Jeff Lokey v. Mike Irwin

IN THE SUPREME COURT, STATE OF WYOMING
2016 WY 50
APRIL TERM, A.D. 2016
May 17, 2016
JEFF LOKEY,
Appellant
(Defendant),
v. S-15-0233
MIKE IRWIN,
Appellee
(Plaintiff).
Appeal from the District Court of Sublette County
The Honorable Marvin L. Tyler, Judge
Representing Appellant:
Gerard R. Bosch and M. Alison Floyd of Law Offices of Jerry Bosch, LLC,
Wilson, Wyoming. Argument by Mr. Bosch.
Representing Appellee:
Tom C. Toner of Yonkee & Toner, LLP, Sheridan, Wyoming.
Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
FOX, J., delivers the opinion of the Court; BURKE, C.J., files a concurring in part and
dissenting in part opinion.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
FOX, Justice.
[¶1] The district court entered a default judgment against the appellant, Jeff Lokey, that
included a provision allowing the parties ten days to file objections to the judgment. Mr.
Lokey filed an objection, which the court denied. Mr. Lokey then appealed the court’s
order denying his objections. We find that we lack jurisdiction to decide Mr. Lokey’s
appeal, and we therefore dismiss, though we will award attorney fees incurred in this
appeal.
ISSUES
[¶2] 1. Does this Court have jurisdiction to entertain Mr. Lokey’s appeal, or must we
dismiss because Mr. Lokey did not timely appeal an appealable order?
2. Does this Court have jurisdiction to award, and is appellee entitled to recover,
attorney fees incurred as a result of this appeal based on the contract which was the
subject of the underlying action?
FACTS
[¶3] The parties were business partners in two Wyoming businesses, Summit
Investments, a general partnership, and Rocky Mountain Wash, LLC. In October 2009,
they entered into an agreement to dissolve their shared business ventures. Each party was
to receive certain property owned by those businesses, along with the corresponding debt.
The agreement also provided for payments to be made by Mike Irwin, the appellee, to
Mr. Lokey. On December 8, 2014, Mr. Irwin filed a complaint against Mr. Lokey
alleging that Mr. Lokey had neglected to service the debts on property granted to him
through the dissolution agreement, and that, as a result, Mr. Irwin had been damaged.
Irwin requested that the district court enter a declaratory judgment relieving him of his
obligations under the agreement, arguing that Mr. Lokey had materially breached its
terms. Mr. Lokey was served with the complaint in California on December 18, 2014,
but did not answer within thirty days as required by W.R.C.P. 12(a). On January 22,
2015, Mr. Irwin filed a request for an entry of default alleging that Mr. Lokey had not
answered or otherwise pled as required. The clerk of the district court entered the default
on the same day. Mr. Irwin then moved for a default judgment in accordance with
W.R.C.P. 55(b) and requested a hearing. The district court set the hearing on the default
judgment for March 12, 2015. On March 11, 2015, Mr. Lokey’s attorney entered an
appearance and moved for a continuance via fax filing. Just before the hearing on the
morning of March 12, 2015, Mr. Lokey filed a number of motions, including a motion to
set aside the entry of default.
[¶4] The district court proceeded with the March 12, 2015 hearing, first allowing
counsel to argue Mr. Lokey’s motion to continue, which it denied, and then proceeding to
1
hear Mr. Irwin’s motion for a default judgment. The court entered its default judgment
on April 27, 2015, declaring that Mr. Lokey had materially and substantially breached the
dissolution agreement, and that, as a result, Mr. Irwin was relieved from performing any
further obligations under the agreement.1 The last paragraph of the judgment provided:
THE COURT HAS PREPARED THIS ORDER. IN THE
EVENT THAT ANY PARTY OBJECTS TO THE FORM
AND/OR CONTENT OF THIS ORDER, SUCH
OBJECTING PARTY SHALL HAVE TEN (10) DAYS
TO FILE AND SERVE ANY OBJECTIONS, ALONG
WITH AN ALTERNATE FORM OF ORDER. THE
COURT RESERVES THE RIGHT TO RULE UPON
ANY OBJECTIONS FILED BY ANY PARTY WITH,
OR WITHOUT, A HEARING. FAILURE TO FILE
AND SERVE ANY OBJECTIONS, ALONG WITH AN
ALTERNATE FORM OF ORDER, WITHIN TEN (10)
DAYS FROM THE DATE HEREOF SHALL BE
DEEMED A COMPLETE WAIVER OF ANY AND ALL
OBJECTIONS AS TO FORM OR CONTENT OF THIS
ORDER.
