Denney v. City of Richland

FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
IN CLERK’S OFFICE MAY 7, 2020
SUPREME COURT, STATE OF WASHINGTON
MAY 7, 2020
SUSAN L. CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
CHRISTOPHER DENNEY, )
) No. 97494-2
Petitioner, )
)
v. ) En Banc
)
CITY OF RICHLAND, )
)
Respondent. ) Filed May 7, 2020
_______________________________________)
MADSEN, J.—The RAPs direct a party seeking review of a final judgment to
appeal within 30 days, regardless of whether the judgment reserves for future
determination an award of attorney fees or costs. RAP 2.2(a)(1), 5.2(a). We are asked
whether a summary judgment order resolving all substantive legal claims constitutes a
“final judgment” pursuant to RAP 2.2(a)(1). We hold that it does.
BACKGROUND
Christopher Denney, a firefighter, sued the city of Richland in 2017. He argued
that the city violated the Public Records Act, ch. 42.56 RCW, by withholding two
investigative complaints Denney made about on-the-job harassment and discrimination.
No. 97494-2
In 2019, both Denney and the city filed cross motions for summary judgment. After a
hearing, the trial court granted summary judgment for the city and denied Denney’s
motion, finding the requested records were properly exempted from disclosure as
attorney work product. The order states, in relevant part:
Based on the foregoing IT IS ORDERED, ADJUDGED, AND
DECREED:
1. Defendant City of Richland’s motion for summary judgment is
GRANTED;
2. Plaintiff Mr. Denney’s motion for summary judgment is
DENIED;
3. All claims and causes of action alleged by plaintiff in this matter
are DISMISSED WITH PREJUDICE; and
[4.] Defendant City of Richland is the prevailing party herein and
may present judgment accordingly.
Appellant’s Mot. for Discr. Review, App. 6. The order is dated February 12, 2019. The
city promptly filed its notice of presentation three days later. On March 14, 2019, the
final judgment was entered against Denney, awarding taxable costs to the city for a total
judgment of $200. Denney filed his notice of appeal on April 1, 2019, two weeks after
the entry of final judgment and more than 30 days after the summary judgment and
dismissal order.
Because Denney filed his appeal more than 30 days after the summary judgment
order was issued, the Court of Appeals sua sponte set the matter for dismissal as
untimely. Denney argued the 30-day limitation ran from the March 14 judgment;
alternatively, he asked for an extension of time based on the extraordinary circumstance
that the February 12 order was misleading. The Court of Appeals commissioner
disagreed. She noted that under RAP 2.2(a)(1), “[t]he language Mr. Denney quotes from
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the [trial court’s] Order was not misleading because it clearly refers to entry of a
judgment in favor of the City, as the ‘prevailing party.’ The requested judgment is for a
judgment that awards specific amounts as costs to the City.” Id., App. at 3 (ruling
terminating review, No. 36720-7-III (May 17, 2019)). The commissioner dismissed
Denney’s appeal, which Denney then moved to modify. Chief Judge Lawrence-Berry
denied the motion in part, upholding the commissioner’s ruling dismissing Denney’s
appeal of the February 12 order and granting the motion as to the appeal of the March 14
final judgment on the “limited scope of the [$200] cost award.” Id., App. at 1 (Order
Granting in Part and Denying in Part Mot. to Modify Comm’r’s Ruling, No. 36720-7-III
(July 17, 2019)). Denney moved for discretionary review here, which we granted.
ANALYSIS
To determine the timeliness of Denney’s appeal we must interpret our rules of
appellate procedure. The interpretation of a court rule presents a question of law that we
review de novo. State v. Stump, 185 Wash. 2d 454, 458, 374 P.3d 89 (2016) (citing State v.
Engel, 166 Wash. 2d 572, 576, 210 P.3d 1007 (2009); Jafar v. Webb, 177 Wash. 2d 520, 526,
303 P.3d 1042 (2013)). When we interpret a court rule, similar to when we interpret a
statute, we strive to determine and carry out the drafter’s intent. Dep’t of Ecology v.
Campbell & Gwinn, LLC, 146 Wash. 2d 1, 9-10, 43 P.3d 4 (2002) (citing State v. J.M., 144
Wash. 2d 472, 480, 28 P.3d 720 (2001)). We determine that intent by examining the rule’s
plain language, not in isolation but in context, considering related provisions, and in light
of the statutory or rule-making scheme as a whole. State v. Conover, 183 Wash. 2d 706,
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No. 97494-2
711, 355 P.3d 1093 (2015) (quoting Ass’n of Wash. Spirits & Wine Distribs. v. Wash.
State Liquor Control Bd., 182 Wash. 2d 342, 350, 340 P.3d 849 (2015)).
