsa County Jail has no law library, the only way to do legal research is to submit a full case citation to jail authorities, who then deliver the case to the inmate. He also alleges that, as of the filing date of his “Application For Writ of Certiorari Out of Time” (July 15, 2009), he had not received any legal mail after his transfer to the Tulsa County Jail. When he contacted the mail custodian at Hodgen, she claimed that she had no record of any mail from COCA and that any mail he had received had been returned to sender.

¶ 5 It is clear that the Supreme Court Clerk mailed the opinion; however, there is no record that any returned mail was received by the Clerk's office. Apparently, the opinion was either stored or discarded at Hodgen.³ The appellee does not dispute the appellant's version of the events; she merely argues that because he did not file a notice of change of address as soon as he was transferred, he should not be permitted to file his petition for certiorari out of time.

¶ 6 Although the appellant did not file a notice of change of address with the Court as required by Rule 1.5(d),⁴ Oklahoma Department of Corrections (DOC) policy requires that if an offender has been transferred, “legal mail will be forwarded to the offender's current facility.”⁵ There is a similar policy for released or paroled inmates, which requires all first class mail to be forwarded within twenty-four hours.⁶ Federal regulations also mandate timely forwarding of prisoner mail. Title 28 C.F.R. § 540.25(e) provides that “staff shall use all means practicable to forward special mail.” Special mail includes correspondence received from state courts.⁷

¶ 7 BECAUSE THE APPELLANT DID NOT RECEIVE ACTUAL NOTICE OF THE COCA OPINION UNTIL AFTER MANDATE HAD BEEN ISSUED, THE MANDATE IS RECALLED AND THE APPELLANT IS GIVEN LEAVE TO FILE HIS PETITION FOR CERTIORARI OUT OF TIME.

¶ 8 Actual notice of an appealable occurrence triggers the running of the appeal time,⁸ and there is no duty to monitor the court's docket for appealable events unless certain events trigger such a duty.⁹ A party proceeding pro se in a civil action or appeal is held to the same standards as an attorney.¹⁰ Regardless, in instances involving both represented and unrepresented parties, we have routinely found that when there is a palpable problem with service, the appealable event is the date of actual notice.¹¹

¶ 9 For instance, in McCullough v. Safeway Stores, Inc., 1981 OK 38, 626 P.2d 1332, the trial judge granted a motion for summary judgment, but did not notify either party until about two months later. We held that the time to appeal ran from the time that the parties received actual notice of the order. In Joiner v. Brown, 1996 OK 112, 925 P.2d 888, the trial judge signed an order granting a motion to dismiss, but the defendant did not send a file stamped copy of the order to the plaintiff, despite counsel's agreement to send the order. The plaintiff was actually notified of the order about one month after it was filed. We held that because it was filed within thirty days of his receipt of actual notice, the plaintiff's appeal was timely.

¶ 10 Here, COCA issued its opinion on May 21, 2009, and the mandate was issued on June 25, 2009. However, the DOC failed to act in accordance with its rules, and, as a result, the appellant did not receive actual notice of COCA's opinion until after mandate had issued. It is undisputed that the appellant did not timely file his notice of change of address, and that he did not receive actual notice of the opinion until June 31, 2009. His pleadings were filed on July 17, 2009-within twenty days of his receipt of actual notice .¹² Although each of the parties bear some degree of fault, the facts in this cause clearly merit the application of the principle that the time period ran from the date the appellant received actual notice. Because he filed his pleadings within twenty days of his receipt of actual notice, the mandate is recalled, and the appellant is given leave to file his petition for certiorari out of time.

CONCLUSION

¶ 11 It would have been difficult, if not impossible, for the appellant to request a copy of the opinion in Tulsa County Jail when he could not have known the citation of a COCA decision of which he had no prior notice. Because the DOC, in violation of its rules, did not forward the appellant's legal mail, the mandate is recalled, and the appellant is given leave to file his petition for certiorari out of time. We express no opinion on the merits of the appeal.

MANDATE RECALLED; APELLANT GRANTED LEAVE TO FILE PETITION FOR CERTIORARI OUT OF TIME.

KAUGER, J.

EDMONDSON, C.J., HARGRAVE, OPALA, KAUGER, WATT, COLBERT, and REIF, J.J., concur. TAYLOR, V.C.J., and WINCHESTER, J., dissent.