Buckner, Inc. v. Berkey Irr. Supply, No. 38465-1-I

CourtCourt of Appeals of Washington
Writing for the CourtCOX
Citation89 Wn.App. 906,951 P.2d 338
PartiesBUCKNER, INC., a California corporation Appellant, v. BERKEY IRRIGATION SUPPLY, a Washington partnership, Morris and Carol Berkey, Nathan and Elizabeth Berkey, Edward and Susan Berkey, and their respective marital communities, Gerald W. Bushree and Roberta Bushree, and their marital community, d/b/a Hydro-alternatives, a Washington partnership,
Docket NumberNo. 38465-1-I
Decision Date17 February 1998

Page 906

89 Wn.App. 906
951 P.2d 338
BUCKNER, INC., a California corporation Appellant,
v.
BERKEY IRRIGATION SUPPLY, a Washington partnership, Morris
and Carol Berkey, Nathan and Elizabeth Berkey,
Edward and Susan Berkey, and their
respective marital communities,
Gerald W. Bushree and Roberta Bushree, and their marital
community, d/b/a Hydro-alternatives, a Washington
partnership,
No. 38465-1-I.
Court of Appeals of Washington,
Division 1.
Feb. 17, 1998.

[951 P.2d 340]

Page 908

Dennis H. Walters, Karry Tuttle & Campbell, Seattle, for Appellant.

Richard C. Nelson, Nelson & Associates, P.S., Seattle, for Respondents.

COX, Judge.

Buckner, Inc., appeals the trial court's judgment on the jury verdict and for attorney fees in favor of Berkey Irrigation Supply and its guarantors. Berkey cross-appeals, challenging the timeliness of Buckner's appeal, the denial of Berkey's motions for judgment as a matter of law, and certain evidentiary rulings by the court. We reverse and remand with directions.

Buckner is a California manufacturer of irrigation equipment and supplies. Berkey is a Washington wholesale distributor and retailer. In July 1992, Buckner and Berkey entered into two written distributorship agreements under which Berkey agreed to purchase, promote, and sell Buckner irrigation equipment. A few months later, Edward and Nathan Berkey signed a "Continuing Guarantee." The terms of the document provided that the Berkeys unconditionally guaranteed all indebtedness of Berkey to Buckner under the distributorship agreements.

Thereafter, Berkey purchased equipment wholesale from Buckner. Several of Berkey's retail customers discovered defects in the Buckner products. Berkey paid for some of the equipment, returned other items for a full refund, and resold some of the equipment.

In August 1993, Buckner's records showed that Berkey's unpaid principal balance for purchased products was $133,323.05. In early 1994, Buckner brought this action against Berkey and its guarantors for the unpaid principal balance, late fees, and attorney fees. Berkey counterclaimed

Page 910

for damages allegedly incurred as a result of products it claimed were defective.

Prior to trial, the court imposed sanctions against Buckner because of its failure to timely comply with discovery requests. The sanctions precluded Buckner from presenting at trial either certain documentary evidence or two of its primary witnesses. But the order did not preclude Buckner from presenting any other witnesses. For reasons that are not clear from the record, Buckner chose to put on its case in chief through Morris and Nathan Berkey rather than through representatives of Buckner.

At the close of Buckner's case, Berkey moved for judgment as a matter of law. Berkey renewed the motion at the close of its own case. The court denied both motions.

[951 P.2d 341] The jury returned a verdict, the particulars of which we shall discuss more fully later in this opinion. Neither party objected to the form of the jury's verdict when it was announced in open court. The judge accepted the verdict.

After the court accepted the jury verdict, Berkey moved for judgment as a matter of law. The court denied the motion.

Based on its reading of the jury verdict and additional evidence that it took after the verdict, the court entered its judgment on February 16, 1996. In addition to amounts calculated from the jury verdict form, the judgment also included an award of attorney fees to Berkey. The court awarded fees because the amount of the jury verdict, as interpreted by the court, was less than an offer of judgment under CR 68 that Berkey made to Buckner prior to trial.

Buckner timely filed and served its motion for reconsideration of the judgment, but it did not note the motion for hearing. The court denied the motion in an order filed March 12, 1996.

Page 911

Buckner filed its notice of appeal of the judgment on April 9, 1996, and Berkey cross-appealed.

I. TIMELINESS OF APPEAL

We must first address a jurisdictional issue that Berkey raises by its motion to dismiss this appeal. Berkey argues that Buckner's failure to note its motion for reconsideration when it timely filed and served that motion rendered the motion ineffective to extend the time to file Buckner's notice of appeal. Thus, according to Berkey, the time to appeal ran from the date of entry of the judgment, not the date of entry of the order denying the motion for reconsideration. We disagree and hold that the appeal was timely.