Appealing a final order under the RAPs
RAP 2.2(a)(1) allows a party to appeal a “final judgment entered in any action or
proceeding, regardless of whether the judgment reserves for future determination an
award of attorney fees or costs.” RAP 5.2(a)(1) requires a notice of appeal to be filed no
later than “30 days after the entry of the decision of the trial court that the party filing the
notice wants reviewed.”
Definitions included in the appellate rules are controlling, but in their absence, this
court will give a term its plain and ordinary meaning ascertained from a standard
dictionary. State v. Taylor, 150 Wash. 2d 599, 602, 80 P.3d 605 (2003) (citing State v.
Watson, 146 Wash. 2d 947, 954, 51 P.3d 66 (2002)). The term “final judgment” is not
defined in the RAPs. Id. We have looked to Black’s Law Dictionary for a definition:
“‘A court’s last action that settles the rights of the parties and disposes of all issues in
controversy, except for the award of costs (and, sometimes, attorney’s fees) and
enforcement of the judgment.’” Id. (quoting BLACK’S LAW DICTIONARY 847 (7th ed.
1999)); 1 accord Wachovia SBA Lending, Inc. v. Kraft, 165 Wash. 2d 481, 492, 200 P.3d 683
(2009). We have also relied on Webster’s Third New International Dictionary: a final
judgment is “‘a judgment . . . that eliminates the litigation between the parties on the
merits and leaves nothing for the inferior court to do in case of an affirmance except to
1
The most recent edition of Black’s provides the same definition. See BLACK’S LAW
DICTIONARY 1008 (11th ed. 2019).
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No. 97494-2
execute the judgment.’” In re Pers. Restraint of Skylstad, 160 Wash. 2d 944, 949, 162 P.3d
413 (2007) (alteration in original) (quoting WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY 851 (2002)). Thus, this court has generally defined a final judgment in
terms of its effect on the underlying cause of action. See also In re Dependency of A.G.,
127 Wash. App. 801, 808, 112 P.3d 588 (2005) (it is the “practical effect of an order which
determines its appealability”). That is, whether it resolved the merits of a party’s legal
claims. See Taylor, 150 Wash. 2d at 602 (quoting BLACK’S, supra, at 847 (7th ed. 1999));
Skylstad, 160 Wash. 2d at 949 (quoting WEBSTER’S, supra, at 851).
The definitional focus on the effect of a judgment is borne out in our appellate
rules. See 21 SCOTT J. HORENSTEIN, WASHINGTON PRACTICE: FAMILY AND COMMUNITY
PROPERTY LAW § 51:7, at 250 (2d ed. 2015) (stating that judgments listed in RAP 2.2 are
all characterized by a measure of finality). As stated above, a party may appeal within 30
days a “final judgment . . . , regardless of whether the judgment reserves for future
determination an award of attorney fees or costs.” RAP 2.2(a)(1); RAP 5.2(a). RAP
2.2(a)(1) exempts attorney fees from an otherwise final judgment on the merits.
Dovetailing RAP 2.2, RAP 2.4(b) explains that “[a] timely notice of appeal of a
trial court decision relating to attorney fees and costs does not bring up for review a
decision previously entered in the action that is otherwise appealable under rule 2.2(a)
unless a timely notice of appeal has been filed to seek review of the previous decision.”
An “appeal from an attorney fee decision does not bring up for review a separate
judgment on the merits unless a timely notice of appeal is filed from that judgment.”
Bushong v. Wilsbach, 151 Wash. App. 373, 377, 213 P.3d 42 (2009). Under RAP 2.4(g),
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No. 97494-2
an appeal from the judgment on the merits also brings up for review an award of attorney
fees by the trial court, entered after the appellate court has accepted review. The rule
eliminates the need to file a second, separate notice of appeal from an award of attorney
fees. 2A KARL B. TEGLAND, WASHINGTON PRACTICE: RULES PRACTICE RAP 2.4, at
198 (8th ed. 2014).
Read together, RAPs 2.2 and 2.4 differentiate between appeals on the merits of a
legal claim and on its costs. A party who wishes to appeal both need not appeal
separately. A party may file a notice on the merits of a case and so bring along a later
cost judgment, while the reverse brings up only attorney fees and costs. Bushong, 151
Wash. App. at 376.
