Schaefco, Inc. v. Columbia River Gorge Commission , 121 Wash. 2d 366 ( 1993 )

Durham, J.

Appellants, Schaefco, Inc. and Wynco, Inc. (Schaefco), wish to develop property which is subject to the Columbia River Gorge National Scenic Area Act, 16 U.S.C. § 544 (Gorge Act). Their proposal to develop one lot in an intended larger development was rejected by the Columbia River Gorge Commission (Commission). The Commission was affirmed on appeal by the Clark County Superior Court. Because Schaefco has failed to timely perfect its appeal to this court, we dismiss.

On July 2,1991, the Superior Court entered its final order affirming the Commission's decision. Schaefco moved for reconsideration of this order pursuant to CR 59. This rule requires that a motion for reconsideration "shall be served and filed not later than 10 days after the entry of the judgment." (Italics ours.) CR 59(b). Although Schaefco filed its motion for reconsideration with the Superior Court on July 12, 1991, it did not serve the Commission with this motion until July 16, 1991.

The Superior Court denied the motion for reconsideration on August 16,1991. Schaefco then filed a notice of appeal with the Court of Appeals on September 9, 1991. At the appellate court, the Commission immediately filed a motion to dismiss because the appeal was not filed within the applicable 30-day time limit. The Commission argued that Schaefco's notice of appeal dated back to the Superior Court's July 2 order because the motion for reconsideration was untimely, and therefore did not extend the 30-day time period for filing a notice of appeal. The commissioner for the Court of Appeals ruled in the Commission's favor, but was later modified by the Court of Appeals without explanation. The Court of Appeals then certified the appeal to this court.

The Commission argues that we lack jurisdiction to hear this case because the notice of appeal was untimely. Schaefco counters that the issue was decided below, thereby curing any procedural deficiencies.

A party is allowed 30 days in which to file a notice of appeal. RAP 5.2(a). This 30-day time limit can be extended due to some specific and narrowly defined circumstances (none of which apply here). RAP 5.2(a). It can also be prolonged by the filing of "certain timely posttrial motions", including a motion for reconsideration. (Italics ours.) RAP 5.2(a), (e). A motion for reconsideration is timely only where a party both files and serves the motion within 10 days. CR 59(b). A trial court may not extend the time period for fifing a motion for reconsideration. CR 6(b); Moore v. Wentz, 11 Wn. App. 796, 799, 525 P.2d 290 (1974).

Here, Schaefco filed the motion for reconsideration within 10 days of the Superior Court's July 2 order. However, it did not serve the motion on the Commission until July 16 — 4 days past the allowable time limit. Because Schaefco's motion for reconsideration was not timely, it did not extend the 30-day limit for filing the notice of appeal. As such, the notice of appeal Schaefco filed on September 9 was well outside the 30-day time limit.

When an appellant fails to timely perfect an appeal, the disposition of the case is governed by RAP 18.8(b). State v. Ashbaugh, 90 Wn.2d 432, 438, 583 P.2d 1206 (1978). That rule states:

The appellate court will only in extraordinary circumstances and to prevent a gross miscarriage of justice extend the time within which a party must file a notice of appeal .... The appellate court will ordinarily hold that the desirability of finality of decisions outweighs the privilege of a litigant to obtain an extension of time under this section.

RAP 18.8(b). Schaefco has not provided sufficient excuse for its failure to file a timely notice of appeal, nor has it demonstrated sound reasons to abandon the preference for finality.¹

We recognize that Schaefco raises many important issues, including an equal protection claim arising from the Gorge Act's failure to designate Washougal, Washington, as an urban area. However, it would be improper to consider these questions given the procedural failures of this case. See RAP 18.8(b), 18.9(b); Ashbaugh, at 438. Schaefco's appeal is dismissed.

Andersen, C.J., and Utter, Brachtenbach, Smith, and Madsen, JJ., concur.

1 Schaefco's argument that the procedural question was decided below is inapposite. When a case is transferred to this court, if the appeal "has not been properly perfected, this court upon transfer will consider such a defect and take appropriate action." Glass v. Windsor Nav. Co., 81 Wn.2d 726, 727, 504 P.2d 1135 (1973).