Seattle-First Nat. Bank v. Marshall
| Citation | 557 P.2d 352,16 Wn.App. 503 |
| Decision Date | 13 December 1976 |
| Docket Number | Nos. 3390--1,SEATTLE-FIRST,3510--1,s. 3390--1 |
| Parties | NATIONAL BANK, as Executor of the Estate of Blanche Agnethe Olsen, Deceased, Respondent, v. Burt W. MARSHALL and Nel T. Marshall, his wife, Appellants. In the Matter of the ESTATE of Blanche Agnethe OLSEN, Deceased.NATIONAL BANK, as Executor, Appellant, v. Burt W. MARSHALL and Nel T. Marshall, his wife, Respondents. |
| Court | Court of Appeals of Washington |
Davis & Roetcisoender, William R. Roetcisoender, Seattle, for Seattle-First National Bank.
Schweppe, Doolittle, Krug, Tausend, Beezer & Beierle, Alfred J. Schweppe, Seattle, for Burt and Nel Marshall.
Two actions have been consolidated for review. In the first cause, Burt W. Marshall, surviving partner, appeals from an order affirming and compelling compliance with a summary judgment granted on June 28, 1973, in favor of the Seattle-First National Bank, as executor of the estate of a deceased partner. The summary judgment had directed the surviving partner, Marshall, to purchase the 20 percent interest of the deceased partner in the partnership pursuant to a partnership agreement. In the second cause, the Seattle-First National Bank appeals from orders appointing Marshall to serve as administrator of the partnership property and an appraiser to value the partnership property. We dismiss the appeal by Marshall challenging the decree compelling the purchase of the partnership interest and reverse the orders appointing an administrator and appraiser of the partnership property.
On October 29, 1971, Blanche A. Olsen died leaving a nonintervention will that appointed the Seattle-First National Bank to serve as executor. A portion of the decedent's estate included her 20 percent interest in the M & M Investment Company, a partnership. The partnership agreement provided that, upon the death of any partner, 'the survivors shall purchase the interest of the deceased party' in a manner outlined in the agreement. 1 Burt. W. Marshall, the surviving partner, refused to purchase the deceased partner's interest and contended that the agreement created only an option to purchase the interest.
The Seattle-First National Bank, as executor, moved for and was awarded, on June 28, 1973, a summary judgment compelling Marshall to purchase the 20 percent interest in the partnership pursuant to the partnership agreement. On October 29, 1973, July 17, 1974, October 24, 1974, and November 14, 1974, various orders supplementing, modifying, and/or clarifying the original summary judgment were entered. Marshall filed notice of appeal from the November 14, 1974, order.
While these proceedings were taking place, Marshall petitioned for and, on November 1, 1974, was granted ex parte orders appointing himself as administrator of the partnership property and another person to serve as appraiser of the partnership property. The Seattle-First National Bank now appeals and challenges the two appointments.
The first issue presented is whether the executor's motion to dismiss Marshall's appeal should be granted. CAROA 14 governs the appealability of final judgments and orders. We hold that the rule does not permit the present appeal.
Three subsections of CAROA 14 are pertinent to the appeal. They state:
An aggrieved party may appeal a cause over which the court of appeals has jurisdiction from any and every of (the) following determinations, and no others, made by the superior court, or the judge thereof, in any action or proceeding:
(1) From the final judgment entered in any action or proceeding. An appeal from any such final judgment shall also bring up for review any order made in the same action or proceeding either before or after the judgment. . . .
(6) From any order affecting a substantial right in a civil action or proceeding, which either, (1) an effect determines the action or proceeding and prevents a final judgment therein; or (2) discontinues the action; . . .
(7) From any final order made after judgment, which affects a substantial right; and an appeal from any such order shall also bring up for review any previous order in the same action or proceeding which involves the merits and necessarily affects the order appealed from, . . .
CAROA 14(1) does not permit the present appeal from the order entered November 14, 1974, for the order is not a 'final judgment' within the purview of the rule. As stated in Nestegard v. Investment Exch. Corp., 5 Wash.App. 618, 622--23, 489 P.2d 1142, 1145 (1971):
The question whether a judgment is final for appeal purposes is not always clear. . . . CAROA 2 defines judgment as 'any judgment, order or decree from which an appeal lies.' Some light is cast upon the meaning of the term judgment in CAROA 14(1) when considered in connection with RCW 4.56.010, which defines judgment as 'the final determination of the rights of the parties in the action.' The term 'judgment' is to be distinguished from 'order.' The latter term is not separately defined in the rules, but its meaning may be gathered from RCW 4.56.020, which provides 'Every direction of a court or judge, made or entered in writing, not included in a judgment, is denominated an order.' The term 'final judgment' as used in CAROA 14(1) is distinguished from 'order' as used in CAROA 14(2)--(6), (8), and from the term 'final order made after judgment' as used in CAROA 14(7). Each subdivision of Rule 14 describes a different category of judicial determination. Presumably no duplication or overlapping of coverage is intended.
Was the decree of June 28, 1973, or the decree of November 14, 1974, a 'final judgment'? We hold the decree of June 28, 1973 was final and appealable. It granted a summary judgment to the Seattle-First National Bank and in accordance with CR 54, which defines judgment and supersedes RCW 4.56.010 (cited in Nestegard v. Investment Exch. Corp., supra), the decree is a 'final determination of the rights of the parties in the action . . .' A summary judgment in an action involving neither multiple parties nor multiple claims is a final appealable judgment.
Clearly under general principles when the court, in a single claim action, has summarily adjudicated the single claim in its entirety, the summary judgment is final for purposes of appeal.