(Capitalization and emphasis in original.) On May 11, 2015, Mr. Lokey filed
Defendant’s Objections to Entry of Default Judgment with Findings of Facts and
Conclusions of Law Dated April 27, 2015, which the district court denied on June 24,
2015. The court’s order denying Mr. Lokey’s objections was cursory and provided no
substantive discussion of the issues presented, instead stating: “The conclusions of law
made by the Court [in the default judgment] are appropriate based on the findings made
within the Order.” Mr. Lokey filed his notice of appeal on July 23, 2015, designating the
district court’s order denying his objections as the decision from which he was appealing.
DISCUSSION
I. Does this Court have jurisdiction to entertain Mr. Lokey’s appeal, or must we
dismiss because Mr. Lokey did not timely appeal an appealable order?
[¶5] Mr. Lokey presents various issues on appeal. However, this Court must first be
satisfied that it has jurisdiction to entertain the appeal. Harmon v. Star Valley Med. Ctr.,
2014 WY 90, ¶ 14, 331 P.3d 1174, 1178 (Wyo. 2014); Plymale v. Donnelly, 2006 WY 3,
¶ 4, 125 P.3d 1022, 1023 (Wyo. 2006). “We pursue that inquiry de novo because the
limits placed upon the exercise of our appellate powers are matters of law.” Waldron v.
Waldron, 2015 WY 64, ¶ 11, 349 P.3d 974, 977 (Wyo. 2015) (citing In re Estate of
1
The court also denied all of Mr. Lokey’s motions, including his motion to set aside the default.
2
Nielsen, 2011 WY 71, ¶ 11, 252 P.3d 958, 961 (Wyo. 2011)). We find that we lack
jurisdiction to consider Mr. Lokey’s appeal and must dismiss.
[¶6] The Wyoming Rules of Appellate Procedure set forth the requirements to perfect
an appeal. Rule 2.07 declares that a notice of appeal must “[i]dentify the judgment or
appealable order” from which an appeal is taken. An appealable order is defined as “[a]n
order affecting a substantial right in an action, when such order, in effect, determines the
action and prevents a judgment[.]” W.R.A.P. 1.05(a).
We have held that an appealable order under Rule 1.05(a) has
“three necessary characteristics. . . . It must affect a
substantial right, determine the merits of the controversy, and
resolve all outstanding issues.” In re E.R.C.K., 2013 WY
160, ¶ 28, 314 P.3d 1170, 1176 (Wyo. 2013) (quoting In re
KRA, 2004 WY 18, ¶ 10, 85 P.3d 432, 436 (Wyo. 2004)).
Whether an order is final and appealable is a question of law,
which we decide de novo . . . . Bourke v. Grey Wolf Drilling
Co., LP, 2013 WY 93, ¶ 15, 305 P.3d 1164, 1167 (Wyo.
2013) (citing In re MN, 2007 WY 189, ¶ 4, 171 P.3d 1077,
1080 (Wyo. 2007)).
Waldron, 2015 WY 64, ¶ 14, 349 P.3d at 977-78 (quoting Estate of Dahlke ex rel. Jubie
v. Dahlke, 2014 WY 29, ¶ 31, 319 P.3d 116, 124 (Wyo. 2014)). In this case, the
appealable order was the default judgment. It affected the substantial rights of the
parties, determined the merits of the controversy, and resolved all outstanding issues,
leaving nothing for future consideration. Pub. Serv. Comm’n v. Lower Valley Power &
Light, Inc., 608 P.2d 660, 661 (Wyo. 1980); W.R.C.P. 54(a) (A judgment “is the final
determination of the rights of the parties in action.”). Mr. Lokey, however, did not appeal
from the district court’s default judgment. Instead, he appealed from the court’s order
denying his objections. This was not an appealable order as defined by the rules and this
Court, as it did nothing more than affirm the court’s prior ruling. The error, if any, lies in
the default judgment, not in the decision to deny the objections. In In re GLP, we
rejected an untimely appeal of a non-appealable order denying a motion to alter or
amend, saying:
In a number of cases, this Court has held that “[a]n order
denying a motion for a new trial is not an appealable order.”
