Opinion
No. 22256-0-III, Consolidated with No. 22257-8-III
Filed: February 22, 2005
Appeal from Superior Court of Spokane County. Docket No. 02-1-00162-0. Judgment or order under review. Date filed: 06/19/2003. Judge signing: Hon. Kathleen M O'Connor.
Counsel for Petitioner(s), Michelle Dimond Szambelan, City Attorneys Office, 909 W Mallon, Spokane, WA 99201-3333.
Counsel for Respondent/Cross-Appellant, Janice Elaine Holmes, Attorney at Law, PO Box 216, Lummi Island, WA 98262-0216.
Tracy Arlene Staab, City of Spokane Public Defender's Office, 824 N Monroe St, Spokane, WA 99201.
In these consolidated cases the city of Spokane appeals RALJ determinations made by Spokane County Superior Court Judge Kathleen O'Connor on review of municipal court decisions. Gerald Landgren and Ralph Sandaine moved to dismiss for the city's failure to file timely notices for discretionary review. We agree the appeals were not timely filed and dismiss.
FACTS
Mr. Landgren and Mr. Sandaine were found guilty in their respective jury trials in Spokane Municipal Court. Both appealed issues to the superior court.
Mr. Landgren was charged with being in actual physical control of a motor vehicle while under the influence of intoxicating liquor or drugs. Spokane Municipal Code (SMC) 16.61.504.
Mr. Sandaine's charge was domestic violence. SMC 10.11.010.
Superior Court Judge Kathleen O'Connor heard oral argument on Mr. Sandaine's appeal on March 20, 2003 and gave an oral decision. Judge O'Connor found the trial court made improper evidentiary rulings requiring reversal of the conviction and remanded the case to the municipal court. The record shows that Judge O'Connor notified Mr. Sandaine, defense counsel Kathy Knox, and prosecutor Michelle Szambelan that in issuing her decision she would be following her usual practice, as was known to counsel: she would cause her oral ruling to be reduced to writing, then sign the ruling, file it with the court, and send a copy to counsel. The judge then inquired as to Mr. Sandaine's status. She was told a show cause hearing had been set to consider probation violations due to his conviction. Judge O'Connor stated, `I don't know if my decision will get out, but I would assume the City would have no objection to asking the Municipal Court to stay that proceeding pending the transcription of my decision.' Clerk's Papers (Cause No. 22257-8-III) at 228.
Approximately two weeks later, on April 1, Judge O'Connor rendered an oral opinion after argument on Mr. Landgren's appeal. Mr. Landgren was also represented by Ms. Knox and the city was represented by Ms. Szambelan. Judge O'Connor ruled that the trial court improperly instructed the jury and ordered the conviction reversed and remanded.
Consistent with Judge O'Connor's practice, an oral ruling in each case was reduced to writing, signed by the judge on June 3, filed with the clerk on June 6, and forwarded to counsel.
On June 12, Judge O'Connor wrote to counsel regarding each case, apparently in response to a request for a presentment date. In each letter, she remarked that she understood the case was resolved. Nonetheless, the judge scheduled a presentment. Prior to the presentment date, Ms. Knox prepared a document captioned `Ruling on RALJ Appeal' on each case, which Ms. Szambelan signed, waiving notice of entry and presentment. In each case the previously entered oral ruling was attached and incorporated to the ruling on RALJ appeal and added nothing substantive to the previously entered document. The documents were entered on June 19. The city filed notices for discretionary review in both cases on July 21. Both Mr. Sandaine and Mr. Landgren moved for dismissal for the city's failure to file a timely notice for discretionary review. This court granted discretionary review in each case. Because both cases involve the same parties and an identical issue that is dispositive, we consolidated the matters.
Mr. Landgren cross-appealed for, among other things, dismissal as a jurisdictional matter for failure to timely appeal. Mr. Sandaine did not cross-appeal; rather, he simply raised the issue in his responsive brief. In each case the issue was construed as a motion to dismiss by the commissioner accepting discretionary review. See RAP 10.4(d); RAP 17.4(d). We will review it on the same basis.
