Wlasiuk v. Whirlpool Corp.

• Decision Date: 28 November 1994
• Docket Number: No. 33651-7-I,33651-7-I
• Citation: 76 Wn.App. 250,884 P.2d 13
• Court: Washington Court of Appeals
• Parties: Joe M. WLASIUK, Respondent, v. WHIRLPOOL CORPORATION, a Delaware corporation, and Louis Fred Huggins, Jr. and Jane Doe Huggins, a marital community, Appellants.

Page 250

76 Wn.App. 250

884 P.2d 13

Joe M. WLASIUK, Respondent, v. WHIRLPOOL CORPORATION, a Delaware corporation, and Louis Fred Huggins, Jr. and Jane Doe Huggins, a marital community, Appellants.

No. 33651-7-I.

Court of Appeals of Washington Division 1.

Nov. 28, 1994.

Stephen Michael Rummage, Davis Wright Tremaine, Seattle, David J. Parsons, Harrold Allen & Dixon, Chicago, IL, for appellants.

Kenneth Robert Shear, Seattle, Marilyn Jean Endriss, Seattle, for respondent.

BECKER, Judge.

This case addresses the effect of a pending determination of attorney fees upon the finality of a judgment against Whirlpool Corporation. Whirlpool filed its appeal in this case 31 days after the court entered an order denying Whirlpool's motion for a new trial, but only 28 days after the court entered an "Amended Judgment" specifying the amount of attorney fees awarded to Wlasiuk, the plaintiff below. Wlasiuk asks this court to dismiss Whirlpool's appeal on the merits as untimely filed.

Dismissal has predictably been the remedy when a notice of appeal is filed beyond the 30-day limit. We are persuaded that a pending determination as to an award of attorney fees does not postpone the finality of a judgment on the merits. We are further persuaded that Whirlpool missed the 30-day deadline for appealing the final judgment in this case. However, we are compelled to deny Wlasiuk's motion under precedent recently established by the State Supreme Court, Franz v. Lance, 119 Wash.2d 780, 836 P.2d 832 (1992).

FACTS

On July 28, 1993, a jury awarded Joe M. Wlasiuk economic damages in the amount of $332,815 after finding that he had been wrongfully discharged under the employee handbook of the Whirlpool Corporation.

On July 30, 1993, the trial court entered a document denoted "Judgment". In accordance with RCW 4.64.030, the document identified the judgment creditor, the creditor's attorneys, and the amount of judgment. It provided that Wlasiuk "is awarded reasonable attorneys' fees and expenses in an amount to be determined later by the Court" and "is awarded statutory costs in an amount to be determined later by the Court." The court allowed Wlasiuk until August 30, 1993 to document the attorney's fees to which he was entitled as prevailing party under RCW 49.48.030.

On August 9, 1993, Whirlpool moved for a judgment notwithstanding the verdict or in the alternative a new trial. The motion was timely under CR 59, which requires that such motions be served and filed "not later than ten days after the entry of the judgment."

On August 30, Wlasiuk filed his motion for attorney's fees.

On September 21, the court entered an order denying Whirlpool's JNOV/new trial motion.

On September 24, the court entered a document denoted "Amended Judgment". This document, which Wlasiuk presented for entry, varied from the earlier "Judgment" only by specifying the exact amount of attorney's fees ($129,033.75) and costs ($939.21).

On October 20, 1993, the trial court entered an Order Awarding Attorneys' Fees to Plaintiff. This Order included detailed findings on the issue of attorney fees as well as the amount of attorney fees and costs that had been specified in the Amended Judgment.

On October 22, 1993, Whirlpool filed its notice of appeal to this court. The notice sought review of the Judgment, the Amended Judgment, the Order denying a new trial, and the Order awarding attorney fees.

Whirlpool believed that the 30-day appeal period began to run on September 24, 1993, when the court entered the Amended Judgment. Whirlpool contends that document was the final judgment on the merits.

Wlasiuk contends that the Judgment of July 30 became final and the 30-day appeal period began to run on September 21, the date of entry of the order denying the new trial motion. Wlasiuk moves to dismiss Whirlpool's appeal as untimely insofar as it pertains to the issues resolved in the July 30 Judgment. Wlasiuk does not contest the timeliness of Whirlpool's appeal with regard to the attorney's fees and costs.

We review these issues:

1. Was it necessary that the court determine the amount of attorney fees to be awarded to Wlasiuk as the prevailing party before the Judgment became final?

2. Should the Amended Judgment be treated as entered pursuant to a timely motion to amend the judgment?

3. Did Whirlpool's timely appeal from the post-judgment order awarding attorney fees bring up the underlying judgment for review under RAP 2.4(b)?

We answer "No" to the first two questions and "Yes" to the third.