Rutledge v. Vonfeldt, 564 P.2d 350, 351 (Wyo. 1977); Sun
Land & Cattle Co. v. Brown, 387 P.2d 1004, 1006 (Wyo.
1964). This is because “[e]rror lies to the judgment, but not
to the decision of the motion; though that decision may be
made a ground for the reversal of the judgment.” Mitter v.
Black Diamond Coal Co., 193 P. 520, 521, 27 Wyo. 72 (Wyo.
3
1920) (quoting Young v. Shallenberger, 53 Ohio St.
291[, 301], 41 N.E. 518[, 521 (1895)]. The same rule applies
to an order denying a motion to alter or amend. Parker v.
Kahin, 758 P.2d 570, 570-71 (Wyo. 1988). Because
Appellant’s notice of appeal does not identify an appealable
order, this Court finds that this appeal, to the extent it seeks to
challenge the denial of the motion to alter or amend, must be
dismissed. Scott v. Sutphin, 2005 WY 38, 109 P.3d 520
(Wyo. 2005).
2007 WY 141, ¶ 3, 166 P.3d 1284, 1285 (Wyo. 2007). Similarly, Mr. Lokey’s notice of
appeal does not identify an appealable order and must be dismissed. See Evans v. Moyer,
2012 WY 111, ¶ 18, 282 P.3d 1203, 1209 (Wyo. 2012) (“[T]he notice of appeal only
perfects an appeal of the order(s) identified in the notice.”).
[¶7] Even if Mr. Lokey had identified the default judgment as the order appealed from,
the notice was too late. The district court entered its default judgment on April 27, 2015.
“An appeal from a trial court to an appellate court shall be taken by filing the notice of
appeal . . . within 30 days from entry of the appealable order[.]” W.R.A.P. 2.01(a). Mr.
Lokey did not file his notice of appeal until July 23, 2015, clearly outside of the thirty-
day deadline.
[¶8] The time for filing a notice of appeal can be tolled in some circumstances.
W.R.A.P. 2.02(a).
The time for appeal in a civil case ceases to run as to all
parties when a party timely files [] a motion for judgment
under Rule 50(b), Wyo. R. Civ. P.; a motion to amend
or make additional findings of fact under Rule 52(b),
Wyo. R. Civ. P. . . .; a motion to alter or amend the judgment
under Rule 59, Wyo. R. Civ. P., or a motion for a new trial
under Rule 59, Wyo. R. Civ. P.
W.R.A.P. 2.02(a). The time for filing a notice of appeal is not tolled, however, when the
title or content of a post-judgment filing reflects that it is nothing more than a request that
the court reconsider a previously entered judgment or appealable order. Waldron, 2015
WY 64, ¶ 11, 349 P.3d at 977. “When a post-judgment motion is not expressly
denominated as a request for reconsideration, this Court will evaluate its substance to
determine what effect it may have on appellate deadlines.” Id. at ¶ 13, 349 P.3d at 977.
We therefore look to the substance of Mr. Lokey’s post-judgment filing to determine
whether the time for filing a notice of appeal could be tolled under W.R.A.P. 2.02.
