Large v. Mayes , 100 Idaho 450 ( 1979 )

HARGRAVES, Justice, Pro Tem.

Respondents listed certain real property for sale. Prior to August 1976, the parties here had negotiated for the purchase and sale of the property. The specifics of such prior negotiations are not particularly relevant.

On August 24, 1976, a contract was executed by respondents granting appellant an exclusive option to purchase the property upon payment by appellant of the sum of $1,000.00 which sum would be applied to the purchase price if the sale was completed.

On December 25, 1976, appellant exercised his option by delivering written notice to an agent of respondents pursuant to the agreement.

At this time and before appellant did not have the necessary $24,000.00 in his possession or account to complete the transaction. He was negotiating with others to arrange financing. By December 29,1976, appellant was still without the required funds; but, he offered respondents his personal check for this amount explaining that there were not sufficient funds in his account to cover the check. It was proposed that respondents accept the check as payment but hold it until January 5, 1977.

Following this proposal, respondents consulted with their attorney and were advised that the Internal Revenue Service had opined that if the check were accepted in 1976 and cashed by January 5, 1977, the respondents would realize substantial tax benefits by reason of the rules pertaining to installment sales. Appellant was aware of this taxation question and knew that respondents were very concerned about the matter. On the advice of their attorney and the opinion by the I.R.S., respondent agreed to accept the check, but only on the condition that appellant would deposit sufficient money in his personal account to enable respondents to cash the check no later than January 5, 1977. The parties understood that all other provisions of the original agreement were to remain in full force and effect.

On January 5, 1977, respondents went to their attorney’s office to complete the transaction. They waited until approximately 4:45 p. m. At about that time appellant telephoned advising he had the money. It appears that at that time he had in his possession a check from Hoff Lumber Co., made payable to appellant and respondent, Orin Mayes, in the sum of $25,000.00. Appellant was informed that if he could not have the money deposited in his account in time to permit respondents to cash the check they were holding by the end of the banking hours of January 5, 1977, respondents would exercise their right to cancel the agreement. No funds were deposited by the end of banking hours on that day but some time after 6:00 p. m. (January 5), appellant went to respondents’ home to tender the Hoff check, which tender was refused. Notwithstanding the refusal, however, appellant left the check with respondents over their objections.

Appellant thereafter filed this action for specific performance or, in the alternative, for damages, alleging that the facts support a finding that appellant substantially performed his part of the contract and that the respondents are in breach.

Respondents’ motion for summary judgment was granted by the trial court, finding that:

1. Appellant had properly exercised the option by giving written notice before December 25, 1976.

2. Upon the exercise of the option there was a contract for sale of the property subject to a condition precedent, namely payment by appellant of the sum of $24,-000.00 on or before December 31, 1976.

3. The agreement was “modified” (by the parties) with relation to the payment due on or before December 31, 1976.

4. Failure of appellant to deposit $24,-000.00 by January 5, 1977, was a material breach of respondents’ conditional acceptance of the “insufficient” check and hence a material breach of the contract, giving the respondents the right to revoke acceptance of the check and terminate the contract. Respondents retained the $1,000.00 paid for the option.

After summary judgment was entered in favor of respondents, the trial court also awarded costs and attorney fees pursuant to I.C. § 12-121.

Prior to a hearing on the merits in this case, the Court denied respondents’ motion to dismiss the appeal. This Court is of the opinion, however, that at this time it is appropriate to re-examine the issue of timeliness of the appeal since the respondents’ renewed their motion and presented argument on it at the hearing on appeal. Therefore, the previously entered order denying respondents’ motion to dismiss is withdrawn.

Complaint was filed June 7, 1977. Answer and counterclaim was filed July 25, 1977. On August 31, 1977, appellant moved to strike or dismiss the counterclaim. After hearing on this motion, the same was denied September 23, 1977. Thereafter depositions were taken of the parties; and on February 23, 1978, respondents moved for summary judgment. This motion was taken under advisement; and on April 12, 1978, the trial court issued its “Memorandum Decision & Order Granting Motion for Summary Judgment.” This order directed defendants’ attorney to provide an appropriate form of judgment.

On April 19, 1978, “Summary Judgment for Defendants” was filed. The judgment recites generally that judgment is awarded in favor of defendants and against plaintiff; that the complaint is dismissed; and that the defendants have costs and attorney fees.

