The Washington Court of Appeals strictly adheres to the time constraints for filing an appeal found in the Rules of Appellate Procedure (RAP). However, the RAP occasionally confuse even the most well-intentioned attorney and deadlines are missed (…enter, the dreaded malpractice suit). The Washington Supreme Court evaluated whether a summary judgment order resolving all substantive legal claims constitutes a “final judgment” pursuant to RAP 2.2(a)(1) in Denney v. City of Richland, 2020 WL 2212448 (2020).

On February 12, 2019, the superior court entered an order dismissing all of Denney’s claims with prejudice. The order read as follows:

Based on the foregoing IT IS ORDERED, ADJUDGED, AND DECREED:

1. Defendant City of Richland’s motion for summary judgment is GRANTED;
2. Plaintiff Mr. Denney’s motion for summary judgment is DENIED;
3. All claims and causes of action alleged by plaintiff in this matter are DISMISSED WITH PREJUDICE; and
4. Defendant City of Richland is the prevailing party herein and may present judgment accordingly.

On February 15, 2019, the city filed its notice of presentation. On March 14, 2019, the final judgment was entered against Denney, awarding taxable costs to the city for a total judgment of $200. Denney filed his notice of appeal on April 1, 2019, two weeks after the entry of final judgment, but more than 30 days after the summary judgment and dismissal order.

The Court of Appeals, sua sponte, set the matter for dismissal as untimely. Denney argued the 30-day limitation ran from the March 14 judgment. He also requested an extension, arguing the February 12 order was misleading. The Court of Appeals commissioner disagreed. She noted the Order was not misleading because it clearly referred to entry of a judgment in favor of the City, as the ‘prevailing party.’ The commissioner dismissed Denney’s appeal. Denney then moved to modify.

The Chief Judge denied Denney’s motion in part, upholding the commissioner’s ruling dismissing Denney’s appeal of the February 12 Order. He granted Denney’s motion as to the appeal of the March 14 final judgment on the “limited scope of the [$200] cost award.”  Denney moved for discretionary review by the Washington Supreme Court, which was granted.

The Washington Supreme Court interprets a court rule by striving to determine and carry out the drafter’s intent. RAP 2.2(a)(1) permits a party to appeal “[t]he final judgment entered in any action or proceeding, regardless of whether the judgment reserves for future determination an award of attorney fees or costs.” RAP 5.2(a)(1) requires a notice of appeal to be filed no later than “30 days after the entry of the decision of the trial court that the party filing the notice wants reviewed.” The Court looked to the RAP and the plain meaning of “final Judgment.”

Looking to the RAP for explanation, RAP 2.4(b) states, “[a] timely notice of appeal of a trial court decision relating to attorney fees and costs does not bring up for review a decision previously entered in the action that is otherwise appealable under rule 2.2(a) unless a timely notice of appeal has been filed to seek review of the previous decision.” Read together, RAP 2.2 and 2.4 differentiate between appeals on the merits of a legal claim and on its costs.

Black’s Law Dictionary defines final judgment as “A court’s last action that settles the rights of the parties and disposes of all issues in controversy, except for the award of costs (and, sometimes, attorney’s fees) and enforcement of the judgment.” Webster’s Third New International Dictionary defines a final judgment as “a judgment . . . that eliminates the litigation between the parties on the merits and leaves nothing for the inferior court to do in case of an affirmance except to execute the judgment.”

Denney argues the Civil Rules direct the attorney for the prevailing party to “prepare and present a proposed form of order or judgment not later than 15 days after the entry of the verdict or decision.” CR 54(e). According to Denney, the summary judgment order did not limit the March CR 54 judgment to fees and costs, and thus, Denny contends, RAP 2.2(a)(1) does not apply. Denney properly followed CR 54. The Court found the Civil Rule and RAP interaction created confusion, which the rules intend to avoid.

With the above in mind, the Washington Supreme court found the February 15, 2019 order was a final judgment. As such, Denney had missed his 30 day window to properly file for appeal of the issues finalized by the order. However, the Court agreed with Denney the circumstances of his case were sufficiently extraordinary, and treating his appeal as untimely would be a miscarriage of justice.

A summary judgment order wholly resolving a suit on the merits while reserving a cost award for later determination will trigger the deadline for appeal. Discerning counsel will take caution to review all applicable rules and choose the rule set most applicable to the desired path.

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