The drafter’s comments for RAPs 2.2 and 2.4 reinforce the distinction between
finality on the merits and finality of costs. In 2002, RAP 2.2 was amended, and the
drafters explained that the rule “makes clear that a party may, and indeed should if review
on the merits is desired, appeal from a final judgment whether or not an award of attorney
fees or costs is reserved for future determination.” 2A TEGLAND, supra, RAP 2.2, at 133
(8th ed. 2014). 2 This amendment resolved a “long-standing debate about whether an
appeal must be delayed pending a decision on costs or attorney fees.” Id. The comment
accompanying a corresponding amendment to RAP 2.4 explains the drafters’ intent that
2
The statutory costs awarded in this case were not the costs contemplated by RAP 2.2 because
there is no future determination about the amount of these costs. Thus, here, the entire order was
appealable upon the judge’s signature.
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No. 97494-2
the time limit for an appeal runs from entry of the final judgment and is not tolled until
issues of costs and attorney fees are resolved. Id.
As RAPs 2.2 and 2.4 demonstrate, our appellate rules contemplate various final
judgments that may be appealed. “A judgment may be final even though further steps in
the case are contemplated or become necessary.” 2A TEGLAND, supra, RAP 2.2, at 100
(8th ed. 2014); see also Rhodes v. D&D Enters., Inc., 16 Wash. App. 175, 176-78, 554 P.2d
390 (1976) (order construing real estate contract and directing conveyance of part of a
land parcel was held to be final judgment even though specific part of land was left to be
determined by negotiation or referee). Washington Practice sums up the practical lesson
for appellants—“counsel should appeal from the judgment on the merits, even if the issue
of attorney fees is still pending.” 2A TEGLAND, supra, RAP 2.4, at 198 (8th ed. 2014).
Accordingly, Washington courts have held a summary judgment order to be a final
judgment despite later entry of a money judgment. In Carrara, LLC v. Ron & E
Enterprises, Inc., a trial court issued a summary judgment order stating:
It is hereby ORDERED, ADJUDGED, AND DECREED that:
1. Defendant Ron & E Enterprises, Inc.’s Motion for Summary Judgment of
All Claims is GRANTED.
2. Plaintiff Carrara, LLC’s claims against Defendant Ron & E Enterprises,
Inc. are dismissed with prejudice.
137 Wash. App. 822, 826, 155 P.3d 161 (2007). The order was dated July 8, 2005. Id.
The trial court then issued an order granting attorney fees on August 9, 2005, and later
entered a judgment on September 22, 2005. Id. at 824. Carrara filed a notice of appeal
for both the summary judgment and attorney fees and costs orders on October 21, 2005.
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Id. at 824-25. Ron & E Enterprises moved to dismiss the notice as untimely filed more
than three months after the July summary judgment order. Id. at 825. The court
commissioner denied the motion to dismiss; Ron & E moved to modify, and a panel of
judges denied.
On appeal, the Carrara court reviewed our appellate rules and Washington
Practice’s caution that counsel should appeal from a judgment on the merits even if
attorney fees are yet to be resolved. Id. at 825-26 (quoting 2A KARL B. TEGLAND,
WASHINGTON PRACTICE: RULES PRACTICE RAP 2.4, at 181 (6th ed. 2004)). The court
then held that the July summary judgment order was a “final, dispositive judgment” and
that August 8 was the deadline to appeal that judgment. Id. at 826. Because Carrara did
not file until October 21, its appeal was untimely and it could not “couch the appeal of
the summary judgment order in its appeal of attorney fees.” Id.
A summary judgment order falls within this court’s definition of final judgment.
Under Black’s, an order resolves the rights of both parties when it grants summary
judgment to one party and denies it to another. See BLACK’S, supra, at 847 (7th ed.
1999). Dismissing with prejudice all of a party’s claims with the exception of a
subsequently resolved cost award is anticipated in Black’s and RAP 2.2—both authorities
exempt costs from the requirement that a final order dispose of all issues. Id.; RAP
2.2(a)(1). A summary judgment order fully resolving all legal claims can constitute a
final decision beginning the 30-day appeal deadline.
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Appealing a final order under the Civil Rules
Central to Denney’s argument is the applicability of RAP 2.2(a)(1). The Civil
Rules direct the attorney for the prevailing party to “prepare and present a proposed form
of order or judgment not later than 15 days after the entry of the verdict or decision.” CR
54(e). According to Denney, the summary judgment order here did not limit the March
CR 54 judgment to fees and costs, and thus, Denny contends, RAP 2.2(a)(1) does not
apply. Though we find no such specificity requirement in the RAPs or in any other
relevant authority, we are mindful of the guidance CR 54 provides to trial courts and
parties. In Department of Labor & Industries v. City of Kennewick, we stated that
“As a practical matter, the bar should not have to act as soothsayers
to determine when a written trial court opinion or decision might be a final
judgment. For the sake of uniformity, the better practice is to follow CR
54; the prevailing party should submit a proposed judgment, decree or
order, with appropriate notice and service upon the opposing party. All
parties are then aware of the status of the proceeding and can consider the
applicability of postjudgment motions such as motions for reconsideration,
CR 59(b), appeals under RAP 2.2, and other time-limited procedures
hinging upon entry of judgment.”