4
[¶9] Wyoming Rule of Civil Procedure 50(b) provides that a party may renew a motion
for a judgment as a matter of law previously made during the course of a jury trial. This
was not a jury trial, but a hearing on a motion for a default judgment. As a result, Rule
50(b) does not apply. Id. at ¶ 17, 349 P.3d at 978. Wyoming Rule of Civil Procedure
52(b) allows a party to move for an amendment to a court’s special findings or to request
additional special findings after a judgment has been entered. In this case, the district
court did not make special findings, nor did Mr. Lokey request that such findings be
made. Rule 52(b) therefore fails to save Mr. Lokey from the thirty-day deadline to file
his notice of appeal.2
[¶10] Wyoming Rule of Civil Procedure 59 likewise fails to toll the time for filing an
appeal in this case. Mr. Lokey’s filing was not a motion for a new trial under Rule 59(a)
because no trial was held. The parties presented no evidence at the hearing, and each
relied only upon oral argument from counsel. Rule 59(a) “presupposes that the district
court has conducted a trial,” which did not occur here. Waldron, 2015 WY 64, ¶ 19, 349
P.3d at 978. Thus, Mr. Lokey’s objection cannot be characterized as a motion for a new
trial.3 See id. (“[W]here an appealable order or judgment is issued without a trial, a
motion for a new trial is an inappropriate means for seeking relief from that order of
judgment.”).
[¶11] Finally, a motion cannot be characterized as one under Rule 59(e)
unless it is based on legal issues derived from an intervening
change of controlling law, factual issues arising from newly
discovered evidence that was not previously available, or
arguments which could not have been put before the district
court prior to its ruling. No matter what it purported to be, it
is not a proper Rule 59(e) motion if it amounts to an attempt
to address factual or legal issues that should have been
addressed earlier or that were already addressed and decided.
Id. at ¶ 20, 349 P.3d at 978-79 (citations omitted). Mr. Lokey’s objections did not
identify an intervening change of law, nor did they allege the discovery of new evidence
pertinent to the district court’s decision. Instead, Mr. Lokey submitted twenty-one pages
of argument advancing issues that were either already decided by the district court in its
default judgment or that should have been addressed earlier. In essence, Mr. Lokey’s
objections are nothing more than a post-judgment motion for reconsideration, which this
Court has declared a nullity. Plymale, 2006 WY 3, ¶ 5, 125 P.3d at 1024. Mr. Lokey’s
objections did not toll the time for filing a notice of appeal under W.R.A.P. 2.02. Even if
Mr. Lokey had appealed the appropriate order, the default judgment, his appeal would
2
In his reply brief, Mr. Lokey concedes that he did not file a motion pursuant to Rule 52(b).
3
Mr. Lokey also concedes that he did not file a motion for a new trial under Rule 59(a).
5
have been untimely and we would be without jurisdiction to consider it. “[T]he timely
filing of a notice of appeal is jurisdictional.” Paxton Res., L.L.C. v. Brannaman, 2004
WY 93, ¶ 15, 95 P.3d 796, 801 (Wyo. 2004); see also W.R.A.P. 1.03(a); Tyler J. Garrett,
Anatomy of a Wyoming Appeal: A Practitioner’s Guide for Civil Cases, 16 Wyo. L. Rev.
139, 142-148 (2016). If we recognized a special class of “tentative decisions,” we would
only create a state of limbo that would result in confusion for courts and parties. “To be
effective, judicial administration must not be leaden-footed.” Cobbledick v. United
States, 309 U.S. 323, 325, 60 S. Ct. 540, 541, 84 L. Ed. 783 (1940).
[¶12] Mr. Lokey argues that he reasonably relied on the district court’s order permitting
him to file objections within ten days of the default judgment, and equity requires that we
allow his appeal to go forward despite its untimeliness. Federal cases have occasionally
recognized the “unique circumstances” doctrine, which equitably tolls the time for filing
a notice of appeal when a party relies, to its detriment, on a district court’s order that is
contrary to the rules of civil procedure. Eady v. Foerder, 381 F.2d 980, 981 (7th Cir.
1967). However, the United States Supreme Court explicitly overruled this doctrine in
Bowles v. Russell, where it ruled the “unique circumstances” doctrine to be “illegitimate.”
551 U.S. 205, 214, 127 S. Ct. 2360, 2366, 168 L. Ed. 2d 96 (2007). While this Court is not
bound by the procedural rulings of the United States Supreme Court,4 we have
consistently held, in line with the United States Supreme Court’s Bowles decision, that
the time for appeal cannot be tolled when a district court takes actions that are not
authorized by the rules of civil procedure. In Merchant v. Gray, 2007 WY 208, ¶¶ 8-9,
173 P.3d 410, 412-13 (Wyo. 2007), we held that a district court had no authority to
extend the deadline to file a motion for a new trial, and that a party’s reliance on the
district court’s extension did not toll the time for filing an appeal. We held similarly in
Miller v. Murdock, 788 P.2d 614, 616-17 (Wyo. 1990), and explicitly declined to extend
the “unique circumstances” doctrine to Wyoming cases.
