Johnson v. Lebert Const., Inc., 24312.

• Decision Date: 18 July 2007
• Docket Number: No. 24312.,24312.
• Citation: 736 N.W.2d 878,2007 SD 74
• Parties: Darrell JOHNSON, Plaintiff and Appellant, v. LEBERT CONSTRUCTION, INC., Defendant and Appellee.
• Court: South Dakota Supreme Court

736 N.W.2d 878

2007 SD 74

Darrell JOHNSON, Plaintiff and Appellant, v. LEBERT CONSTRUCTION, INC., Defendant and Appellee.

No. 24312.

Supreme Court of South Dakota.

Argued May 23, 2007.

Decided July 18, 2007.

Mitchell Peterson of Davenport, Evans, Hurwitz & Smith, LLP, Sioux Falls, South Dakota, Attorneys for plaintiff and appellant.

Kent R. Cutler and Kimberly R. Wassink of Cutler & Donahoe, LLP Attorneys for defendant Sioux Falls, South Dakota and appellee.

GILBERTSON, Chief Justice.

[¶ 1.] Darrell Johnson attempts to appeal from the denial of a motion for new trial and judgment notwithstanding the verdict following a jury trial. We dismiss the appeal for lack of jurisdiction.

PROCEDURAL HISTORY

[¶ 2.] On August 11, 2006, following a jury trial, notice of entry of judgment was served and motions for a judgment notwithstanding the verdict and new trial were filed. On August 18, 2006, the trial court filed a memorandum opinion denying the motions for judgment notwithstanding the verdict and new trial. The court requested counsel for Lebert Construction, Inc. (Lebert) to prepare and serve a conforming order denying the motions. That order was circulated via electronic mail and an order was signed, attested and filed on August 23, 2006.¹ A notice of entry of that order was served on October 2, 2006. On November 1, 2006, Johnson filed a notice of appeal indicating the appeal was made "from the Order Denying Plaintiff's Motion for Judgment Notwithstanding the Verdict and Motion for New Trial." No notice of appeal was filed from the underlying judgment.

[¶ 3.] On November 8, 2006, Lebert filed a motion to dismiss the appeal for lack of timeliness. Johnson filed a response to the motion to dismiss and a supporting affidavit from counsel indicating he was not provided a copy of the order after it was entered until service of the notice of entry over a month later. This Court ordered full briefing on the jurisdictional issue. Following briefing and oral argument, we dismiss the appeal.

STANDARD OF REVIEW

[¶ 4.] "We are required to take notice of jurisdictional questions, whether presented by the parties or not. The appellate jurisdiction of this Court will not be presumed but must affirmatively appear from the record." Double Diamond v. Farmers Co-op. Elevator, 2003 SD 9, ¶ 6, 656 N.W.2d 744, 746. "To determine whether the statutory grant of appellate jurisdiction has been met, the rules of statutory interpretation apply." Id. ¶ 7.

DISCUSSION

[¶ 5.] Johnson argues that even conceding no appeal was taken from the judgment and thus it becomes untimely, the appeal from the denial of the post-trial motions was timely because that date is calculated from the service of notice of entry of the denial of the post-trial motions. In support of this argument, Johnson relies primarily upon two cases, Dean v. Seeman, 42 S.D. 577, 176 N.W. 649 (1920) and McLean v. Merriman, 42 S.D. 394, 175 N.W. 878 (1920). This argument, as well as this precedent, fails when applied to the current statutory scheme.

[¶ 6.] SDCL 15-26A-6 governs the timeliness of an appeal following a motion for new trial or judgment notwithstanding the verdict. During the time period relevant here, that statute provided:

Except as provided in § 15-26A-6.1, an appeal from a judgment or order must be taken within sixty days after the judgment or order shall be signed, attested, filed and written notice of entry thereof shall have been given to the adverse party.

A written notice of appeal filed before the attestation and filing of such signed judgment or order shall be deemed as filed on the date of the attestation and filing of the judgment or order.

The running of the time for filing a notice of appeal is terminated as to all parties by a timely motion filed in the circuit court by any party pursuant to § 15-6-59 or § 15-6-50(b), or both, and the full time for appeal fixed by this section commences to run and is to be computed from the attestation and filing of an order made pursuant to such motion or if the circuit court fails to take action on such motion or fails to enter an order extending the time for taking action on such motion within the time prescribed, then the date shall be computed from the date on which the time for action by the circuit court expires.

