Summary
holding that a notice of appeal of a merits judgment - filed before the district court entered an attorney fee award - does not confer jurisdiction on the court to decide an appeal of the attorney fee award
Summary of this case from Woodall v. GodfreyOpinion
No. 88CA1493
Decided August 2, 1990. Rehearing Denied August 30, 1990. Certiorari Denied February 4, 1991 (90SC611).
Appeal from the District Court of the City and County of Denver Honorable William G. Meyer, Judge
Calkins, Kramer, Grimshaw Harring, Ted R. Bright, for Plaintiff-Appellee.
Linda L. Petrino, Pro Se.
Both the defendant, American Property Mortgage, Inc., and its then counsel, Linda L. Petrino, initiated this appeal from the judgment of the trial court that assessed attorney fees against both of them. After the case was docketed in this court, however, counsel was allowed to withdraw from representing the defendant, and only she has argued the case, on her own behalf, before us. Because we conclude that we lack subject matter jurisdiction, we dismiss the appeal.
The issue of jurisdiction arises because the initial notice of appeal in this case was filed after the court entered a judgment on the merits against defendant, but before any final judgment respecting attorney fees had entered. In addition, no other notice of appeal was filed until more than six months after the trial court's judgment for attorney fees entered. Under these circumstances, we conclude that neither notice operated to vest this court with jurisdiction to review the only order of the trial court for which review is sought.
On May 12, 1988, after a bench trial, the court adopted extensive findings of fact and conclusions of law, resulting in the entry of judgment against defendant in the amount of some $38,800, plus interest and costs. In the final paragraph of its findings and conclusions, it said that a counterclaim filed by defendant's counsel was "frivolous and groundless" and that its filing was, "in all probability, a Rule 11 violation." The court concluded that it would " consider an award of attorney fees in defense of this particular counterclaim," and it authorized the filing of a motion for an award thereof. Finally, it noted that it " will rule . . . as to attorney fees to be awarded against Defendant and/or defendant's prior counsel, Linda L. Petrino," after the motion was filed. (emphasis supplied)
On June 13, 1988, plaintiff filed a motion requesting an award of attorney fees against both defendant and Petrino in the amount of $4,000. In addition, on July 27, pursuant to a requested order of extension of time, defendant filed a motion under C.R.C.P. 59, seeking either an alteration or amendment to the judgment on the merits or a new trial thereon; no reference to the court's comments upon attorney fees was made in this motion. This motion under C.R.C.P. 59 was denied on August 22. The motion for attorney fees was ultimately set for hearing on October 13.
On October 6, 1988, less than 45 days after the trial court had denied defendant's C.R.C.P. 59 motion, but before the court had acted upon plaintiff's motion for attorney fees, defendant and Petrino filed their notice of appeal with this court. According to this notice, the parties were appealing from the judgment entered on May 12 and the denial of the C.R.C.P. 59 motion on August 22. It also noted that the court was scheduled to hold a hearing on plaintiff's motion to award fees against defendant, "and/or" against defendant and Petrino, on October 13.
Thereafter, a hearing was held upon plaintiff's motion for attorney fees, and on January 4, 1989, the trial court entered judgment against defendant and Petrino in the amount of $3,000, representing attorney fees incurred by plaintiff in defending against the frivolous and groundless counterclaim. However, neither defendant nor Petrino filed any other notice of appeal directed toward the judgment for attorney fees until July 7, 1989, when, in response to plaintiff's motion to dismiss this appeal, an "amended supplemental notice of appeal" was filed, indicating that an appeal was being taken from the judgment entered on January 4, 1989.
In Baldwin v. Bright Mortgage Co., 757 P.2d 1072 (Colo. 1988), the supreme court, disapproving and overruling Martin Marietta v. Busto, 691 P.2d 345 (Colo.App. 1984), cert. denied, 471 U.S. 1017, 105 S.Ct. 2024, 85 L.Ed.2d 305 (1985), and Ortega v. Board of County Commissioners, 657 P.2d 989 (Colo.App. 1982), held that the question of the propriety of an award of attorney fees was sufficiently separate from any underlying judgment that an unresolved question of attorney fees does not prevent a judgment on the merits from being final for purposes of appeal. In doing so, it adopted the reasoning contained in Budinich v. Becton Dickinson Co., 486 U.S. 196, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988) and White v. New Hampshire Department of Employment Security, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982). In White, which presaged Budinich, supra, the United States Supreme Court had held that a motion for attorney fees generally requires an inquiry "separate from the decision on the merits — an inquiry that cannot even commence until one party has `prevailed'."