The application of court rules to a particular set of facts is a question of law that we review de novo. 1 A necessary prerequisite to appellate jurisdiction is the timely filing of the notice of appeal. 2 An appellant generally has 30 days from the entry of judgment to file its appeal. 3 But, read together, RAP 5.2(a) and RAP 5.2(e) permit the notice of appeal of a judgment to be filed within 30 days of an order deciding certain timely motions. 4 These motions are expressly limited to

a motion for arrest of judgment under CrR 7.4, a motion for new trial under CrR 7.6, a motion for judgment as a matter of law under CR 50(b), a motion to amend findings under CR

Page 912

52(b), a motion for reconsideration or new trial under CR 59, and a motion for amendment of judgment under CR 59.[ 5

In such event, RAP 5.2(e) permits the notice of appeal to be filed within 30 days of the order deciding the motion.

A motion for reconsideration under CR 59(b) is one of the motions specified in RAP 5.2(e). CR 59(b) establishes the time limits for a motion for reconsideration:

A motion for a new trial or for reconsideration shall be served and filed not later than 10 days after the entry of the judgment. The motion shall be noted at the time it is filed, to be heard or otherwise considered within 30 days after the entry of judgment unless the court directs otherwise.[ 6

Buckner filed and served its motion for reconsideration of the February 16, 1996 judgment on February 23, 1996. That was within 10 days of the entry of judgment. [951 P.2d 342] But Buckner did not note the matter for hearing at that time. Berkey moved to strike the motion for reconsideration on the basis of this failure. Berkey also submitted a brief in opposition to the motion for reconsideration.

The court considered the motion to strike without oral argument and denied it. It likewise considered without oral argument the motion for reconsideration and denied it in an order filed March 12, 1996. Buckner filed its notice of appeal on April 9, 1996, 28 days after the order denying its motion for reconsideration.

We must resolve the narrow question of whether failing to note a CR 59 motion at the time that it is timely served and filed makes the motion itself untimely and thus ineffective to extend the time under RAP 5.2(e) to file a notice of appeal.

Berkey relies heavily on Schaefco, Inc. v. Columbia River Gorge Comm'n. 7 There, the appellant filed, but did not

Page 913

serve, its motion for reconsideration within the 10-day time period specified in CR 59(b). 8 Our Supreme Court concluded that the failure to serve the motion within the 10-day limit rendered it untimely. 9 Thus, the motion was ineffective to "extend the 30-day limit for filing the notice of appeal." 10 Because Schaefco had not provided adequate reason for failing to timely serve its motion on the defendant, the court held that dismissal was warranted under RAP 18.8(b). 11

Here, in contrast, Buckner timely served and filed the motion. Thus, Buckner's actions are consistent with the holding of Schaefco regarding timely service and filing. Schaefco did not address the question of the effect of the failure to note the motion. Because noting, not service or filing, is the issue presented here, reliance on that case is misplaced.

The other case on which Berkey relies, Jankelson v. Lynn Constr., Inc., 12 is also of no assistance. There, the court found that MAR 7.1(a) was not ambiguous on the service and filing of a request for a trial de novo. The rule clearly stated that such a request was timely only when both service and filing were accomplished within 20 days. In contrast, CR 59(b) is ambiguous on what the effect the failure to note a CR 59 motion has on either the motion itself or the time to appeal.

No Washington appellate case addresses the CR 59(b) noting requirement or its effect either on the timeliness of a motion for reconsideration or the extension of time to appeal. Similarly, no court rule provides a clear answer to the question presented here.

When interpreting court rules promulgated by our

Page 914

Supreme Court, we use ordinary rules of statutory construction. 13 In general, court rules "contain a preference for deciding cases on their merits rather than on procedural technicalities." 14 Moreover, in construing court rules, we seek to avoid absurd results. 15 The rules of court were "designed to operate in conjunction with one another and not to require meaningless and useless duplication." 16 In interpreting a rule, we strive to be faithful to the language and policy of both the individual rule at issue and the rules as a whole. 17 Because both CR 59(b) and RAP 5.2(e) relate to the timeliness of an appeal, they must be read in pari [951 P.2d 343] materia. 18

First, when RAP 5.2(e) is read together with CR 59(b), it appears that the noting requirement of the latter rule has no bearing on the timeliness of an appeal under the former rule. There are six types of motions designated in RAP 5.2(e). All are initiated in the trial court by a party in the relevant civil or criminal proceeding. The civil and criminal rules expressly prohibit the trial court from extending the time for making any of these motions. 19 All motions are made by timely service and filing of the motion. Only CR 59 includes the additional requirement for noting the motion at the time it is served and filed.

