Johnson, Christenson, Viger Constructors, Inc. v. Perry, Shelton, Walker & Associates, No. 56028-0-I (Wash. App. 5/30/2006)
| Decision Date | 30 May 2006 |
| Docket Number | No. 56028-0-I,56028-0-I |
| Court | Washington Court of Appeals |
| Parties | JOHNSON, CHRISTENSON, VIGER CONSTRUCTORS, INC., a.k.a. JCV CONSTRUCTORS, INC., a Washington Corporation, Appellant, v. PERRY, SHELTON, WALKER & ASSOCIATES, PLLC, Respondent. |
Appeal from Superior Court of King County. Docket No. 03-2-39912-4. Judgment or order under review. Date filed: 03/18/2005. Judge signing: Hon. Richard a Jones.
Counsel for Appellant(s), Mark Timothy Higgins, Higgins Geyer & Lock PLLC, 1218 3rd Ave Ste 2500, PO Box 12860, Seattle, WA 98111-4860.
Barbara Zanzig Lock, Higgins Geyer & Lock PLLC, 1218 3rd Ave Ste 2500, PO Box 12860, Seattle, WA 98111-4860.
W. Scott Zanzig, Hall Zanzig Zulauf Claflin McEachern PLL, 1200 5th Ave Ste 1414, Seattle, WA 98101-3106.
Counsel for Respondent(s), Mary C Eklund, Eklund Rockey Stratton PS, 521 2nd Ave W, Seattle, WA 98119-3927.
Emmelyn Hart-Biberfeld, Talmadge Law Group PLLC, 18010 Southcenter Pkwy, Tukwila, WA 98188-4630.
Philip Albert Talmadge, Talmadge Law Group PLLC, 18010 Southcenter Pkwy, Tukwila, WA 98188-4630.
More than thirty days after the trial court granted summary judgment in favor of the defendant, the plaintiff brought a motion asking the trial court to dismiss the defendant's counterclaims so that the plaintiff could proceed with an appeal of the summary judgment order. The trial court ruled that there was nothing to dismiss and that the plaintiff's motion was moot. The plaintiff appeals. We hold that the plaintiff's appeal is untimely because the summary judgment order resolved all claims against all parties and the plaintiff did not bring its appeal within 30 days of that order. Therefore, we dismiss the appeal with prejudice.
On October 30, 2003, JCV Constructors, Inc., brought a lawsuit against Perry, Shelton, Walker and Associates, PLLC (PSW). PSW filed an amended answer on June 11, 2004. In a section titled `RULE 12 AND AFFIRMATIVE DEFENSES' PSW alleged that JCV's `claims, if any have been stated, are frivolous and advanced without reasonable cause.' In a separate section titled `COUNTERCLAIM,' PSW alleged (1) that it was damaged as a result of JCV's intentional or negligent misrepresentations (negligence issue), (2) that JCV breached its contract with PSW (contract issue), and (3) that the complaint was frivolous and that PSW is entitled to expenses and fees under RCW 4.84.185 (statutory fees request). In its request for relief, PSW asked the court to impose an award of costs and fees under CR 11 (CR 11 request).
In September 2004, PSW moved for summary judgment and asked the court to `dismiss with prejudice the complaint by {JCV} on grounds all claims asserted are barred by the 3-year statute of limitations in RCW 4.16.080' and that no other time period applies. On November 17, 2004, the court ordered `that defendant's motion for summary judgment is granted, and plaintiff's complaint is dismissed with prejudice in its entirety.' In a letter on December 8, 2004, PSW's counsel wrote to JCV's counsel that the summary judgment order was not appealable:
Plaintiff cannot now appeal from {the summary judgment} order because the action itself is not concluded. Defendant filed a counterclaim seeking damages from plaintiff under both CR 11 and RCW 4.84.185, among other things. With the dismissal of the complaint, my client can now (and will soon) move for summary judgment on the counterclaim for defense costs.
On December 21, 2004, JCV moved to dismiss PSW's counterclaims. The SFACTS' section of JCV's motion stated in its entirety: `PSW counterclaimed for violations of RCW 4.84.185 and CR 11.' The motion did not address PSW's negligence or contract issues. PSW responded that it had not asserted a counterclaim under CR 11, but had asserted statutory fees, negligence, and contract counterclaims. PSW then stated
Although plaintiff's motion seeks to dismiss the RCW 4.84.185 counterclaim, it is silent as to defendant's other two counterclaims. Thus, plaintiff's motion presumes the negligence and contract counterclaims were extinguished by the summary judgment order signed by this Court on November 21, 2004. . . . For purposes of the present motion, defendant does not disagree.
PSW thus contended that the only counterclaim at issue before the court was the statutory fees counterclaim. In its reply brief to the trial court, JCV concurred with PSW as to the nature of PSW's claims:
Defendant's negligence and contract counterclaims were actually affirmative defenses that were disposed of by this Court's summary judgment ruling. Defendant's Response at 2.