DISCUSSION
An aggrieved party may seek discretionary review of an appeal from a court of limited jurisdiction. RAP 2.3(d); RALJ 9.1(h). The party seeking discretionary review must file notice in the trial court within 30 days `after the act of the trial court which the party filing the notice wants reviewed.' RAP 5.2(b). Interpretation of court rules and application of the rules to a specific set of facts is a question of law we review de novo. City of College Place v. Staudenmaier, 110 Wn. App. 841, 845, 43 P.3d 43 (2002); State v. Kindsvogel, 149 Wn.2d 477, 480, 69 P.3d 870 (2003).
Mr. Landgren and Mr. Sandaine both argue that the `Court's Oral Ruling' triggered the start of the 30-day period in which the city was required to file for discretionary review. Therefore, they argue, the city's notices for discretionary review filed more than 40 days after entry of those orders are untimely. The city argues that because the court's oral rulings were deficient in form and entered without notice, those filings were nonevents. Instead, the 30-day time for appeal did not start until after the entry of the rulings on RALJ appeal, and the appeals were therefore timely.
The rulings on RALJ appeal were filed on June 19, 2003. The thirtieth day from the filings was July 19, a Saturday. Because the last day fell on a weekend, the period is extended to the next day, not a weekend. RAP 18.6(a). Here, the first day after the weekend was Monday, July 21. Both the city and Mr. Sandaine seem to erroneously agree that Mr. Sandaine's appeal was not filed until notice was served on the opposing party on July 21. Service of the notice is to take place on the same day as filing. RAP 5.4(b). If it is not, a party prejudiced by the failure to so serve may seek `appropriate relief' from the appellate court. RAP 5.4(b). Failure to comply with the service requirement does not change the date notice is filed, however.
Form of RALJ Order
RALJ 9.1(g) requires that on review of a matter that originated in a court of limited jurisdiction the superior court's decision must be in writing, state its reasoning, and be filed with the clerk. Here, the court's oral rulings are in writing, set forth the judge's reasoning, and were filed with the clerk. The form of the decisions therefore complies with RALJ 9.1(g).
The city cites a similar requirement set forth in CR 54(a). It asserts that CR 54(a) applies because RALJ 11.7(a) incorporates it. But RALJ 11.7(a) relates to the applicability of certain court rules on appeal in civil cases, which this is not. RALJ 11.7(b) incorporates certain superior court criminal rules which, in turn, adopt certain civil rules. Since CR 54(a) is not among them, it does not apply. See State v. Sommerville, 111 Wn.2d 524, 535, 760 P.2d 932 (1988) (noting under rule of construction, `expressio unius est exclusio alterius,' the express inclusion of certain conditions excludes the implication of others).
The city relies on State v. Knox, 86 Wn. App. 831, 939 P.2d 710 (1997), overruled on other grounds by State v. O'Neill, 148 Wn.2d 564, 62 P.3d 489 (2003). In Knox, Division Two of this court held that the trial court's memorandum decision satisfied the minimum requirements of the RALJ and most of the necessary elements of a judgment or order. However, because it did not contain `a caption entitling it an order or judgment' or order that some action take place, it was insufficient to meet the requirements of a formal order as required by CR 54(e). Knox, 86 Wn. App. at 836 (citing Dep't of Labor Indus. v. City of Kennewick, 99 Wn.2d 225, 228, 661 P.2d 133 (1983)). However, Kennewick, upon which Knox relied, was not a RALJ case. Nor is Corrigal v. Ball Dodd Funeral Home, Inc., 89 Wn.2d 959, 577 P.2d 580 (1978), also cited by the city. Nowhere in the RALJ does it require that the superior court's decision comply with the requirements of a formal order set forth in CR 54(e). In Steinmetz v. Call Realty, Inc., 107 Wn. App. 307, 312-13, 23 P.3d 1115 (2001), this court also disagreed with Knox to the extent that it held that these formalities were required under the RALJ.
