Ledcor Industries (usa) Inc., Res/cross-app. v. Starline Windows, Inc., App/cross-res. ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
LEDCOR INDUSTRIES (USA), INC., No. 72992-6-
etal.,
DIVISION ONE
Respondent/
Cross-Appellants,
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v. f/>p
STARLINE WINDOWS, INC., et al., UNPUBLISHED
Appellant/ FILED: July 27. 2015
Cross-Respondents.
Cox, J. - Ledcor Industries (USA) Inc. moves to dismiss this appeal as
untimely. Because Starline Windows Inc. failed to file its notice of appeal within
30 days of the decision entered on July 8, 2014, its appeal of that decision is
untimely. Accordingly, we grant the motion to dismiss this appeal.
MOTION TO DISMISS
Ledcor sued Starline. The court decided the claims between these parties
in a series of summary judgment orders that are the subjects of a linked appeal.1
After the court resolved these claims, both Ledcor and Starline moved for
attorney fees under the terms of their contract. The court denied both motions,
See Ledcor Industries (USA), Inc. v. Starline Windows. Inc., No. 72317-
1-1.
No. 72992-6-1/2
concluding that both parties substantially prevailed. This order was entered on
July 8, 2014.
Ledcor did not appeal the trial court's order on fees. On January 9, 2015,
Starline appealed the trial court's order on attorney fees.
Ledcor moved to dismiss this appeal as untimely. Starline answered the
motion.
Under RAP 18.9(c)(3), this court may dismiss an appeal on a party's
motion if the notice of appeal was not timely filed. RAP 18.8(b) contains the only
exceptions to this rule. Under that rule, this 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."2 This is because "the
desirability of finality of decisions [ordinarily] outweighs the privilege of a litigant
to obtain an extension of time."3
Under RAP 5.2(a), a party must file a notice of appeal within "30 days after
the entry of the decision of the trial court that the party filing the notice wants
reviewed." The date of entry is determined by CR 5(e) and CR 58.4 These rules
establish that the date of entry is the date the signed order is filed with the clerk.
Here, the court's order denying attorney fees, dated July 7, 2014, was filed
with the clerk on July 8, 2014. Thus, Starline had 30 days from the latter date to
file its notice of appeal.
2 RAP 18.8(b).
3ld,
4 RAP 5.2(c).
No. 72992-6-1/3
This record shows that Starline failed to file its notice of appeal of the July
2014 decision until January 9, 2015, six months later. Accordingly, its appeal is
untimely.
Starline argues that its appeal was timely because the court's order failed
to comply with CR 54(f)(2). Specifically, Starline argues that it did not receive "5
days' notice of presentation" or a copy of the proposed order. This argument is
without merit.
CR 54(f)(2) states that "[n]o order or judgment shall be signed or entered
until opposing counsel have been given 5 days' notice of presentation and served
with a copy of the proposed order." Starline argues that the order was void for
failing to comply with CR 54(f)(2), and thus time to file a notice of appeal never
began to run.
This argument is unpersuasive for two reasons. First, Starline fails to cite
any authority indicating that failure to comply with CR 54(f)(2) affects the date
that time begins to run for a notice of appeal under the RAPs. As explained
earlier, time begins to run when the order is entered.5 In this case, that date was
July 8, 2014.
Second, under some circumstances, failure to comply with CR 54(f)(2)
may void an order.6 But if "the complaining party shows no resulting prejudice"
5 RAP 5.2(c); CR 5(e); CR 58.
6 Burton v. Ascol. 105 Wn.2d 344, 352, 715 P.2d 110(1986).
No. 72992-6-1/4
the order is not invalid.7 Here, Starline has failed to allege any prejudice
resulting from its failure to receive five days' notice prior to the entry of the order.
ATTORNEY FEES
Ledcor argues that it is entitled to attorney fees on appeal. Because
Ledcor prevailed in this appeal, we grant its request.
Parties in Washington may recover attorney fees if a statute, contract, or
recognized ground of equity authorizes the award.8 "'A contractual provision for
an award of attorney's fees at trial supports an award of attorney's fees on
appeal under RAP 18.1.'"9
Here, the parties' contract states: "In the event that. . . litigation is
instituted to . . . adjudicate any question(s) arising under this Agreement, the
prevailing party shall be entitled to its actual attorneys' fees and all costs incurred
in connection therewith . . . ."10
Ledcor prevailed in this appeal by successfully moving to dismiss. Thus,
Ledcor is entitled to an award of attorney fees on appeal according to the parties'
contract.
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8 LK Operating. LLC v. Collection Grp.. LLC. 181 Wn.2d 117, 123, 330
P.3d 190 (2014).
9 Thompson v. Lennox. 151 Wn. App. 479, 491, 212 P.3d 597 (2009)
(quoting W. Coast Stationary Eng'rs Welfare Fund v. Citv of Kennewick. 39 Wn.
App. 466, 477, 694 P.2d 1101 (1985)).
10
Clerk's Papers at 164.
No. 72992-6-1/5
We grant Ledcor's motion to dismiss Starline's appeal as untimely. We
also grant Ledcor's request for fees on appeal.
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WE CONCUR:
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