On May 1, 1978, appellant moved for summary judgment in his favor and against respondents on the counterclaim. On May 17, 1978, the parties stipulated that the counterclaim be dismissed with prejudice; and on the same day the trial court heard arguments by counsel on appellant’s motion to disallow costs. At this time defendants (respondents) were ordered “to prepare and submit an amended Judgment for Court to sign.” On May 31, 1978, an instrument was filed, signed by the trial judge, entitled: “Amendment to Summary Judgment for Defendants, as to attorney’s fees only.” This instrument recites that “the Summary Judgment for defendants entered the 19th day of April, 1978, be amended as to attorney’s fees only” (our emphasis) to award reasonable attorney’s fees in the amount of $2,000.00.”

On June 23, 1978, an instrument entitled “Final Judgment” was filed which recites generally the matters heretofore referred to, and other than a reference to the “Order” of April 12, 1978, the stipulation of dismissal of the counterclaim, and the motion to disallow costs and attorney fees, is no different in substance from the judgment of April 19, 1978. The record on appeal does not disclose any intervening motion of any kind after the April 19, 1978, judgment except the motion to disallow costs.

From this state of the record we must now decide whether or not the Notice of Appeal filed June 28, 1978, was timely. The pertinent parts of Rule 14, Idaho Appellate Rules, provides that any appeal as a matter of . right from the district court may be made only by physically filing a Notice of Appeal with the clerk of the district court within forty-two (42) days from the date evidenced by the filing stamp of the clerk of the court on any judgment . of the district court appealable as a matter of right . The Rule further provides:

“The time for an appeal from such judgment, ... is terminated by the filing of a timely motion which, if granted, could affect . . . the judgment (except motions under Rule 60 of the Idaho Rules of Civil Procedure or motions regarding costs or attorneys fees), . . ” (our emphasis)

No findings of fact were entered in this case, indeed, none were required. (See Rule 52(a), I.R.C.P., and D & M Development Co. v. Sherwood and Roberts, Inc., 93 Idaho 200, 457 P.2d 439 (1969)). Appellant might have made a motion to alter or amend judgment pursuant to Rule 59(e), I.R.C.P., or to reconsider which has been recognized as a Rule 59(e) motion Obray v. Mitchell, 98 Idaho 533, 567 P.2d 1284 (1977), but neither a Rule 59(e) motion nor a Rule 60 motion was filed here.

Rule 54(b), I.R.C.P., provides in pertinent part:

“When more than one claim for relief is presented in an action, ... as a counterclaim . . . , the court may direct the entry of a final judgment upon one or more but less than all of the claims only upon an express determination that there is no just reason for delay and upon an express direction for the entry of the Judgment. In the absence of such determination and direction [the judgment does not become a final judgment and proceedings are not terminated as to other claims or parties].”

We have had occasion, in other cases, to interpret this Rule. Our decisions have been uniform in requiring the express finding by the trial court as enunciated in the Rule and have uniformly held that where partial summary judgment has been granted, such judgment was not appealable in the absence of an express determination that there was no just reason for delay. See, for example, Merchants, Inc. v. Intermountain Industries, Inc., 97 Idaho 890, 556 F.2d 366 (1976); John Deere Company v. Kunzler, 97 Idaho 921, 557 P.2d 199 (1976).

We have likewise held that a partial summary judgment is “final” and thus appealable when the trial court makes the determination required by the Rule requiring only such language in the summary judgment as to show that the trial court was aware Rule 54(b), I.R.C.P., required a finding that there is no just reason for delay and that it made such a determination. Athletic Round Table, Inc., v. Merrill, 98 Idaho 852, 574 P.2d 540 (1978).

The judgment of April 19, 1978, was a “partial” summary judgment since at that time there was a yet unresolved counterclaim. However, the judgment provides, among other things, both a finding of no just reason for delay and an order that the judgment be entered. We hold that this language satisfies the requirements of Rule 54(b), I.R.C.P., and consequently was a final appealable judgment as defined by Rule 11(a)(2), Idaho Appellate Rules. It follows that the time for appeal commenced to run from April 19, 1978. Appellant having failed to file any post-judgment “tolling” motion as provided by Rule 14, I.A.R., and having failed to file this appeal within the time permitted by that Rule, respondents’ motion for dismissal must be granted. It is unnecessary to consider other questions presented at the hearing on the merits. Appeal dismissed. Costs to respondents.

DONALDSON, C. J., SHEPARD, J., and MAYNARD, J. Pro Tem., concur.