Relying upon the Baldwin analysis, this court in Roa v. Miller, 784 P.2d 826 (Colo.App. 1989), concluded that a motion for attorney fees is appropriate to be considered after the court determines the merits of the underlying litigation and, contrary to our previous determination in Torrez v. Day, 725 P.2d 1184 (Colo.App. 1986), is not akin to a motion to amend the judgment on the merits. It is, rather, more akin to a request for the assessment of costs under C.R.C.P. 54(d) and C.R.C.P. 121 § 1-22. See also Koontz v. Rosener, 787 P.2d 192 (Colo.App. 1989).
In reliance upon Budinich and White, the federal courts are uniform in concluding that the time for appealing an award of attorney fees "is not in any way linked to the time for an appeal of the underlying case." Autorama Corp. v. Stewart, 802 F.2d 1284 (10th Cir. 1986).
Further, while the federal courts have, in some instances, treated a premature notice of appeal as being validly filed on the date of the entry of a later judgment, this rule is based upon the specific provisions of Fed.R.App.P. 4(a)(2) ("a notice of appeal filed after the announcement of decision or order but before the entry of judgment or order shall be treated as filed after such entry and on the day thereof." (emphasis supplied)). This authority to treat a premature notice as validly filed, however, does not extend to a notice of appeal filed before the announcement of any decision or order.
This court has also accepted a "premature" notice of appeal in some instances. See Ayala v. Colorado Department of Revenue, 43 Colo. App. 357, 603 P.2d 979 (1979) (notice of appeal filed by agency after court's oral order reversing agency's decision accepted, where oral order was later reduced to writing). But see In re Marriage of Hoffner, 778 P.2d 702 (Colo.App. 1989) (if no written judgment pursuant to C.R.C.P. 58(a) has entered, appeal must be dismissed). In no case, however, either in the federal courts or in this court, has the premature appeal doctrine been applied in circumstances in which the appeal taken is from a later order of the court, which had not been orally announced at the time of the filing of the notice. See In re Estate of Anderson, 727 P.2d 867 (Colo.App. 1986) (notice of appeal from order admitting will to probate ineffective to give court jurisdiction to review later order vacating notice of lis pendens). Indeed, it is questionable whether, if a notice of appeal is to be taken as applicable to a later order, the trial court would possess jurisdiction to enter any such later order. See Molitor v. Anderson, 795 P.2d 266 (Colo. No. 89SC13, July 16, 1990).
While we have discovered no decision involving an attempted appeal of an award of attorney fees initiated prior to the time that the order awarding such fees was announced, we are convinced that judgments relating to that subject are sufficiently distinctive from judgments on the merits that an appeal from one cannot also constitute an appeal from the other. See In re Estate of Anderson, supra.
Such a conclusion is particularly compelling in this case. Here, while the trial court had previously found that defendant's counterclaim was frivolous and groundless, at the time of the filing of the notice of appeal that court had not determined whether an award of fees should enter or, if so, whether fees should be assessed against counsel. Likewise, it had not determined the amount of any such fees.
In these circumstances, we conclude that Petrino's effort to appeal a judgment against her, some three months before the court had decided whether it would enter any such judgment, was a futile one. And, we further conclude that the initial notice of appeal in October was insufficient to vest us with jurisdiction to review the judgment entered against Petrino the following January. Consequently, since Petrino failed to file any other notice of appeal within 45 days of the entry of the January 4, 1989, judgment, we lack jurisdiction over this appeal, and it must be dismissed.
We recognize that plaintiff's prior motion to dismiss was denied by the order of a single judge of this court. However, since subject matter jurisdiction is a matter which can be raised at any time, that judge's preliminary ruling upon plaintiff's motion is not binding upon us. See People v. Roybal, 672 P.2d 1003 (Colo. 1983); Bosworth Data Services, Inc. v. Gloss, 41 Colo. App. 530, 587 P.2d 1201 (1978).
Appeal dismissed.
JUDGE DAVIDSON concurs.
JUDGE DUBOFSKY dissents.