[¶13] The district court’s default judgment finally determined the parties’ rights.
Thereafter, the district court only had jurisdiction to decide appropriate post-judgment
motions authorized by the rules. See 49 C.J.S. Judgments § 358 (updated April 2016);
see also Ultra Res., Inc. v. Hartman, 2015 WY 40, ¶ 14, 346 P.3d 880, 887 (Wyo. 2015)
(the inherent power of a district court to enforce its own orders is limited, and a court
must “stay true to the earlier judgment”); State v. Meier, 440 N.W.2d 700, 702 (N.D.
1989) (“Generally, when a judgment has become final, the trial court loses jurisdiction to
alter, amend, or modify that judgment.”). The district court’s order allowing the parties
to file objections was not in accordance with any rule pertaining to post-judgment
procedure, and the district court lacked jurisdiction to invite such objections or to rule on
4
In Lovato v. State, 901 P.2d 408, 411 (Wyo. 1995), we explained “that we will consider relevant federal
precedent when Wyoming’s rules of procedure are similar to the federal rules. See, e.g., Meyer v.
Mulligan, 889 P.2d 509, 517 (Wyo. 1995). We are not however bound by those decisions.”
6
them. Thus, the district court’s order on Mr. Lokey’s objections was a nullity, and
because we have no better jurisdiction than the district court, any appeal from that order
must be dismissed. See Miller, 788 P.2d at 616-17 (declaring the district court’s action a
nullity because it lacked authority to extend a filing period); Lankford v. City of Laramie,
2004 WY 143, ¶ 23, 100 P.3d 1238, 1244 (Wyo. 2004) (“[W]e have no better jurisdiction
than did the district court.”).
II. Does this Court have jurisdiction to award, and is appellee entitled to recover,
attorney fees incurred as a result of this appeal based on the contract which was
the subject of the underlying action?
[¶14] Mr. Irwin argues that he is entitled to an award of attorney fees on appeal pursuant
to the parties’ dissolution agreement. Because we have found that we lack jurisdiction to
determine the merits of Mr. Lokey’s appeal, we must examine whether we have the
jurisdiction to award attorney fees in light of our dismissal. See Clendenning v. Guise,
8 Wyo. 91, 55 P. 447, 450-51 (1898) (addressing the issue of whether a court can award
costs after determining that it lacks jurisdiction). We adopt the conclusion of the
Eleventh Circuit Court of Appeals, finding that the award of attorney fees is collateral to
the merits of a case, and therefore within a court’s jurisdiction, even after the court has
determined that it lacks jurisdiction of the underlying claim. Prime Ins. Syndicate, Inc. v.
Soil Tech Distributors, Inc., 270 Fed. Appx. 962, 964-65 (11th Cir. 2008). This comports
with Wyoming’s approach when awarding attorney fees in the lower courts. We have
held that even when a district court loses jurisdiction over the merits of the action after an
appeal is docketed, it retains jurisdiction to award costs and attorney fees if appropriate.
Garwood v. Garwood, 2010 WY 91, ¶ 25, 233 P.3d 977, 984 (Wyo. 2010). We find that
the award of attorney fees is collateral to the merits of the case, and we therefore have
jurisdiction to award attorney fees on appeal when appropriate.
[¶15] A party is entitled to recover attorney fees if expressly provided for by statute or
contract. Kinstler v. RTB South Greeley, LTD., LLC, 2007 WY 98, ¶ 13, 160 P.3d 1125,
1129 (Wyo. 2007). “Where a contract allows the award of attorney’s fees, that includes
fees incurred on appeal.” Id. at ¶ 13, 160 P.3d at 1129. In this case, the contract
provides:
If any legal action is brought for the enforcement of this
Contract or because of any alleged dispute, breach, default or
misrepresentation in connection with any of the provisions of
this Contract, the prevailing party shall be entitled to recover
reasonable attorney’s fees and other costs incurred, in
addition to any other relief to which a party may be entitled.
