Andersen v. Hernandez

• Decision Date: 16 November 2005
• Docket Number: No. 05-25.,05-25.
• Citation: 122 P.3d 950,2005 WY 142
• Parties: Kathy A. ANDERSEN, as Personal Representative of the Estates of Jared Steffen, Decedent, and Robert Dean Yates, Decedent; and Jody McCampbell, Individually and as Conservator for Caleb Steffen, a Minor Child, Appellants (Plaintiffs), v. Maria Lopez HERNANDEZ, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 950

122 P.3d 950

2005 WY 142

Kathy A. ANDERSEN, as Personal Representative of the Estates of Jared Steffen, Decedent, and Robert Dean Yates, Decedent; and Jody McCampbell, Individually and as Conservator for Caleb Steffen, a Minor Child, Appellants (Plaintiffs), v. Maria Lopez HERNANDEZ, Appellee (Defendant).

No. 05-25.

Supreme Court of Wyoming.

November 16, 2005.

Representing Appellants: Stephen L. Simonton of Simonton & Simonton, Cody, Wyoming; and L.B. Cozzens of Cozzens, Warren & Harris, Billings, Montana.

Representing Appellee: Katherine Mead of Mead & Mead, Jackson, Wyoming.

Before HILL, C.J., and GOLDEN, KITE, VOIGT, and BURKE, JJ.

KITE, Justice.

[¶ 1] Following the district court's entry of judgment in her favor on a jury verdict, Maria Lopez Hernandez, the defendant, filed a request for an order awarding costs. More than 90 days later, the district court entered an order awarding her costs. Kathy A. Andersen the plaintiff, filed a motion to vacate the order. Relying on this Court's ruling in Paxton Resources, LLC v. Brannaman, 2004 WY 93, 95 P.3d 796 (Wyo.2004), Ms. Andersen argued that the district court lacked subject matter jurisdiction to issue the order because, pursuant to W.R.C.P. 6(c)(2), the request for costs was deemed denied when no determination was made within 90 days of filing the request. The district court denied the motion to vacate, and Ms. Andersen appealed from the order of denial. We affirm.

ISSUES

[¶ 2] Ms. Andersen presents the following issue for review:

Is a post-judgment application for an order determining discretionary costs for the prevailing party following entry of judgment exempt from the 90-day "deemed denied" rule of WRCP 6(c)(2)?

Ms. Hernandez states two issues:

I. Whether this appeal must be dismissed pursuant to W.R.A.P. 2.01 because it was not timely filed.

II. Whether the "deemed denied" rule applies to the taxation of costs awarded pursuant to W.R.C.P. 54 and U.R.D.C. 501.

FACTS

[¶ 3] This case came before this Court previously in Andersen v. Two Dot Ranch, Inc., 2002 WY 105, 49 P.3d 1011 (Wyo.2002). Following our decision in Andersen, the case was remanded to district court for trial. A jury found Ms. Hernandez was not at fault for a fatal collision involving a dead cow lying in the road. The district court entered a judgment on the jury verdict on December 15, 2003. Paragraph 2 of the order contained in the judgment stated: "That Defendant shall be awarded her costs of this action as determined by the Court."

[¶ 4] In accordance with the order awarding costs contained in the judgment, Ms. Hernandez filed a bill of costs on December 26, 2003, in which she itemized her costs and requested an order awarding costs. Ms. Andersen responded with an objection filed on January 9, 2004, in which she asked the district court to disallow a portion of the costs claimed by Ms. Hernandez. By order entered March 30, 2004, 95 days after Ms. Hernandez filed her bill of costs, the district court set the matter for hearing. On March 31, 2004, Ms. Andersen objected to the hearing. Citing W.R.C.P. 6(c)(2), she argued that the request for costs was deemed denied when no action was taken on it within 90 days after filing. The district court denied the objection and held the hearing. On May 17, 2004, the district court entered an order awarding Ms. Hernandez $4,298.40 in costs.

[¶ 5] On August 16, 2004, four days after this Court issued a decision in Paxton, Ms. Andersen filed a Rule 60(b)(4) motion asking the district court to vacate the order awarding costs. Ms. Andersen claimed the district court did not have subject matter jurisdiction to act on the request for costs once the 90-day deemed denied period passed. After a hearing, the district court denied the motion by order entered October 21, 2004. Ms. Andersen appeals the order denying her motion to vacate the order awarding costs.

STANDARD OF REVIEW

[¶ 6] Ms. Andersen contends the district court lacked subject matter jurisdiction to enter an order awarding costs more than 90 days after the bill of costs was filed. We review questions of subject matter jurisdiction de novo. Jauregui v. Memorial Hosp. of Sweetwater County, 2005 WY 59, ¶ 4, 111 P.3d 914, 916 (Wyo.2005).