DECISION

ISSUE ONE. A judgment on the merits is final and appealable even though the amount of attorney fees to be awarded to a prevailing party remains unresolved.

Whirlpool contends that until the court specified the amount of attorney fees, the court had not determined all of the rights of the parties in the action and there was no final, appealable judgment.

It is clear that the resolution of a claim involving issues of liability and damages is not final and appealable until both issues have been resolved. Bowing v. Board of Trustees of Green River Community College, 85 Wash.2d 300, 534 P.2d 1365 (1975).

The policy served by requiring finality before appeal is to conserve appellate energy and eliminate delays caused by interlocutory appeals. The rule also

emphasizes the deference that appellate courts owe to the trial judge as the individual initially called upon to decide the many questions of law and fact that occur in the course of a trial. Permitting piecemeal appeals would undermine the independence of the district judge, as well as the special role that individual plays in our judicial system.

Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 101 S.Ct. 669, 673, 66 L.Ed.2d 571 (1981); 9 J. Moore, Federal Practice § 110.07 at 39 (2d ed. 1991).

Whirlpool, invoking the policy against piecemeal appeals, relies on Bowing to contend that under Washington law attorney fees awarded to a prevailing party are an element of damages and a judgment is not final until they are awarded.

In Bowing, the trial court entered a partial summary judgment for the plaintiff, leaving open the questions of damages and attorney's fees. Four days later, the trial court entered a judgment setting forth the amount of damages and the attorney's fees allowed. The defendant appealed within 30 days of the entry of this judgment but more than 30 days after the entry of the partial summary judgment. The Supreme Court denied a motion to dismiss the appeal:

The plaintiff's claim in this case was not fully adjudicated until the amount of damages had been determined, including the attorney fees, which the court awarded as an element of damages. The plaintiff insists, however, that the defendant could have taken an appeal from the partial judgment and left the amount of damages and fees to be determined in a separate proceeding. Such a procedure would produce the very mischief which the rule was designed to prevent--the piecemeal trial and appeal of cases.

(Emphasis added.) Bowing, 85 Wash.2d at 302-303, 534 P.2d 1365.

What Bowing holds is that a summary judgment that fails to award damages is partial, not final. The Bowing court had no reason to consider whether attorney fees are distinct from damages, as neither had been awarded in the partial "judgment."

Wlasiuk also relies on Brown v. Suburban Obstetrics, 35 Wash.App. 880, 884, 670 P.2d 1077 (1983). In Brown, the court, framing the plaintiff's contention, said:

Similarly, any award of attorney's fees sought under RCW 49.48.030 is not sought as part of the costs of this action rather, Dr. Brown seeks attorney's fees as additional damages for defendant's failure to comply with RCW 49.48.010. In [Harold Meyer Drug v.] Hurd [, 23 Wash.App. 683, 598 P.2d 404 (1979) ] we declined to read the word "costs" into RCW 4.84.290. Similarly, in the case at bench, we decline to read the word "costs" into RCW 49.48.030.

(Footnote omitted and emphasis added.) Brown, at 884, 670 P.2d 1077.

Brown 's holding distinguishes an award of attorney fees, which is an appealable order, from an award of costs, which is an order that cannot be appealed. As in Bowing, the court was not called upon to consider whether an award of attorney fees is distinct from damages.

Neither Bowing nor Brown can be read as allowing a pending determination of attorney fees to postpone the finality of a judgment that fully adjudicates liability and fixes damages. The question as to the finality of the July 30 Judgment is controlled by Nestegard v. Investment Exchange Corp., 5 Wash.App. 618, 489 P.2d 1142 (1971).

Two principles set forth in Nestegard bear upon the present case. First, when more than one document purports to be the final judgment, the court looks to the content of the instrument, not its title, and substance controls over form. Nestegard, at 623, 489 P.2d 1142.

Second, a final judgment is recognizable as final for purposes of appeal if it finally determines the rights of the parties in the action and is not subject to de novo review at a later hearing in the same cause. This is true even if it directs performance of certain subsidiary acts in carrying out the judgment, the right to the benefit of which is adjudicated in that judgment, and even if it is followed by subsequent orders with regard to those subsidiary acts. Nestegard, at 623-624, 489 P.2d 1142.

Under Nestegard 's analysis, it is immaterial that Wlasiuk chose to call the September 24 an Amended Judgment instead of a judgment or order for attorney fees. The issues of liability and damages resolved by the trial of Wlasiuk's claim and reduced to judgment on July 30 were no longer subject to de novo review once the court denied the new trial/JNOV motion on September 21. Whirlpool recognized as much when it filed its new trial motion. Whirlpool could not have filed a second new trial motion after entry of the Amended Judgment.

Wlasiuk was entitled to have the clock start running on ...