Mr. Irwin is the prevailing party and entitled to recover reasonable attorney fees incurred
on this appeal. We will determine the appropriate sum to be awarded after counsel
7
submits proper documentation. W.R.A.P. 10.06; see also GGV v. JLR, 2005 WY 14,
¶ 16, 105 P.3d 474, 480 (Wyo. 2005) (allowing the parties 15 days to submit a statement
of attorney’s fees to the court in accordance with W.R.A.P. 10.06).
CONCLUSION
[¶16] This Court lacks jurisdiction to entertain Mr. Lokey’s appeal, and therefore we
dismiss the appeal. Mr. Irwin is entitled to reasonable attorney fees pursuant to the
parties’ dissolution agreement. This amount shall be determined after submission of
proper documentation by counsel.
8
BURKE, Chief Justice, concurring in part and dissenting in part.
[¶17] I write separately because I disagree with the majority’s determination that we
lack jurisdiction. We have previously explained:
An appealable order is “[a]n order affecting a substantial right
in an action, when such order, in effect, determines the action
and prevents a judgment[.]” W.R.A.P. 1.05(a). “[A]
judgment or order which determines the merits of the
controversy and leaves nothing for future consideration is
final and appealable, and it is not appealable unless it does
those things.” Public Service Commission v. Lower Valley
Power, 608 P.2d 660, 661 (Wyo. 1980).
Steele v. Neeman, 6 P.3d 649, 653 (Wyo. 2000). “Said another way, to be appealable, an
order must leave nothing for future consideration.” Miller v. Beyer, 2014 WY 84, ¶ 20,
329 P.3d 956, 962 (Wyo. 2014).
[¶18] I recognize that the document at issue was entitled “Entry of Default Judgment
with Findings of Facts and Conclusions of Law,” and that it was signed by the judge and
entered in the court docket. However, the title of the document is not determinative in
assessing whether it is an appealable order. We must review the contents of the entire
document in order to determine its impact.
Most appellate courts, in addressing finality, agree that the
substance should be elevated over the form of the order. See
generally 4 C.J.S. Appeal & Error § 94b, pp. 265-66. Instead
of emphasizing the name given to an action below, we should
concentrate on the effect the order has on the parties’ rights.
Stone v. Stone, 842 P.2d 545, 548 (Wyo. 1992). In this case, when the entire document is
reviewed, it is clear that the order did not resolve all outstanding issues. The order states:
THE COURT HAS PREPARED THIS ORDER. IN THE
EVENT THAT ANY PARTY OBJECTS TO THE FORM
AND/OR CONTENT OF THIS ORDER, SUCH
OBJECTING PARTY SHALL HAVE TEN (10) DAYS
TO FILE AND SERVE ANY OBJECTIONS, ALONG
WITH AN ALTERNATE FORM OF ORDER. THE
COURT RESERVES THE RIGHT TO RULE UPON
ANY OBJECTIONS FILED BY ANY PARTY WITH,
OR WITHOUT, A HEARING. FAILURE TO FILE
AND SERVE ANY OBJECTIONS, ALONG WITH AN
9
ALTERNATE FORM OF ORDER, WITHIN TEN (10)
DAYS FROM THE DATE HEREOF SHALL BE
DEEMED A COMPLETE WAIVER OF ANY AND ALL
OBJECTIONS AS TO FORM OR CONTENT OF THIS
ORDER.
(Capitalization and emphasis in original.) Based upon the clear and unambiguous terms
of the order, it would only become final if no objections to the order were filed within ten
days. Appellant filed his objections within the ten-day time period.
[¶19] The case before us now is more akin to 2-H Ranch Co., Inc. v. Simmons, 658 P.2d
68, 69 (Wyo. 1983), in which “the district court entered what is purported to be a
judgment” indicating that, after the commencement of trial, the parties reached a
settlement agreement. The terms of that agreement, as set forth in the purported
judgment, were that the Simmonses would deed certain property to 2-H Ranch, and 2-H
Ranch would pay the Simmonses a sum of money. Id. at 70. The purported judgment
concluded: “That with the tender of payment by [2-H Ranch] in accordance with the
terms set forth above, [and] the delivery of the aforesaid warranty deed . . . this action
shall be dismissed with prejudice to all parties, and each party shall bear his or her own
costs.” Id.
