Opinion
No. 64154-9-I.
November 1, 2010.
Appeal from a judgment of the Superior Court for King County, No. 08-2-02562-4, John P. Erlick, J., entered August 20, 2009.
Dismissed by unpublished opinion per Appelwick, J., concurred in by Leach, A.C.J., and Cox, J.
Northwest Ironworkers, a collection of employee benefit trust funds, brought a breach of contract action for failure to pay contributions, against both the delinquent employer South-N-Erectors and against Ohio Casualty, an insurance company that had provided a bond to insure payment of such benefit contributions. Northwest Ironworkers obtained summary judgment against South-N-Erectors first and was later awarded summary judgment against Ohio Casualty. The summary judgment against Ohio Casualty disposed of all issues. Ohio Casualty failed to file its notice of appeal within 30 days of the judgment. Accordingly, we dismiss Ohio Casualty's appeal as untimely.
FACTS
South-N-Erectors, LLC, a construction contractor that employed union ironworkers, was required to make certain contributions towards a group of employee benefit trust funds (collectively, Northwest Ironworkers). On March 14, 2006 South-N-Erectors and Ohio Casualty Insurance Company entered into a bond to insure proper and timely payment of those benefit contributions to Northwest Ironworkers. South-N-Erectors subsequently failed to pay some of the contributions as required. Northwest Ironworkers brought a breach of contract action against South-N-Erectors, alleging two distinct time periods of missed contributions: July 2005 through September 2006, and August through November 2007. In the same action, Northwest Ironworkers also named Ohio Casualty as a separate but related codefendant, based on the bond that Ohio Casualty had furnished as a surety. The trial court granted partial summary judgment against South-N-Erectors on January 23, 2009 awarding Northwest Ironworkers contributions for the August through November 2007 period, in the amount of $5,776.10. In a subsequent nunc pro tunc order filed on May 7, 2009 the court added liquidated damages and interest to the award, establishing South-N-Erectors' liability in the final amount of $13,865.95. The case against South-N-Erectors was ultimately resolved in a June 29, 2009 order that denied the defendants' motion to vacate, proclaimed the earlier summary judgment orders to be valid, and stated that "claims [against South-N-Erectors] are no longer pending." Northwest Ironworkers did not receive a copy of this order until June 30, 2009.
Shortly after the May 7th order determining South-N-Erectors liability, however, the trial court recognized that South-N-Erectors had cancelled its certificate of formation. On June 19, 2009 the trial court (temporarily) reversed its earlier holding, denying Northwest Ironworkers motion for summary judgment and dismissing the case against South-N-Erectors. The court dismissed the plaintiffs' claims on the basis that claims against a cancelled limited liability company would abate in accordance with the Supreme Court's May 14, 2009 decision in Chadwick Farms Owners Ass'n v. FHC, LLC, 166 Wn.2d 178, 207 P.3d 1251 (2009). However, on June 29, 2009, the trial court held that Chadwick Farms should not be applied retroactively to a decision already rendered. Accordingly, the claim against South-N-Erectors was deemed not to have abated after all, the judgment in favor of the defendants was rescinded and the earlier order granting summary judgment in favor of Northwest Ironworkers for $13,865.95 was reinstated.
The trial court signed the order on Friday, June 26, but it was not filed until Monday, June 29.
Meanwhile, the trial date had remained in place for June 29, 2009. Ohio Casualty appeared before the court for trial, but Northwest Ironworkers failed to appear, due to their belief that dismissal of the claim against South-N-Erectors left no remaining legal or factual issues to be resolved. On July 8, 2009 Ohio Casualty filed a motion for involuntary dismissal, based in large part on Northwest Ironworkers' failure to appear at trial. Northwest Ironworkers responded to that motion and made a cross-motion for summary judgment against Ohio Casualty.
On July 27, 2009 the trial court entered an order denying defendant surety's motion to dismiss and entering order against Ohio Casualty. Although the court had failed to specifically analyze the bond's terms it concluded that its earlier orders against South-N-Erectors resolved all issues of fact regarding the surety's liability and that Northwest Ironworkers was entitled to receive the full judgment of $13,865.95 from Ohio Casualty by virtue of the bond. The summary judgment order granted judgment in the amount requested. On August 20, 2009 the parties filed an agreed order of judgment against Ohio Casualty. Ohio Casualty filed its notice of appeal on September 14, 2009 appealing both the July 27th and the August 20th orders.
DISCUSSION
I. Timely Notice of Appeal of Summary Judgment
RAP 2.2(a)(1) provides that a party may appeal a final judgment of any superior court proceeding. A notice of appeal must be filed within 30 days after the entry of the trial court's decision. RAP 5.2(a). Here, the trial court's order denying defendant surety's motion to dismiss and entering order against Ohio Casualty was filed on July 27, 2009. It stated in conclusion:
5. The plaintiffs are entitled to a judgment against the surety, Ohio Casualty in the amount of $13,865.95, as affirmed by the decision of Judge [Paris] Kallas.
