Uap-Columbus Jv 3 v. Nesbitt
| Decision Date | 27 September 1991 |
| Docket Number | UAP-COLUMBUS |
| Citation | 285 Cal.Rptr. 856,234 Cal.App.3d 1028 |
| Court | California Court of Appeals Court of Appeals |
| Parties | JV 326132, etc., et al., Plaintiffs, v. Patrick M. NESBITT, etc., Defendant and Appellant; Nancy Wibbelsman, etc., Defendant and Respondent. B051918. |
Katten Muchin Zavis & Weitzman, Veronica M. Gray, Steven Brower and Michael Khouri, Los Angeles, for defendant and appellant.
Argue Pearson Harbison & Myers, Stephen F. Harbison and Thomas R. Schalow, Los Angeles, for defendant and respondent.
No appearance for plaintiffs.
This matter is before us on a motion by defendant and respondent Wibbelsman to dismiss the appeal in this action for lack of jurisdiction in this court because of failure timely to file a notice of appeal.
Pursuant to the request of defendant and appellant Nesbitt (rule 41(b), Cal.Rules of Court) 1 we placed the motion to dismiss on calendar for hearing because (a) the motion was potentially dispositive of the appeal, and (b) resolving the different interpretations of precedent by the parties might be aided by oral argument.
The essential question framed by the motion to dismiss appeal and opposition thereto is: Did the order and act of the court determining and allocating costs and allowable attorney fees by cost bill procedure after entry of judgment render that judgment interlocutory and not appealable? We rule that it did not; the judgment was final and appealable when entered, on March 19, 1990.
The notice of appeal filed July 23, 1990, stated that it was "from ... the judgment entered on March 19, 1990 ... as modified by the Orders of this Court [taxing and allocating costs] entered on July 23, 1990." On August 13, 1990 there was filed a notice of cross-appeal from the judgment of March 19 and the order on costs entered July 23, 1990. The notice of appeal was not timely filed as to the judgment entered March 19, but was timely filed as to the order on costs, filed July 23, which is a separate appealable order. We dismiss the appeal and the cross-appeal from the judgment entered March 19, 1990. We deny the motion to dismiss the appeal from the order on costs entered July 23, 1990, and we limit the scope of this appeal to the order taxing and allocating costs.
This controversy arises from an action in interpleader and for declaratory relief brought by UAP-Columbus JV 326132, a partnership, (UAP) and The Continent, JV 326128, a partnership, (The Continent) (hereafter collectively "plaintiffs"), on August 5, 1987, against defendant Patrick M. Nesbitt, appellant herein, and defendant Nancy Wibbelsman, respondent herein, sometimes collectively "defendants."
Plaintiff UAP, for itself alone, asserted the first cause of action, in interpleader, seeking to compel both defendants to interplead and to litigate between themselves their conflicting claims to money, $292,400.03, which UAP had deposited with the clerk of the court. UAP alleged that each of defendants claimed some right, title or interest in the deposited money, that those claims were adverse and conflicting, and that UAP was indifferent as to which of defendants' conflicting claims was correct.
In its interpleader cause of action plaintiff UAP inserted a request for allowance of its costs and reasonable attorney fees incurred in that action from the funds UAP had deposited with the court, as authorized by Code of Civil Procedure section 386.6, subdivision (a). 2
Each of the two plaintiffs also pleaded a separate cause of action for declaratory relief, seeking a declaration of the rights of each of the defendants in such plaintiff partnership; of each of defendants' respective rights to receive future distributions from such plaintiff; the duty of each defendant to pay cash calls, if any, to such plaintiff; and declaring the rights and duties of that plaintiff partnership to each of the defendants.
On August 19, 1988, with leave of court, plaintiffs filed a "supplemental complaint in interpleader." It was identical with the original complaint except that plaintiff UAP, for itself alone, alleged a new fourth cause of action, in interpleader, with which UAP deposited a supplemental disputed distribution of $230,750.00 with the clerk of the court. In this cause of action UAP inserted a request for costs and reasonable attorney fees, as it had in the first cause of action.
