Lokey v. Irwin

• Decision Date: 17 May 2016
• Docket Number: No. S–15–0233.,S–15–0233.
• Parties: Jeff LOKEY, Appellant (Defendant), v. Mike IRWIN, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

374 P.3d 311

2016 WY 50

Jeff LOKEY, Appellant (Defendant)

v.Mike IRWIN, Appellee (Plaintiff).

No. S–15–0233.

Supreme Court of Wyoming.

May 17, 2016.

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

, 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 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 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.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,...