(Footnote omitted.) 6 Pt. 2 J. Moore, Federal Practice 56.21(1,--2)(1) (2d ed. 1976); See Lone Star Cement Corp. v. F.T.C., 339 F.2d 505 (9th Cir. 1964); 9 J. Moore, Federal Practice 110.06--110.15 (2d ed. 1975); 10 C. Wright & A. Miller, Federal Practice & Procedure § 2715 (1973). Here, the decree is not subject to do novo review, and, though it directs performance of subsidiary acts, the summary judgment entered on June 28, 1973 was final within the meaning of CAROA 14(1). Nestegard v. Investment Exch. Corp., supra. 2
The order entered November 14, 1974, on the other hand, was an order entered to modify and clarify an earlier order dated July 17, 1974. An 'order' is defined by CR 54 as '(e)very direction of a court or judge, made or entered in writing, not included in a judgment . . .' The order of November 14, 1974, was not a final determination of the rights of the parties and was not appealable as a final judgment under CAROA 14(1). Nestegard v. Investment Exch. Corp., supra.
Similarly, neither CAROA 14(6) nor 14(7) permits the present appeal from the November 14, 1974, order. Although both subsections (6) and (7) of CAROA 14 will permit, under certain circumstances, appeals from orders entered subsequent to a final judgment, the record must demonstrate that the later order prejudicially affects a substantial right other than rights adjudicated by the earlier final judgment. Nestegard v. Investment Exch. Corp., supra. No prejudicial violation of any substantial rights caused by the entry of the November 14, 1974, order has been asserted here. The contention advanced is that the granting of the summary judgment prior to the order of November 14, 1974, was erroneous and should be reviewed. The propriety of the November 14, 1974, order, therefore, cannot be reviewed, for no prejudicial denial of a substantial right has been demonstrated. In addition, an appeal from a subsequent order that has been shown to have affected prejudicially a substantial right will not bring up for review a prior final judgment in the same cause, especially after expiration of the 30-day appeal time mandated by CAROA 33. CAROA 14(7) permits review of only a 'previous order,' and, as stated in Nestegard v. Investment Exch. Corp., supra, 5 Wash.App. at 626, 489 P.2d at 1147:
A contrary view would fail to give effect to each subdivision of Rule 14 without unnecessary overlapping coverage . . . and would violate our duty to give effect to the purposes intended to be...
To continue reading
Request your trial
-
Western Washington Corporation of Seventh Day Adventists v. Rasmussen, No. 58139-2-I (Wash. App. 8/27/2007)
...case is at an end, although the judgment is subject to appeal like any other final judgment. Id. (citing Seattle-First Nat'l Bank v. Marshall, 16 Wn. App. 503, 557 P.2d 352 (1976). WWCSDA points to Washington Dredging & Improvement Co. Kinnear,6 to support their argument that filing a lis p......
-
State v. Richardson
...by the earlier final judgment.” State v. Campbell, 112 Wash.2d 186, 190, 770 P.2d 620 (1989) (citing Seattle–First Nat'l Bank v. Marshall, 16 Wash.App. 503, 508, 557 P.2d 352 (1976)). Here, the trial court entered an order denying Siegel's motion to unseal in 2010, six years after final jud......
-
Estate of Ehlers, In re
...death, the personal representative may hire "a qualified and disinterested person...." RCW 11.44.066; Seattle-First Nat'l Bank v. Marshall, 16 Wash.App. 503, 510, 557 P.2d 352 (1976), review denied, 89 Wash.2d 1007 (1977). As was discussed above, the court properly found that the appraisal ......
-
Kirsch v. Cranberry Fin., LLC
...2015) at 19. 11. Id. at 19-20. 12. Id. at 20. 13. Id. at 20-21. 14. Gronauist, 177 Wn. App. at 397. 15. Seattle-First Nat'l Bank v. Marshall, 16 Wn. App. 503, 507, 557 P.2d 352 (1976). 16. Pettiiohn, 34 Wn.2d at 446. 17. Durland v. San Juan County, 182 Wn.2d 55, 76, 340 P.3d 191 (2014). 18.......
-
The Influence of the Uniform Probate Code in Nonadopting States
...v. Sanford, 515 F. Supp. 524, 532 (E.D. La. 1981). UPC § 3-706 as cited in Seattle-First Nat'l Bank v. Marshall, 16 Wash. App. 503, 510, 557 P.2d 352, 356 (1976). UPC §§ 3-801 to -804 as cited in Lunderville v. Morse, 112 N.H. 6, 9, 287 A.2d 612, 614 (1972). UPC § 3-803 as cited in Belancsi......
-
§ 4.3 Superior Court Decisions that May Be Appealed
...judgment, although referees were subsequently required to describe the specific parcels. In Seattle-First National Bank v. Marshall, 16 Wn. App. 503, 507-08, 557 P.2d 352 (1976), review denied, 89 Wn.2d 1007 (1977), the Court of Appeals held that a summary judgment directing a partner to pu......
-
Table of Cases
...(1997): 21.3(1)(a) Seattle-First Nat'l Bank v. Crosby, 42 Wn.2d 234, 254 P.2d 732 (1953): 11.4(3) Seattle-First Nat'l Bank v. Marshall, 16 Wn. App. 503, 557 P.2d 352 (1976), review denied, 89 Wn.2d 1007 (1977): 4.3(1) Seattle Nw. Sec. Corp. v. SDG Holding Co., 61 Wn. App. 725, 812 P.2d 488 ......
-
§54.7 Significant Authorities
..."final judgment," "order," and "final order made after judgment" each describe different acts. Seattle-First Nat'l Bank v. Marshall, 16 Wn.App. 503, 507, 557 P.2d 352 (1976), review denied, 89 Wn.2d 1007 A memorandum opinion that does not contain a caption entitling it an order or judgment ......