Plaintiff The Continent did not, at any time, allege a cause of action in interpleader; did not, at any time, insert in its cause of action a request for allowance of costs and reasonable attorney fees incurred in its action; and did not, at any time, deposit any money in interpleader with the court.
When the case was tried, the operative supplemental complaint alleged four causes of action as follows: two causes of action in interpleader and one cause of action for declaratory relief by plaintiff UAP, for itself alone; and one cause of action for declaratory relief by plaintiff The Continent, for itself alone.
After intensive and protracted litigation and trial the court signed and filed its statement of decision and its judgment on March 19, 1990.
In its statement of decision the court made its rulings on the issues raised by the pleadings and determined at trial, including both the interpleader and declaratory relief causes of action, but did not dispose of UAP's request for attorney fees and costs. As to those fees and costs, the trial court stated:
On March 28, 1990, defendant Wibbelsman served notice of entry of judgment on defendant Nesbitt.
Fourteen days later, on April 11, 1990, the attorneys for the parties signed, and there was filed, a stipulation extending time to file a memorandum of costs to May 3, 1990. 3 On May 3, 1990, plaintiffs filed theirmemorandum of costs, and on May 14, 1990 they filed an amended summary of costs, both with supporting documents.
Each of the defendants filed one or more motions to tax costs, together with extensive supporting papers.
The motions of defendants to tax costs were heard by the trial judge on July 23, 1990. The court disallowed certain claimed costs and, in its minute order entered July 23, 1990, ordered, inter alia: "Costs are taxed at $71,127.36 and are to be paid as follows: $47,418.24 by Wibbelsman and $23,709.12 by Nesbitt."
As we have noted, judgment was signed by the trial judge and filed ["entered," rule 2(b) ] on March 19, 1990. On March 28, 1990, counsel for defendant Wibbelsman, now respondent, served by mail, and on March 29, 1990 filed, a notice of entry of judgment with a file-stamped copy of that judgment attached.
On July 23, 1990, defendant and appellant Nesbitt filed his notice of appeal "from ... the judgment entered on March 19, 1990 ... as modified by the Orders of this Court entered on July 23, 1990." On August 13, 1990, defendant and respondent Wibbelsman filed her notice of cross-appeal from "the Judgment entered on March 19, 1990, and from the post-judgment Order ... entered July 23, 1990." 4
1. Respondent Wibbelsman moves to dismiss the appeal and contends that this court has no jurisdiction over the appeal because notice of appeal from the judgment of March 19, 1990, was not timely filed.
2. Appellant Nesbitt contends that his notice of appeal filed July 23, 1990, was timely filed because the judgment entered March 19, 1990 was interlocutory, and therefore not appealable until modified by the court's order of July 23, 1990. In support of his contention he argues that further judicial action was essential to the final determination of the rights of the parties as to 1) the amount of costs and attorney fees to be awarded to plaintiffs, and 2) the allocation of those costs and fees against and between Nesbitt and Wibbelsman.
(Supple v. City of Los Angeles (1988) 201 Cal.App.3d 1004, 1009, 247 Cal.Rptr. 554; and see, § 904.1.)
"[T]he requirement as to the time for taking an appeal is mandatory, and the court is without jurisdiction to consider [an appeal] which has been taken subsequent to the expiration of the statutory period." (Estate of Hanley (1943) 23 Cal.2d 120, 122, 142 P.2d 423; Vibert v. Berger (1966) 64 Cal.2d 65, 67, 48 Cal.Rptr. 886, 410 P.2d 390; accord, Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 674, 125 Cal.Rptr. 757, 542 P.2d 1349; Pressler v. Donald L. Bren Co. (1982) 32 Cal.3d 831, 835, 187 Cal.Rptr. 449, 654 P.2d 219.)
The time for filing notice of appeal is governed, under the facts of this case, by rule 2(a), which provides that
In this case the judgment was entered on March 19, 1990; notice of entry of judgment was served by mail on March 28, 1990, and was filed on March 29, 1990; appellant's notice of appeal was filed 117 days after service, on July 23, 1990. If the judgment entered March 19, 1990, was appealable when...
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