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Minasyan v. Starkweather

The Court of Appeals of Washington, Division One
Nov 22, 2004
124 Wn. App. 1021 (Wash. Ct. App. 2004)

Opinion

No. 53676-1-I

Filed: November 22, 2004 UNPUBLISHED OPINION

Appeal from Superior Court of King County. Docket No: 02-2-34715-1. Judgment or order under review. Date filed: 12/22/2003. Judge signing: Hon. Michael J Fox.

Counsel for Appellant(s), F. Lawrence Jr Taylor, Taylor Law Firm PS, 17422 108th Ave SE Ste 200, Renton, WA 98055.

Counsel for Respondent(s), Edwin J Snook, Snook Schwartz, 25 Central Way Ste 410, Kirkland, WA 98033-6158.


Alina Minasyan appeals from the denial of her motion to amend her complaint to add a new theory and a new defendant. But because the order denying her motion was interlocutory, to obtain review Minasyan either had to successfully move for discretionary review before her original claim was resolved, or else timely file a notice of appeal after the original claim was litigated. Minasyan did neither. Her appeal is not properly before this court and must be dismissed.

On December 26, 1999, Alexandra Starkweather was involved in an automobile accident with Minasyan. The car Alexandra drove was owned by her parents, Dana and Thyra Starkweather, but neither of them was in the car at the time. A police accident report was filed identifying Alexandra as the driver and Dana as the registered owner.

On November 22, 2002, Minasyan filed an action for monetary damages against Dana and 'John Doe Starkweather,' wife and husband, alleging that Dana was the negligent driver of the Starkweather car. Dana and Thyra were served on December 6, filed a notice of appearance on December 17, and filed an answer in March 2003, in which they asserted, among other things, that Minasyan had sued improper parties. In April, the Starkweathers served answers to interrogatories again asserting that Dana was not the driver. In August 2003, Minasyan noted the litigation for arbitration and an arbitration hearing date of December 4, 2003 was set. The defense prehearing statement again asserted that Dana was not the proper party.

Minasyan then filed a motion to amend her complaint to add Alexandra as a party, and the family car doctrine as a new theory against Dana and Thyra. The Starkweathers filed a response arguing that because Minasyan had failed to show any justification for her initial failure to plead the case properly, the trial court was within its discretion to deny the motion. The trial court denied the motion to amend, and later denied Minasyan's motion to stay arbitration pending appeal of those orders. Minasyan filed notices of appeal as to the denial of the motion to amend and the denial of the motion to stay. The arbitrator eventually ruled against Minasyan on the original claim. Minasyan did not appeal the arbitrator's decision and did not appeal from the ultimate dismissal of her suit in superior court.

'A necessary prerequisite to appellate jurisdiction is the timely filing of the notice of appeal.' The dispositive issue before us is whether Minasyan filed a timely appeal; she did not.

Buckner, Inc. v. Berkey Irrigation Supply, 89 Wn. App. 906, 911, 951 P.2d 338 (1998).

We therefore do not address the merits of Minasyan's claims that the trial court abused its discretion in denying the motion to allow her to amend the complaint.

Minasyan contends that the trial court's decisions denying her proposed amendments to the complaint and denying her motion to stay arbitration qualified as final decisions under RAP 2.2(3) because they effectively determined the action. But RAP 2.2(3) expressly requires that for such a decision to be treated as appealable, it must 'prevent a final judgment or discontinue the action.' The trial court's rulings in this case did neither. Moreover, Minasyan cites no case supporting her novel claim and Washington courts have long held that the orders relating to a motion to amend a pleading are not final decisions subject to an appeal as of right. Minsayan alternatively asks this court to consider her claims under the discretionary review provisions of RAP 2.3(a). But this request comes too late. Under RAP 6.2, interlocutory review is accepted in this court only when the court grants a motion for discretionary review. Until that time, pursuant to RAP 7.1, the trial court retains full authority to act. Accordingly, under RAP 5.2(e), '[i]f a final judgment is entered after a notice of discretionary review is filed, a party seeking review of the final judgment must file a notice of appeal from the judgment. . . .' And Minasyan failed to appeal the final judgment.

RAP 2.2(3).

Quient v. Jennings, 136 Wash. 532, 533, 240 P. 899 (1925).

See RAP 5.1(c) (incorrectly designated notice of appeal treated as notice for discretionary review).

'The trial court retains full authority to act in a case before review is accepted by the appellate court, unless the appellate court directs otherwise as provided in rule 8.3.' RAP 7.1. We note that Minasyan did not request a stay or other relief in this court pursuant to RAP 8.3.

Although not cited by Minasyan, we have also considered whether review would be appropriate under RAP 5.2(g). While generally '[a] premature notice of appeal is totally ineffective,' Glass v. Windsor Nav. Co., 81 Wn.2d 726, 730, 504 P.2d 1135 (1973), RAP 5.2(g) provides an exception if a notice of appeal is filed after the announcement of a final decision but before it is entered. In those circumstances, the notice of appeal is treated as if filed on the day following entry of the decision. This case does not fall within the scope of RAP 5.2(g) because the written rulings in issue here were not appealable as of right.

Finally, as another alternative, Minsayan contends that '[t]he arbitration award and judgment apply only to the allegations contained against Dana Starkweather in the original summons and complaint and do not apply to claims against Alexandra Starkweather.' But she cites no legal authority for this contention and we do not consider on appeal arguments that are not supported by citation to authority.

RAP 10.3(a)(5).

Dismissed.

BAKER, J., KENNEDY, J. and GROSSE, J.


Summaries of

Minasyan v. Starkweather

The Court of Appeals of Washington, Division One
Nov 22, 2004
124 Wn. App. 1021 (Wash. Ct. App. 2004)
Case details for

Minasyan v. Starkweather

Case Details

Full title:ALINA MINASYAN, individually, Appellant, v. DANA W. STARKWEATHER and JOHN…

Court:The Court of Appeals of Washington, Division One

Date published: Nov 22, 2004

Citations

124 Wn. App. 1021 (Wash. Ct. App. 2004)
124 Wash. App. 1021