SDCL 15-26A-6 (2006) (emphasis added). Compare SDCL 15-26A-6 (amended March 17, 2006, by Rule 06-59, with effective date of July 1, 2006) (changing the time limit from sixty days to thirty days to perfect an appeal). The notice of entry requirement provided in the first part of the rule relates to a judgment or an independently appealable order. Perfecting an appeal following motions for new trial or judgment notwithstanding the verdict is governed by the third part of the rule. Accordingly, as expressly provided in the rule, the appeal time following such motions begins to run from the attestation and filing of the order denying the post-judgment motions.²

[¶ 7.] In this case, the relevant time to perfect the appeal from the judgment was sixty days following the attestation and filing of the order denying the post-trial motions. Attestation and filing of the order was effectuated on August 23, 2006. From that day, notice of appeal was required to be perfected by October 22, 2006, which was a Sunday; therefore, Johnson had until the following Monday, October 23, 2006, to timely file the appeal. Notice of appeal was not filed until November 1, 2006. Even then, the notice of appeal only related to the post-judgment orders.

[¶ 8.] Nevertheless, Johnson seeks to calculate the appeal time from the notice of entry of the denial of the post-judgment motions despite the specific statutory provision triggering the appeal deadline from attestation and filing of the order. To support that calculation, Johnson cites earlier cases indicating the denial of a motion for new trial is independently appealable even when the appeal from the judgment is untimely. See McLean, 42 S.D. at 395, 175 N.W. at 879; Dean, 42 S.D. at 577, 176 N.W. at 649; Brown v. Brown, 49 S.D. 167, 206 N.W. 688 (1925); Keyes v. Baskerville, 41 S.D. 214, 170 N.W. 143 (1918) (recognizing that an appeal from an order denying a motion for new trial and the appeal from the judgment are "separable and independent"). As such, Johnson argues a notice of entry of the denial of the motion, as an appealable order, was required, therefore, rendering the appeal timely from that event. These decisions interpreted the Code of 1919.³

[¶ 9.] However, although overlooked by both parties in their discussion of timeliness, there is a separate, more modern line of cases, holding that an appeal may not be taken from an order denying a new trial as such order is only reviewable upon appeal from the underlying judgment in the matter. See Oahe Enterprises Inc. v. Golden, 88 S.D. 296, 218 N.W.2d 485 (1974); State Highway Comm. v. Madsen, 80 S.D. 120, 119 N.W.2d 924, 927 (1963); Meyer v. Meyer, 76 S.D. 268, 77 N.W.2d 559 (1956); Wilge v. Cropp, 74 S.D. 511, 54 N.W.2d 568 (1952) (dismissing appeals taken from orders denying new trial).⁴ Instructively, those cases recognized:

Several basic changes in our rules of appellate procedure were made with the enactment of the South Dakota Code of 1939. One of these was to remove an order denying a new trial from the list of appealable orders. Prior to this change an appeal was authorized from either an order granting or denying a new trial. 3168(3) RC 1919. However, SDC 33.0701 permitted appeals only from orders granting a new trial. That is the situation now. SDCL 15-26-1(3). Complementing this change it was provided in the 1939 Code that an order denying a new trial could be assigned as error and reviewed on an appeal from a judgment. SDC 33.0710. This is still our rule. SDCL 15-26-19. There was no need for this when an appeal could be taken from an order denying a new trial. The review permitted is of all matters properly and timely presented to the court by the application. SDCL 15-26-21. Since the order here involved is one denying a new trial we must hold that an appeal from it does not lie.

It has been intimated that the order in question is appealable under SDCL 15-26-1(4). So far as here pertinent an appeal under it may be taken from:

"(4) Any final order affecting a substantial right, made . . . upon a summary application in an action after judgment;"

In Wilge v. Cropp, 74 S.D. 511, 54 N.W.2d 568, it was held that the design of this provision was to secure to an aggrieved party a review of such final orders, affecting substantial rights, as could not be considered on an appeal from the judgment entered in such matter. In other words, if the order is reviewable on an appeal from the judgment it is not an appealable order within the purview of this section. [88 S.D. at 302, 218 N.W.2d 485]

Other orders entered after judgment, besides those denying a new trial, were also made reviewable on an appeal from the judgment by SDC 33.0710. This now appears as SDCL 15-26-19. To be reviewable on such appeal the order must be one "involving the merits and necessarily affecting the judgment." An order satisfies that requirement if its affirmance, modification or reversal would in any manner affect the judgment appealed from. Williams v. Williams, 6 S.D. 284, 61 N.W. 38; Howells v. Howells, 79 S.D. 480, 113 N.W.2d 533. Since this order is of that kind it is reviewable in an appeal from the judgment. Consequently it is not appealable under SDCL 15-26-1(4).⁵

Oahe Enterprises, Inc., 88 S.D. at 296, 218 N.W.2d at 487-88. There was no attempt here to appeal the judgment, most likely because of the timeliness issue, however, a separate appellate avenue is not created by the denial of the motion for new trial or judgment notwithstanding the verdict to resurrect an appeal.⁶ In the absence of a properly perfected appeal from the judgment, the denial of the post-judgment motions is not reviewable.

[¶ 10.] In summary, ...