We believe it is unlikely that the Supreme Court...

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41 practice notes
  • In re Detention of Turay, No. 64100-5.
    • United States
    • United States State Supreme Court of Washington
    • October 21, 1999
    ...does not affect the extension of time for appeal under RAP 5.2(e)." Buckner, Inc. v. Berkey Irrigation Supply, 89 Wash.App. 906, 916, 951 P.2d 338, review denied, 136 Wash.2d 1020, 969 P.2d 1063 In short, we are satisfied that Turay's October 28, 1994 motion may be treated as a valid motion......
  • Singleton v. Naegeli Reporting Corp., No. 35234-6-II.
    • United States
    • Court of Appeals of Washington
    • January 15, 2008
    ...of law that an appellate court reviews under a de novo standard. Buckner, Inc. v. Berkey Irrigation Supply, 89 Wash.App. 906, 911, 951 P.2d 338, review denied, 136 Wash.2d 1020, 969 P.2d 1063 (1998). ¶ 11 "A necessary prerequisite to appellate jurisdiction is the timely filing of the notice......
  • Espinoza v. Am. Commerce Ins. Co., No. 31569–0–III.
    • United States
    • Court of Appeals of Washington
    • October 23, 2014
    ...misrepresentation finding required the trial court to enter judgment in its favor, Buckner Inc. v. Berkey Irrig. Supply, 89 Wash.App. 906, 951 P.2d 338 (1998); Mut. of Enumclaw Co. v. Cox, 110 Wash.2d 643, 757 P.2d 499 (1988); Johnson v. Allstate Ins. Co., 126 Wash.App. 510, 108 P.3d 1273 (......
  • Espinoza v. Am. Commerce Ins. Co., No. 31569–0–III.
    • United States
    • Court of Appeals of Washington
    • October 23, 2014
    ...misrepresentation finding required the trial court to enter judgment in its favor, Buckner Inc. v. Berkey Irrig. Supply, 89 Wash.App. 906, 951 P.2d 338 (1998) ; Mut. of Enumclaw Co. v. Cox, 110 Wash.2d 643, 757 P.2d 499 (1988) ; Johnson v. Allstate Ins. Co., 126 Wash.App. 510, 108 P.3d 1273......
  • Request a trial to view additional results
41 cases
  • In re Detention of Turay, No. 64100-5.
    • United States
    • United States State Supreme Court of Washington
    • October 21, 1999
    ...does not affect the extension of time for appeal under RAP 5.2(e)." Buckner, Inc. v. Berkey Irrigation Supply, 89 Wash.App. 906, 916, 951 P.2d 338, review denied, 136 Wash.2d 1020, 969 P.2d 1063 In short, we are satisfied that Turay's October 28, 1994 motion may be treated as a valid motion......
  • Singleton v. Naegeli Reporting Corp., No. 35234-6-II.
    • United States
    • Court of Appeals of Washington
    • January 15, 2008
    ...of law that an appellate court reviews under a de novo standard. Buckner, Inc. v. Berkey Irrigation Supply, 89 Wash.App. 906, 911, 951 P.2d 338, review denied, 136 Wash.2d 1020, 969 P.2d 1063 (1998). ¶ 11 "A necessary prerequisite to appellate jurisdiction is the timely filing of the notice......
  • Espinoza v. Am. Commerce Ins. Co., No. 31569–0–III.
    • United States
    • Court of Appeals of Washington
    • October 23, 2014
    ...misrepresentation finding required the trial court to enter judgment in its favor, Buckner Inc. v. Berkey Irrig. Supply, 89 Wash.App. 906, 951 P.2d 338 (1998); Mut. of Enumclaw Co. v. Cox, 110 Wash.2d 643, 757 P.2d 499 (1988); Johnson v. Allstate Ins. Co., 126 Wash.App. 510, 108 P.3d 1273 (......
  • Espinoza v. Am. Commerce Ins. Co., No. 31569–0–III.
    • United States
    • Court of Appeals of Washington
    • October 23, 2014
    ...misrepresentation finding required the trial court to enter judgment in its favor, Buckner Inc. v. Berkey Irrig. Supply, 89 Wash.App. 906, 951 P.2d 338 (1998) ; Mut. of Enumclaw Co. v. Cox, 110 Wash.2d 643, 757 P.2d 499 (1988) ; Johnson v. Allstate Ins. Co., 126 Wash.App. 510, 108 P.3d 1273......
  • Request a trial to view additional results

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