[¶ 7] To the extent the issue Ms. Andersen presents also requires interpretation of court rules, we apply the standards applicable to statutory review. Paxton, ¶ 16. Construction of rules is a question of law, so our standard of review is de novo. BP America Production Co. v. Dep't of Revenue, 2005 WY 60, ¶ 12, 112 P.3d 596, 602 (Wyo.2005). We begin by giving the words their ordinary and obvious meaning according to their arrangement and connection. Id. We construe the rule as a whole, giving effect to every word, clause, and sentence, and we construe all parts in pari materia. We will not give a rule a meaning that will nullify its operation if it is susceptible of another interpretation. We will not enlarge, stretch, expand, or extend a rule to matters that do not fall within its express provisions. Id., ¶ 15. Only if we determine the language of a statute is ambiguous do we apply general principles of construction. If the language of the rule is not ambiguous, there is no room for further construction. Id.

DISCUSSION

[¶ 8] Citing Paxton, Ms. Andersen contends the district court lacked subject matter jurisdiction to enter an order awarding costs more than 90 days after the request for the order was filed. In making this argument, Ms. Andersen asserts Ms. Hernandez's bill of costs was a "motion" as defined by W.R.C.P. 7(b)(1) and, therefore, was subject to the 90-day deemed denied rule found in W.R.C.P. 6(c)(2). Because more than 90 days passed before the district court held a hearing and entered an order on the bill of costs, Ms. Andersen contends the request was deemed denied. Therefore, she argues, the district court erred in denying her W.R.C.P. 60(b)(4) motion to vacate the order awarding costs.

[¶ 9] Ms. Hernandez asserts in response that Ms. Andersen's appeal must be dismissed because it was not timely filed. Specifically, she claims Ms. Andersen did not file a notice of appeal within 30 days of the December 15, 2003, judgment on the jury verdict, the final appealable order in this case. Ms. Hernandez contends the order from which Ms. Andersen appeals, the denial of her Rule 60(b)(4) motion to vacate, was not a final, appealable order. Ms. Hernandez asserts alternatively that the deemed denied rule does not apply to a bill of costs.

[¶ 10] We begin our discussion by rejecting Ms. Hernandez's contention that the order denying Ms. Andersen's W.R.C.P. 60(b) motion to vacate the order on bill of costs was not an appealable order. An order denying relief under W.R.C.P. 60(b) is appealable. Dexter v. O'Neal, 649 P.2d 680, 681 (Wyo.1982).

[¶ 11] We turn next to Ms. Andersen's assertion that the bill of costs Ms. Hernandez filed pursuant to paragraph 2 of the judgment on jury verdict constituted a motion within the meaning of W.R.C.P. 7(b)(1), which states:

(b) Motions and other papers. —

(1) An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall have a title which identifies the party serving the paper and briefly describes its contents, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion. All motions filed pursuant to Rules 12 and 56 shall, and all other motions may, contain or be accompanied by a memorandum of points and authority.

(emphasis added). Ms. Andersen argues the bill of costs was "an application to the court for an order" awarding costs. Thus, she asserts, it was a motion to which W.R.C.P. 6(c)(2) applied. Rule 6(c)(2) provides:

(c) Motions and motion practice. —

* * *

(2) A request for hearing may be served by the moving party or any party affected by the motion within 30 days after service of the motion. Absent a timely request for hearing the court may, in its discretion, determine the motion without a hearing. A motion not determined within 90 days after filing shall be deemed denied. A party whose motion has been deemed denied shall have 10 days after the effective date of such denial to serve such pleadings or other papers, if any, as may be required or permitted.

(emphasis added.) Pursuant to this rule, Ms. Andersen argues, the bill of costs was deemed denied before the district court's March 30th order setting the matter for hearing, leaving the district court without subject matter jurisdiction to decide the bill of costs.

[¶ 12] The question Ms. Andersen presents is a novel one. We have not previously considered whether a bill of costs filed pursuant to a prior judgment containing an award of costs constitutes a "motion" subject to the deemed denied provision of Rule 6. Our research discloses only two jurisdictions that have considered whether a deemed denied provision applies automatically to foreclose judicial determination of pending matters concerning costs.

[¶ 13] In State v. Boyette, ___ S.W.3d ___, 2005 WL 914668, 2005 Ark. LEXIS 242 (April 21, 2005), the defendant filed a motion more than 30 days after entry of judgment for a reduction of costs he was ordered to pay in the judgment. The trial court held a hearing and entered an order granting the motion. The Arkansas Supreme Court reversed, holding that the trial court had no authority to act on the defendant's motion beyond the 30th day after judgment was entered. The Court relied on Ark.R.Crim.P. 33.3(b), providing that "all posttrial motions or applications for relief must be filed within thirty days after entry of judgment" and 33.3(c), providing that posttrial motions "shall be deemed denied as of the 30th day" after filing. Id.

[¶ 14] In Hierath-Prout v. Bradley, 982 P.2d 329 (Colo.Ct.App.1999),...