( Adams )
( Tulsa County - Deborah C. Shallcross )
DISMISSED
Robert S. Coffey, Tulsa, Oklahoma, For Plaintiff/Appellant
Teresa Thomas Keller, Oklahoma City, Oklahoma, For Oklahoma Employment Security Commission
OPINION
1/ Phouchny El (Claimant) was terminated from her position as a production manager by Bluebell Creameries, Inc. on September 14, 2004. Her claim for unemployment compensation was denied by the Oklahoma Employment Security Commission (OESC) based on a finding ofmisconduct connected with her work. She appealed that decision to the Appeal Tribunal, which affirmed the OESC's decision. After the Board of Review of the OESC affirmed the Appeal Tribunal's decision, Claimant filed a petition for judicial review in the Tulsa County District Court. The trial court affirmed the Board of Review's denial of unemployment compensation, whose order Claimant now appeals. We dismiss the appeal because Claimant failed to give Defendant/Appellee Bluebell Creameries, Inc. (Bluebell) timely notice of her appeal from the order of the District Court.
2/ Judicial review of the Board of Review's decision by a district court, as authorized by 40 O.S. 2-610 (1) (2006), is a "special proceeding," and the procedural requirements are mandatory. Edmondson v. Siegfried Insurance Agency, Inc., 1978 OK 45, 577 P.2d 72. Section 40 O.S. 2-610 (1) requires the Board of Review to "send by mail to each other party to the proceeding a copy of such petition, and such mailing shall be deemed to be service upon all such parties." Pursuant to 40 O.S. 2-610 (3) (2006), appeals from a district court decision on a judicial review request are to "be taken . . . in the same manner as is provided in other civil cases."
3/ The order that Claimant asks us to reverse denied her unemployment benefits, the payment for which Bluebell would be responsible if we were to reverse the district court. Therefore Bluebell is a necessary targeted party to this appeal. See Tinker Investment & Mortgage Corporation v. City of Midwest City, 1994 OK 41, 873 P.2d 1029. When we noticed that Bluebell had not been included in the Certificate of Mailing attached to Claimant's Petition in Error, we issued a show cause order requiring Claimant to demonstrate why this appeal should not be dismissed.
4/ In her response, Claimant concedes that she interpreted the service requirement of 40 O.S. 2-610 (1) to be the same as that required by 2-610(3), i.e., that service was to be effected at each stage of judicial review in the manner prescribed by 40 O.S. 2-610 (1). Although admitting 40 O.S. 2-610 (1) "clearly establishes a manner of service that differs from the norm," she argues that 40 O.S. 2-610 (3) "contains a latent ambiguity" because it does not have "language excluding the manner of service immediately preceding."
5/ We find no such ambiguity and conclude that 40 O.S. 2-610 (3) clearly and unambiguously requires that appeals from the district court's order to the Supreme Court must be conducted "as is provided in other civil cases." Such language mandates compliance with Part I, the Rules of General Application of the Oklahoma Supreme Court Rules. Okla.Sup.Ct. R. 1.23(c) provides, in pertinent part:
"Notice and Entry of Appearance. A copy of the petition in error shall be filed in the trial court and mailed to each party to the appeal, or to the party's counsel of record within the time prescribed for filing the petition in error. The mailing of the copy of the petition in error shall constitute notice of appeal, and no further notice of the appeal is required. Parties served with process or entering a general appearance in the trial court constitute parties to the appeal."
(Emphasis added.)
/6 In this case, the Board of Review served Bluebell a copy of Claimant's Petition for Review, as required by 40 O.S. 2-610 (1). Pursuant to Okla.Sup.Ct. R. 1.23(c), such service made Bluebell a party to Claimant's appeal of the district court order to the Supreme Court. Although Claimant included Bluebell as an appellee in the style of her Petition in Error, she did not mail a copy of the Petition in Error to Bluebell as required by Okla.Sup.Ct. R. 1.23(c).1 This failure prevents this Court from granting corrective relief, if any, against Bluebell, a necessary targeted party to this appeal. See Tinker-Investment & Mortgage Corporation v. City of Midwest City, 1994 OK 41, 873 P.2d 1029.2 Claimant's appeal must be dismissed.
DISMISSED
JOPLIN, P.J., and MITCHELL, V.C.J., concur.
(FOOTNOTES):
1 We need not address Claimant's "no prejudice attached" argument based simply on her delivery of the Petition in Error to the Board of Review for its delivery to Bluebell in September of 2005 and the delivery of her "Opening" and Reply briefs to the Board of Review for its delivery to Bluebell in September and October of 2006. The certificates of mailing were not addressed to the counsel for the Board of Review, only the OESC, which it points out in its response to this Court's show cause order, are separate entities, citing 40 O.S. 4-102 and 40 O.S. 4-202 (2001). See also Edmondson v. Siegfried Insurance Agency, Inc., 1978 OK 45, 577 P.2d 72 (the Commission and the Board of Review are separate entities in proceedings for judicial review). Further, OESC does not admit, and the record does not otherwise demonstrate, that OESC forwarded Claimant's Petition in Error to Bluebell.
2 The language in the Supreme Court Rule upon which the Tinker Court relied, Rule 1.14(b), Rules of Appellate Procedure in Civil Cases, is now found in Okla.Sup.Ct.R. 1.23(c).