Opinion
No. 60849-5-I.
August 4, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-2-15370-7, Laura C. Inveen, J., entered October 22, 2007.
Dismissed by unpublished per curiam opinion.
This is an appeal by Kristina Bazley, the defendant in this personal injury lawsuit. The trial court entered a judgment for one plaintiff and granted a second plaintiff's motion for a new trial and/or additur. Bazley's notice of appeal identified only the judgment in favor of the first plaintiff, Shole Abuna. The judgment does not dispose of all claims by all parties in the case. Moreover, the trial court did not enter findings required for finality under CR 54(b) and RAP 2.2(d). Thus, the judgment is not appealable. We dismiss the appeal.
While driving in downtown Seattle, Bazley's car collided with a car owned by Tola Arero and occupied by Abuna. Arero and Abuna sued Bazley for damages. Following mandatory arbitration, Arero and Abuna requested a trial de novo. The jury returned a verdict in favor of both plaintiffs.
In September 2007, Abuna moved for judgment notwithstanding the verdict or judgment on the verdict plus costs. The trial court entered a judgment on the verdict for Abuna. Bazley filed a timely notice of appeal seeking review of the judgment in favor of Abuna.
Arero also moved for a new trial on damages and additur. The trial court granted Arero's motion for a new trial on property damage only. The trial court ultimately ordered a new trial for Arero on all damages or additur of $12,000.
APPEALABILITY OF JUDGMENT
A threshold question that no party raises is whether the judgment that is the subject of the notice of appeal is properly before us. We hold that it is not.
RAP 12.1(b); State v. Aho, 137 Wn.2d 736, 741, 975 P.2d 512 (1999).
Generally, a judgment is appealable as a matter of right only after the trial court disposes of all claims of all parties. A judgment that does not dispose of all claims as to all parties may be appealed only if the trial court makes the findings described in CR 54(b) and RAP 2.2(d). Alternatively, this court may treat a notice of appeal as a request for discretionary review.
Fox v. Sunmaster Products, Inc., 115 Wn.2d 498, 505, 798 P.2d 808 (1990).
CR 54(b) provides:
Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross claim, or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination in the judgment, supported by written findings, that there is no just reason for delay and upon an express direction for the entry of judgment. The findings may be made at the time of entry of judgment or thereafter on the courts own motion or on motion of any party. In the absence of such findings, determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
RAP 2.2(d) provides:
Multiple Parties or Multiple Claims or Counts. In any case with multiple parties or multiple claims for relief, or in a criminal case with multiple counts, an appeal may be taken from a final judgment that does not dispose of all the claims or counts as to all the parties, but only after an express direction by the trial court for entry of judgment and an express determination in the judgment, supported by written findings, that there is no just reason for delay. The findings may be made at the time of entry of judgment or thereafter on the court's own motion or on motion of any party. The time for filing notice of appeal begins to run from the entry of the required findings. In the absence of the required findings, determination and direction, a judgment that adjudicates less than all the claims or counts, or adjudicates the rights and liabilities of less than all the parties, is subject only to discretionary review until the entry of a final judgment adjudicating all the claims, counts, rights, and liabilities of all the parties.
RAP 2.3(b) provides:
Considerations Governing Acceptance of Review. . . . [D]iscretionary review may be accepted only in the following circumstances:
(1) The superior court has committed an obvious error which would render further proceedings useless;
(2) The superior court has committed probable error and the decision of the superior court substantially alters the status quo or substantially limits the freedom of a party to act;
(3) The superior court has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by an inferior court or administrative agency, as to call for review by the appellate court; or
(4) The superior court has certified, or that all parties to the litigation have stipulated, that the order involves a controlling question of law as to which there is substantial ground for a difference of opinion and that immediate review of the order may materially advance the ultimate termination of the litigation.
Here, the trial court has not resolved all claims as to all parties. Arero's claims against Bazley remain pending. The judgment in favor of Abuna is not a final judgment. Nor are there findings as required by CR 54(b) and RAP 2.2(d) to support a determination that there was no just reason for delay. The judgment is not appealable.
In the interest of judicial economy, we consider whether Bazley's notice of appeal should be treated as a motion for discretionary review. Assuming we do so, we conclude that the criteria for granting review have not been met. Bazley assigns error to the trial court's decisions to exclude two witnesses and to redact certain information provided by those witnesses from defense exhibits. None of these claims merits review under the criteria stated in RAP 2.3(b).
RAP 5.1(c) provides in pertinent part: "A notice of appeal of a decision which is not appealable will be given the same effect as a notice for discretionary review."
ORDER GRANTING NEW TRIAL AND/OR ADDITUR
There is no notice of appeal directed to the orders regarding Arero's motions for a new trial on damages and/or additur. Timely filing of a notice of appeal is a prerequisite to appellate jurisdiction. To the extent Abuna makes arguments on behalf of Arero, we need not address them as he is not properly before this court and is not an aggrieved party as to Arero's claims.
Buckner, Inc. v. Berkey Irr. Supply, 89 Wn. App. 906, 911, 951 P.2d 338 (1998).
Because this court is presently without jurisdiction to address any claims of these parties, we do not reach the question of attorney fees that Bazley and Abuna raise.
We dismiss the appeal.