Summary
In Towne v. Hubbard, 1999 OK 10, 977 P.2d 1084, we explained that an appeal from an order adjudicating a ward's choice of counsel was an appeal from an interlocutory order pursuant to § 721 as an appeal from an order affecting a substantial right: “An appeal may be taken from the following judgments or orders of the district court:... 10. From any other judgment, decree or order of the court in a probate cause, or of the judge thereof, affecting a substantial right.” 58 O.S.2011 § 721(10).
Summary of this case from Berryhill v. Rhodes (In re Guardianship of Berry)Opinion
No. 92,412
Decided: February 16, 1999
ORDER
¶ 1 On consideration of the paperwork on file, the court finds, concludes and orders that:
(1) petitioner seeks corrective relief from a January 5, 1999 order, entered in Cause No. PG-98-570, on the docket of the District Court in Oklahoma County, by which petitioner's lawyer, Harley E. Venters, Esq., was removed as her counsel of record and replaced by another legal practitioner of the trial judge's selection and appointment.
¶ 2 (2) an order removing a party's counsel (upon disqualification or for other reasons) may be reviewed on appeal brought by the client. 12 O.S. 1991 § 953[ 12-953]; Piette v. Bradley Leseberg, 1996 OK 124, 930 P.2d 183.
¶ 3 (3) appealability of a guardianship (or probate) order is governed generally by the provisions of 58 O.S. 1991 § 721[ 58-721]. In re Mize's Guardianship, 193 Okla. 164, 142 P.2d 116 (1943). That section authorizes an aggrieved party's appeal from an interlocutory order that affects "a substantial right." State ex rel. Reirdon v. County Court of Marshall County, 183 Okla. 274, 81 P.2d 488 (1938). When, as in this case, denial of due process is assigned as error, the order to be reviewed is deemed to affect the appellant's "substantial rights" within the meaning of § 721 [ 58-721] (10). Lebus v. Carden, 1978 OK 91, 583 P.2d 503, 504 (1978).
¶ 4 (4) the January 5, 1999 guardianship order, from which relief is sought herein by a prerogative writ that is to be granted in the exercise of this court's original jurisdiction, constitutes an appealable interlocutory guardianship decision. 58 O.S. 1991 § 721[ 58-721] (10). Petitioner has standing to bring the appeal. Piette v. Bradley v. Leseberg, supra paragraph (2).
¶ 5 (5) a party's quest for a prerogative writ may be recast as an appeal when the original proceeding was brought here within the statutory time to invoke this court's reviewing cognizance. Prock v. Dist. Court of Pittsburg County, 1981 OK 41, 630 P.2d 772, 775.
¶ 6 (6) this original proceeding, which challenges an appealable interlocutory order in guardianship, is hereby recast as a timely appeal. Petitioner is designated as appellant and this cause shall be styled: In the Matter of the Guardianship of Fern Alice Towne. All the real parties in interest who are appearing herein are designated appellees.
¶ 7 (7) this appeal shall henceforth proceed in accordance with an accelerated schedule. Within twenty (20) days of this order's date, appellant shall file a petition in error and a record for an accelerated appeal. Both documents shall conform to Rule 1.36, Okla. Sup. Ct. Rules, 12 O.S.Supp. 1998, Ch. 15, App. 1. Appellees shall file their responses. If additional record be desired for inclusion, appellees shall make its designation within twenty (20) days of the date appellant files her petition in error. See Rule 1.36(e).
¶ 8 (8) the briefs now on file shall be considered as briefs on appeal. Because this cause stands recast sans advance notice, any party may file an additional brief, Okla. Sup. Ct. R. 1.36(g), no later than fifteen (15) days of the day appellees file their responses to the petition in error. No answer or reply briefs may be offered without prior leave of court.
¶ 9 (9) this cause is retained sua sponte for disposition. Okla. Sup. Ct. R. 1.24(a).
DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 16th DAY OF FEBRUARY 1999.
________________________________ CHIEF JUSTICE
SUMMERS, C.J., HARGRAVE, V.C.J., OPALA, WILSON, WATT, J.J., concurring; HODGES and LAVENDER, J.J., not voting; SIMMS, J., dissents; Kauger, J., absent.