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Rotert v. Rotert

Court of Appeals of Oklahoma, Division III

June 2, 2017

RODNEY ROTERT, dba D&R FAB, Plaintiff/Counter-Defendant/Appellant,
v.
ROTERT, a Pennsylvania Corporation, PHILADELPHIA INDEMNITY INSURANCE COMPANY, a Pennsylvania Corporation, Defendants/Counter-Claimants/Appellees, and COPART, INC., an Oklahoma Corporation, COPART AUTO AUCTIONS, an Oklahoma Corporation, COPART OF OKLAHOMA, INC., an Oklahoma Corporation, THE CITY OF TULSA, a Municipal Corporation, J.J. GRAY, an Individual, RICK EBERLE, an Individual and JOHN DOES 1 THROUGH 5, Defendants.

          Mandate Issued: 12/05/2017

         APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE LINDA MORRISSEY, JUDGE

          Mark D. Lyons, LYONS & CLARK, INC., Tulsa, Oklahoma, for Plaintiff/Counter-Defendant/Appellant,

          Jed W. Isbell, CONNER & WINTERS, LLP, Tulsa, Oklahoma, for Defendant/Counter-Claimant/Appellee.

          KENNETH L. BUETTNER, CHIEF JUDGE

         ¶1 Plaintiff/Counter-Defendant/Appellant Rodney Rotert, dba D&R Fab, appeals from the trial court's grant of summary judgment in favor of Defendants/Counter-Claimants/Appellees Philadelphia Insurance Companies and Philadelphia Indemnity Insurance Company (collectively, Insurer). Insurer argues Rotert's Petition in Error was untimely filed. Rotert filed his Petition in Error more than thirty days after the trial court's Journal Entry of Final Judgment, which included a finding that there was no just reason for delay and directed that it was a final judgment. The appeal time had expired before Rotert filed his Petition in Error and we therefore dismiss this appeal.

         ¶2 In his August 2010 Amended Petition, Rotert asserted he was the lawful owner of a car seized by Tulsa Police officers, including Defendants Gray and Eberle, in May 2009 and listed for sale by Defendant Copart. Rotert alleged Insurer claimed ownership of the car and directed police to seize it. Rotert asserted claims for conversion against Insurer and Defendants John Does 1-5; conspiracy and abuse of process against Insurer, the City of Tulsa, Eberle, Gray and the John Does; and replevin against Insurer and Copart; denial of civil rights against Insurer, Eberle, Gray and the John Does. Rotert finally sought a temporary restraining order and permanent injunction. Insurer counterclaimed seeking a declaratory judgment and making claims for conversion, abuse of process, and negligence.

         ¶3 The parties all filed motions for summary judgment and responses over the next several years, which included a gap during the automatic stay imposed by Rotert's bankruptcy proceeding. The trial court issued a minute order August 9, 2016, in which it granted summary judgment in favor of Insurer on its claim for a declaratory judgment and on all of Rotert's claims against Insurer. Rotert filed a motion to reconsider the order granting summary judgment. Insurer filed a response and Rotert replied.

         ¶4 The trial court docket shows Insurer filed its Motion to Settle Journal Entry August 25, 2016, to which it attached a proposed Journal Entry including the language "there is no just reason for delay and this is a final judgment." [1] The docket also shows Rotert filed a response to the Motion to Settle Journal Entry in which he urged the trial court not to enter a journal entry until ruling on his motion to reconsider. Rotert did not object to the language of Insurer's proposed journal entry.

         ¶5 Hearing on the Motion to Settle Journal Entry was held October 24, 2016 and the trial court filed its Journal Entry of Final Judgment the same day. The journal entry ordered that judgment was entered in favor of Insurer on all the claims filed against it by Rotert and that judgment was entered in favor of Insurer and against Rotert on Insurer's counterclaim for declaratory judgment. The Journal Entry lastly provided:

It is further ordered, adjudged and decreed that there is no just reason for delay and that this is a final judgment in favor of (Insurer) and against... Rotert....

         The Journal Entry was signed by the trial court and approved as to form and signed by counsel for Insurer, the City of Tulsa, and Rotert. The docket sheet shows the trial court also denied Rotert's motion to reconsider, granted Insurer's motion to settle journal entry, and denied Rotert's motion for summary judgment the same day.

         ¶6 Rotert filed his Motion to Certify Ruling for Interlocutory Appeal and/or Motion for Final Order November 2, 2016. Insurer responded November 21, 2016, arguing the October 24, 2016 Journal Entry included the trial court's finding there was no just reason for delay and that it was a final order. [2] Following a hearing held February 22, 2017, the trial court entered its Final Judgment March 2, 2017, in which it "formally certified" the judgment for appeal.

         ¶7 An appeal from a final judgment of a district court must be commenced by filing a petition in error within thirty days from the date the judgment was filed in the district court. Okla.Sup.Ct.Rule 1.21(a). Rotert filed his Petition in Error March 29, 2017. Insurer filed a response along with a motion to dismiss the appeal as being untimely filed. In its motion to dismiss, Insurer argued that Rotert did not file his Petition in Error within thirty days of the October 24, 2016 Journal ...


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