Sherman v. Rose

• Decision Date: 28 August 1997
• Docket Number: No. 96-125,96-125
• Citation: 943 P.2d 719
• Parties: Jesse Junior SHERMAN and Doris Maye Sherman, Husband and Wife, Appellants (Defendants), v. P.J. ROSE, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 719

943 P.2d 719

Jesse Junior SHERMAN and Doris Maye Sherman, Husband and Wife, Appellants (Defendants), v. P.J. ROSE, Appellee (Plaintiff).

No. 96-125.

Supreme Court of Wyoming.

Aug. 28, 1997.

Georg Jensen, of Law Offices of Georg Jensen, Cheyenne, for Appellants.

Bruce N. Willoughby, of Brown, Drew, Massey & Sullivan, Casper, for Appellee.

Before TAYLOR, C.J., and THOMAS, MACY, GOLDEN and LEHMAN, JJ.

THOMAS, Justice.

This appeal must be dismissed because of the failure of Jesse Junior Sherman and Doris Maye Sherman (Shermans) to file a notice of appeal within thirty days from the entry of the Order Granting Summary Judgment. In response to a contention by P.J. Rose (Rose) that this Court lacks jurisdiction, the Shermans rely upon a motion to reconsider order granting plaintiff's motion for summary judgment, filed in the district court, as tolling the time within which the notice of appeal was required to be filed. We hold that a motion to reconsider a decision must be the functional equivalent of a motion to alter or amend the judgment for the period for filing a notice of appeal to be tolled. Unless such a motion serves to demonstrate an intervening change in controlling law, new evidence not available at the time of the original hearing, or the need to correct a clear error of law or prevent a manifest injustice, the motion to reconsider will not serve as the functional equivalent of a motion to alter or amend the judgment. The motion to reconsider order granting plaintiff's motion for summary judgment, filed in this case, did not serve as the functional equivalent of a motion to alter or amend the judgment, and the appeal must be dismissed because the Notice of Appeal was filed more than thirty days after the entry of the Order Granting Summary Judgment.

The Shermans in the Brief of Appellant articulate these substantive issues:

1. Did the district court err in holding that the Defendant's redemption was untimely?

2. Did the district court err in concluding that the Plaintiff-Appellee's notice of intent to apply for a tax deed was effective even though such notice was void as a violation of the automatic stay of the Defendants' bankruptcy proceeding?

The Brief of Appellee P.J. Rose offers this counter statement of the issues presented for review:

1. Did the district court err in holding that the defendant's redemption was untimely?

2. Did the district court err in applying the majority rule that a bankruptcy automatic stay does not prevent the expiration of a redemption period?

In addition to the substantive issues, Rose presents as his first two arguments:

1. The Wyoming Supreme Court should summarily dismiss this appeal with prejudice for lack of jurisdiction after an untimely appeal.

2. The Wyoming Supreme Court should summarily dismiss this appeal with prejudice for failure to comply with the Wyoming Rules of Appellate Procedure.

The underlying facts relate to a house the Shermans once owned in Casper. On July 25, 1992, the property was sold for delinquent taxes. The certificate of purchase, which was issued to the purchaser at the tax sale, later was assigned to Rose. On April 25, 1995, Rose advertised a Notice of Intent to Apply for a Tax Deed in the Casper Star Tribune. The notice stated that the last day the property could be redeemed was August 9, 1995, and on that day Rose would apply for the tax deed. Rose sent the Notice of Intent to Apply for a Tax Deed by certified mail to the Shermans, as the record owners, at their Cheyenne address. The mailed copy was delivered to the Shermans on May 4, 1995. On July 21, 1994, the Shermans filed a petition for reorganization pursuant to 11 U.S.C. §§ 1101 et seq. The proceeding was converted to a Chapter 7 bankruptcy, and ultimately was dismissed on July 20, 1995.

On August 9, 1995, Rose filed an application for a tax deed, and it was accepted. On that same day, the Shermans attempted to redeem the property by sending a cashier's check by Federal Express to the Natrona County Treasurer. The check was received on the following day, August 10, 1995. The Shermans and Rose both filed motions for summary judgment. They sought a determination as to whether the Shermans' redemption was valid; whether the Notice of Intent to Apply for a Tax Deed was stayed by the Shermans' bankruptcy; and whether title to the property could be quieted in favor of Rose. The district court ruled in favor of Rose. It concluded that the Shermans' bankruptcy did not inhibit the Notice of Intent to Apply for a Tax Deed, and that the attempted redemption of the property by the Shermans was not timely. On January 11, 1996, the Shermans filed a Motion to Reconsider Granting of Plaintiff's Motion for Summary Judgment. The Shermans' position is that this motion for reconsideration was deemed denied after ninety days, and they filed a timely notice of appeal on April 24, 1996. That was more than thirty days after the entry of the Order Granting Summary Judgment, but less than thirty days after the time at which the Shermans deemed the Motion to Reconsider Order Granting Plaintiff's Motion for Summary Judgment to have been denied.

Even had Rose not argued the question of jurisdiction, this court would have the right to consider its jurisdiction on its own motion. Amrein v. Wyoming Livestock Bd., 851 P.2d 769, 771 (Wyo.1993); Kurpjuweit v. Northwestern Development Co., Inc., 708 P.2d 39, 44 (Wyo.1985); Hayes v. State, 599 P.2d 569, 570 (Wyo.1979); Jackson v. State, 547 P.2d 1203, 1205 (Wyo.1976); Wyoming State Treasurer ex rel. Workmen's Compensation Dept. v. Niezwaag, 444 P.2d 327, 328 (Wyo.1968); Big Horn Coal Co. v. Sheridan-Wyoming Coal Co., 67 Wyo. 300, 224 P.2d 172, 177 (1950). Indeed, we have a duty to be satisfied as to the jurisdiction of this court. Niezwaag; Big Horn Coal Co.We hold that the Notice of Appeal was not timely filed in this instance, and do not reach either the argued issue of failure to comply with our rules of appellate procedure or the substantive issues argued by the parties.

The thirty day period for filing a notice of appeal from a judgment in the district court is prescribed by WYO. R. APP. P. 2.01. A timely motion to alter or amend the judgment under WYO. R. CIV. P. 59 tolls the period for filing a notice of appeal. WYO. R. APP. P. 2.02. The crux of the issue in this case is whether the motion to reconsider should be deemed a motion to alter or amend a judgment pursuant to WYO. R. CIV. P. 59.

A motion styled as a motion for reconsideration, if filed within the ten day period, generally could be considered a motion to alter or amend a judgment under WYO. R. CIV. P. 59(e). See Waye v. First Citizen's...