THEREFORE, IT IS ORDERED, ADJUGED AND DECREED that defendants motion to dismiss is denied and plaintiffs' motion for summary judgment is granted in the amount of $13,865.95.
The July 27th order expressly resolved the remaining issues against Ohio Casualty, granted judgment in Northwest Ironworkers' favor, and specified an exact dollar amount. It was a final, dispositive judgment. When a judgment disposes of all claims and all parties, it is appealable for 30 days, and if it is not appealed in that period, further proceedings are precluded. Kemmer v. Keiski, 116 Wn. App. 924, 932, 68 P.3d 1138 (2003). Accordingly, Ohio Casualty had until August 26, 2009 to file a notice of appeal on the trial court's final judgment. Because Ohio Casualty did not file the notice of appeal until September 14, 2009 some 49 days later, its appeal is untimely.
Ohio Casualty argues that the July 27th order did not constitute a final appealable order and that the final order was actually the agreed order of judgment against Ohio Casualty filed on August 20th. Ohio Casualty seeks to characterize the July 27th order as merely a preliminary expression of the court's intention or a partial order that did not adequately resolve all of the claims. In support of this contention, Ohio Casualty cites to several cases where there was a similar dispute as to which trial court order constituted the final, appealable order.
In Department of Labor Industries v. City of Kennewick, 99 Wn.2d 225, 661 P.2d 133 (1983), the trial judge issued a memorandum decision. The Supreme Court held that the memorandum decision was not a final appealable order. Id. at 226. Ohio Casualty asks us to adopt the same reasoning here, treating the court's July 27th order as a preliminary, less formal opinion rather than as a final order. However, City of Kennewick is distinguishable and inapplicable here. In that case, the trial court's memorandum decision contained "[n]o findings of fact, conclusions of law or judgment." Id. Here, by contrast, the July 27th order was formal, disposed of all of the issues in the case, and plainly granted judgment against Ohio Casualty in the specific dollar amount of $13,865.95.
Ohio Casualty also argues that the July 27th order was merely a partial order and not a final appealable order, citing to Fox v. Sunmaster Products, Inc., 115 Wn.2d 498, 798 P.2d 808 (1990). In Fox, the Supreme Court deemed a notice of appeal timely even though it was not filed within the 30 day deadline, because there were still unresolved issues in the case after the trial court's first order. Id. at 505-06. The court reasoned:
Quite possibly some subsequent order [would] render an adverse decision moot, or the party [would] ultimately prevail on remaining issues or recover against other parties. It therefore makes no sense to mandate an immediate appeal from a partial final judgment entered . . ., even though the judgment might qualify as appealable under RAP 2.2(d).
Id. at 505.
Unlike the first order in Fox, however, the July 27th order in this case against Ohio Casualty was not partial and no issues remained to be resolved. Fox does not apply. Because Ohio Casualty failed to file its notice of appeal within 30 days, its appeal of this judgment is untimely. We do not reach the merits of Ohio Casualty's arguments on appeal.
II. Request for Attorney Fees
Northwest Ironworkers requests statutory attorney fees in accordance with RAP 18.1(b), RCW 4.84.010(6), and Olympic Steamship Co. v. Centennial Ins. Co., 117 Wn.2d 37, 54, 811 P.2d 673 (1991). Ohio Casualty argues that Olympic Steamship fees should not be considered by this court. However, Olympic Steamship attorney fees are plainly applicable here: "[A]n award of fees is required in any legal action where the insurer compels the insured to assume the burden of legal action, to obtain the full benefit of his insurance contract." Olympic S.S., 117 Wn.2d at 53. The Olympic Steamship rule has been expressly extended to an action by an obligee to recover on a surety bond. See Axess Int'l Ltd. v. Intercargo Ins. Co., 107 Wn. App. 713, 720, 30 P.3d 1 (2001); Colo. Structures, Inc. v. Ins. Co. of the W., 161 Wn.2d 577, 597-98, 167 P.3d 1125 (2007). The Supreme Court reasoned that the exact same rationale for awarding attorney fees in the insurance context applied with equal force in the surety bond context: "The disparity of power between a surety and obligee is, with respect to compulsion of performance, identical to the disparity between insurers and the insured." Colo. Structures, 161 Wn.2d at 603. Northwest Ironworkers, as the insured obligee, was required to pursue legal action to obtain the benefit of the bond. Accordingly, Northwest Ironworkers is entitled to attorney fees pursuant to Olympic Steamship and Colorado Structures, in addition to those provided for by statute.
While this court lacks jurisdiction to hear the merits of this case in light of Ohio Casualty's untimely appeal, we retain jurisdiction to award attorney fees and costs where a statute so authorizes, as RCW 4.84.010(6) does here. See, e.g., Kalich v. Clark, 152 Wn. App. 544, 550, 215 P.3d 1049 (2009). We dismiss Ohio Casualty's appeal and award attorney fees to Northwest Ironworkers.