99 Wash. 2d 225, 231, 661 P.2d 133 (1983) (quoting Dep’t of Labor & Indus. v. City of
Kennewick, 31 Wash. App. 777, 783, 644 P.2d 1196 (1982), rev’d, 99 Wash. 2d 225). While
this comment on CR 54 and best practice is dicta, its point is well taken. CR 54’s process
promotes uniformity and lessens the potential for confusion stemming from multiple final
judgments. In this case, CR 54’s interaction with our RAPs created the type of confusion
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No. 97494-2
these rules sought to avoid. The parties here properly followed CR 54, and Denney relied
on the date of this final judgment when filing his notice of appeal. 3
Though our appellate rules clearly delineate between final judgments on the merits
and final judgments on costs, the rules also permit appellate courts to alter the time within
which a party must appeal. See RAP 2.2(a)(1), 2.4(b), (g); RAP 18.8(a), (b) (an appellate
court may waive or alter the provisions of any of these rules in order to serve the ends of
justice in extraordinary circumstances and to prevent a miscarriage of justice). In light of
the confusion introduced into our appellate rules by CR 54, we therefore agree with
Denney that the circumstances of his case are sufficiently extraordinary that treating his
appeal as untimely would be a miscarriage of justice. RAP 18.8(b). Extraordinary
circumstances include, among other things, excusable error in interpreting the rules.
Shumway v. Payne, 136 Wash. 2d 383, 395, 964 P.2d 349 (1998). Denney’s counsel
interpreted the March judgment, entered in accordance with CR 54, to be the final
judgment from which to appeal, waiting for presentation of the proposed order and
3
We reject Denney’s assertion that CR 54 effectively creates a state version of the federal
“separate document requirement.” Suppl. Br. of Appellant at 11-12. Federal Rule of Civil
Procedure (FRCP) 58(a) requires that every judgment be set out in a separate document. A
separate judgment filing ensures finality and is required to protect rights to a timely appeal.
Sanders v. Clemco Indus., 862 F.2d 161, 168 (8th Cir. 1988). FRCP 58(a) was intended to avoid
the inequities that were inherent when a party appealed from a document or docket entry
appearing to be a final judgment only to have the appellate court later announce an earlier
document or entry had been the judgment and dismiss the appeal as untimely. Bankers Trust Co.
v. Mallis, 435 U.S. 381, 385, 98 S. Ct. 1117, 55 L. Ed. 2d 357 (1978). Washington’s CR 54
directs the attorney for the prevailing party to prepare and present a proposed form of order or
judgment not later than 15 days after the entry of a verdict or decision, and to give 5 days’ notice
of presentation and serve a copy of the proposal to opposing counsel. CR 54(e), (f)(2).
Washington has not adopted FRCP 58. Nor is there any indication in CR 54 or cases interpreting
it that our state rule was intended to parallel FRCP 58. We decline Denney’s invitation to create
a separate document requirement in this case.
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appealing after the judgment was signed. Denney’s error in interpreting CR 54 and the
RAPs is excusable, justifying an extension of time to file his appeal. RAP 18.8(b).
Nevertheless, we caution future, similarly situated appellants that our appellate
rules establish the correct procedure on review: a summary judgment order disposing of
all substantive legal issues can constitute a final, appealable judgment regardless of a
subsequent attorney fees award. As Washington Practice advises, “counsel should
appeal from the judgment on the merits, even if the issue of attorney fees is still
pending.” 2A TEGLAND, supra, RAP 2.4, at 198 (8th ed. 2014).
CONCLUSION
A summary judgment order disposing of all claims can constitute a final judgment,
thereby starting the 30-day appeal deadline. RAP 2.2(a), 5.2(a). An appeal of a trial
court decision on the merits brings along a subsequent cost award, but the reverse is not
permitted—a timely appeal of a cost judgment does not bring along review on the merits.
RAP 2.4(b), (g). In this case, the summary judgment order wholly resolved Denney’s
suit on the merits and reserved a cost award for later determination, triggering the
deadline. Denny filed his appeal more than 30 days after the summary judgment and
dismissal order issued; the Court of Appeals dismissed the merits appeal as untimely
while allowing the cost appeal to proceed. We affirm the Court of Appeals on this issue.
However, because Denney’s misinterpretation of the RAPs is an excusable error, we hold
that Denney’s case warrants an extension of time to appeal. We therefore reverse and
remand the case to the Court of Appeals for further proceedings consistent with this
opinion.
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___________________________________
WE CONCUR:
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