Defendant admits that it did not plead a counterclaim under CR 11. Id. . . .
Defendant's request for attorney's fees under RCW 4.84.185 has expired because the 30 day period to bring such a motion has passed. Defendant's Response at 3.
The trial court held a hearing on the motion to dismiss counterclaims. JCV's counsel again stressed that `there's fairly little controversy in some sense about the validity of the counterclaims.' The court asked JCV whether, by relying on PSW's incorrect position that it had outstanding counterclaims, JCV had `essentially waived' its opportunity to file an appeal within 30 days. JCV argued that equitable estoppel principles would apply, or application of `CR 54(b) fairly neatly takes care of these contentions.'
PSW responded that JCV was trying to make the trial court improperly extend the time for appeal. PSW stressed that JCV had not raised the negligence or contract issues in its motion to dismiss. PSW contended that because all the putative counterclaims claims were either (1) dismissed by the summary judgment order, (2) extinguished by operation of law, or (3) not argued or presented as counterclaims, there was nothing to dismiss in response to JCV's motion and the summary judgment order was the final order.
The trial court agreed with PSW. The trial court held that the CR 11 request was not a counterclaim and that the statutory fees request was extinguished by operation of law 30 days after the court's summary judgment dismissal. The court determined that the contract and negligence issues were extinguished by its earlier summary judgment order, and that `{t}he parties, through their pleadings, do not disagree with this determination.' Thus, the court ruled that the plaintiff's motion was moot and `there is nothing for this Court to dismiss.'
On March 18, 2005, the trial court entered an order denying JCV's motion to dismiss counterclaims on the ground that `no claims or counterclaims remained in this case after' the summary judgment order. JCV filed its appeal on April 6, 2005. In its notice of appeal, JCV sought review of the summary judgment order and the order denying its motion to dismiss counterclaims. PSW moved to dismiss the appeal on the ground that it was untimely. Commissioner Verellen passed PSW's motion to dismiss to this court to be heard at the same time as JCV's underlying claim that the trial court erred in granting PSW's motion for summary judgment.
A party may appeal a superior court final judgment, which is the `final judgment entered in any action or proceeding, regardless of whether the judgment reserved for future determination an award of attorney fees or costs.' RAP 2.2(a)(1). `A party seeking review of a trial court decision reviewable as a matter of right must file a notice of appeal.' RAP 5.1(a). The notice must be filed within 30 days after the entry of the decision of the trial court which the party filing notice wants reviewed.1 RAP 5.2(a). In a case with multiple claims for relief, a party can appeal a final judgment that does not dispose of all the claims as to all the parties only after `an express direction by the trial court for entry of judgment and an express determination in the judgment, supported by written findings, that there is no just reason for delay.' RAP 2.2(d). In such a case, `{t}he time for filing {the} notice of appeal begins to run from the entry of the required findings.' RAP 2.2(d).
A final judgment is an order that `adjudicat{es} all the claims, counts, rights, and liabilities of all the parties.' RAP 2.2(d); see also CR 54; Fox v. Sunmaster Prods., Inc., 115 Wn.2d 498, 503, 798 P.2d 808 (1990); Anderson & Middleton Lumber Co. v. Quinault Indian Nation, 79 Wn. App. 221, 225, 901 P.2d 1060 (1995) (), aff'd, 130 Wn.2d 862 (1996); Rhodes v. D & D Enter., Inc., 16 Wn. App. 175, 178, 554 P.2d 390 (1976) (). It must be `in writing and signed by the judge and filed forthwith.' CR 54(a)(1). An order granting summary judgment can be a final judgment if it meets these requirements. Lee v. Ferryman, 88 Wn. App. 613, 622, 945 P.2d 1159 (1997).
It is clear that the summary judgment order dismissed all of JCV's claims against PSW. We consider each of PSW's claims against JCV separately.
The trial court determined that the statutory fees `counterclaim' was extinguished by operation of law 30 days after the summary judgment order was filed. In Police Guild v. City of Seattle, 113 Wn. App. 431, 441, 53 P.3d 1036 (2002), aff'd, 151 Wn.2d 823 (2004), this court held that a request for fees under RCW 4.84.185 is `not strictly speaking a counterclaim.' In that case, months after issuing its summary judgment order, the trial court signed a stipulated dismissal between the parties of the defendant's statutory fees counterclaim. Police Guild, 113 Wn. App. at 440-41. This fee-shifting statute requires the defendant to petition the court within 30 days of the dismissal order. RCW 4.84.185. Because that claim had already been extinguished as a matter of law, `{n}othing remained to be dismissed.' Police Guild, 113 Wn. App. at 441. Thus, the `use of the order did not reinstate nor extend...
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