[¶20] 2-H Ranch apparently failed to pay the money and the Simmonses obtained a writ
of execution against 2-H Ranch property. The property was subsequently sold at a
sheriff’s sale. Id. at 70-71. Later, 2-H Ranch filed a motion to set aside the sheriff’s sale,
asserting that “the judgment entered by the district court would not permit the issuance of
the writ of execution against its property.” Id. at 71. The district court denied the
motion, but we agreed with 2-H Ranch and reversed that decision. We explained:
The judgment entered by the district court . . . is certainly a
curious document; though so labeled, it is not a judgment and
we cannot hold that it is under the Wyoming Rules of Civil
Procedure. It does not provide the basis for the ultimate
disposition of [the] property.
Id. We determined that the “so-called judgment” was “at best a conditional judgment
that never had its conditions met.”
Conditional judgments are judgments that do not become
effective unless the conditions they contain have been
complied with or that may be defeated or amended by the
performance of a subsequent act or occurrence. In Re Roney,
139 F.2d 175 (7th Cir. 1943). Conditional judgments,
however, are not final or appealable judgments under Rule
10
54(a), F.R.C.P., until all contingencies have been removed.
Id. at 177; 10 Wright & Miller [Federal Practice and
Procedure: Civil § 2651] at 14. Likewise, under Rule 54(a),
W.R.C.P., where a judgment is defined as a final
determination of the rights of parties to an action, a
conditional judgment cannot be held to be a judgment until
the contingencies contained within it have been removed.
2-H Ranch Co., Inc. at 72. We concluded that the conditional judgment with unmet
contingencies did not resolve the rights of the parties and was not a judgment. It did not
support the issuance of a writ of execution, “since such a writ is issued to enforce a
judgment.” Id.
[¶21] Also instructive is the divorce case of Walter v. Walter, 2015 WY 53, ¶¶ 20-24,
346 P.3d 961, 967 (Wyo. 2015), in which, after trial, the district court entered “detailed
and comprehensive Findings of Fact and Conclusions of Law.” The district court later
modified those findings and conclusions, resulting in terms more favorable to Father than
the earlier decision. On appeal, Mother asserted that it was improper for the district court
to alter its findings and conclusions. We noted, however, that “the district court’s
findings and conclusions were not meant as a final order [because they] directed Father to
prepare and circulate a proposed divorce decree.” Id., ¶ 24, 346 P.3d at 967.
Accordingly, we concluded that the initial findings and conclusions were not a final
order, and the district court had the authority to revise them at any time before entering
the divorce decree. See also Broadhead v. Broadhead, 737 P.2d 731, 733 (Wyo. 1987)
(A tentative decision does not “constitute a judicial determination which may be
considered a final order.”).
[¶22] The purported judgment in the case before us was a tentative decision. It
expressly indicated that it could be altered or amended based on the parties’ objections.
It was also a conditional judgment that could not become effective until its contingencies
were fulfilled. But whether characterized as tentative or conditional, the so-called default
judgment did not determine the merits of the controversy, and it expressly left the parties’
objections open for future consideration.5 It was not an appealable order.
[¶23] The merits of this controversy were not finally determined until the district court
entered the order denying Mr. Lokey’s objections. The appealable order in this case was
the order denying the objections, not the purported default judgment. Mr. Lokey
correctly identified the appealable order in his notice of appeal, and that notice, filed
within thirty days of the entry of that order, was timely. We have jurisdiction and this
case should be resolved on the merits.
5
The objection filed by Appellant was not a post-judgment motion for reconsideration because no final
judgment had been entered. Also, if the purported judgment was not an appealable order, it is
unnecessary to determine whether the time for appeal had been tolled.
11
[¶24] If considered on the merits, I would determine that Appellant has failed to
establish prejudicial error and that Appellee is the prevailing party. Accordingly, I would
affirm and award reasonable attorney fees to Appellee based upon the language of the
contract.
12