In Corrigal, the Supreme Court held that the filing of a memorandum decision is not the entry of a judgment, and the time for appeal does not commence to run until the judgment is entered. Corrigal, 89 Wn.2d at 961.
CR 54(e) is not adopted by the RALJ. See discussion supra note 5.
In Steinmetz, we held that a trial court's letter opinion was a final judgment in that it set out factual findings, conclusions of law, and unequivocally entered judgment. Therefore, the aggrieved party's motion for reconsideration, which was not filed within 10 days of issuance of the opinion, was untimely. Steinmetz, 107 Wn. App. at 313.
Running of Time for Appeal
In order to determine the date the appeal time begins to run, RAP 5.2(c) directs us to look to CR 5(e) and CR 58.
CR 5(e) deals with the definition of filing. The rule provides that papers are filed with the clerk of court, `except that the judge may permit the papers to be filed with him or her, in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk.' CR 5(e). CR 58(b) provides that `[j]udgments shall be deemed entered for all procedural purposes from the time of delivery to the clerk for filing' unless they are filed with the judge per CR 5(e).
CR 58(c) refers us to CR 54(f) for rules regarding notice of entry. CR 54(f)(2) provides that an order is not entered and may not be signed until five days' notice of presentation and a copy of the proposed order is provided by its proponent to the opposing party unless an emergency is shown to exist, opposing counsel has approved or waived notice of presentation, or presentation is made while opposing counsel is in open court.
The city argues that the court's `unilateral submission of a signed transcript of its oral ruling' does not trigger the 30-day time for appeal. Petitioner's Reply Cross-Response Br. (Cause No. 22256-0-III) at 6; Petitioner's Reply Br. (Cause No. 22257-8-III) at 3. First, as the city points out, the judge herself caused her oral rulings to be reduced to writing, accepted them as her orders on June 3, and filed them with the clerk on June 6. Those acts triggered CR 5(e). The date of filing is then June 3. CR 58(a). Second, since the judge entered the orders herself, it cannot be said that Mr. Sandaine and Mr. Landgren failed to give the 5-day notices and failed to provide proposed orders as required by CR 54(f)(2). According to the judge's known practice, none of the parties would have a copy until Judge O'Connor sent it. It would have been, as a practical matter, impossible to give notices or serve the city with proposed orders.
Failure to comply with the notice requirement in CR 54(f)(2) generally renders the trial court's entry of the judgment or order void. City of Seattle v. Sage, 11 Wn. App. 481, 482-83, 523 P.2d 942 (1974). Lack of notice of presentation will not result in invalidity, however, when the complaining party shows no resulting prejudice. Burton v. Ascol, 105 Wn.2d 344, 352, 715 P.2d 110 (1986). Here, as shown by the court's letters regarding a presentment date, the city received copies of the first orders within a week of their entry. Therefore, it cannot claim prejudice by the lack of notice; it had adequate time to plan for and file its notices for discretionary review.
It is immaterial that the city did not receive copies of the oral rulings as proposed orders before entry. It was not prejudiced by a lack of opportunity to contest those orders because the orders contain, unambiguously, the court's rulings for which the city was present.
The most compelling evidence of the city's lack of prejudice is that the city was aware of Judge O'Connor's practice of using the transcribed, signed, and filed oral ruling as the final RALJ order. The city has not shown — or even argued — prejudice as it must to invalidate the entry of the first orders. See Burton, 105 Wn.2d at 352.
Enlargement of Time under RAP
We will enlarge the time in which to file a motion for discretionary review only `in extraordinary circumstances and to prevent a gross miscarriage of justice.' RAP 18.8(b). Ordinarily we hold that `the desirability of finality of decisions outweighs the privilege of a litigant to obtain an extension of time.' RAP 18.8(b). `Extraordinary circumstances' sufficient to allow an extension of the time within which a party must file a notice of appeal are:
[C]ircumstances wherein the filing, despite reasonable diligence, was defective due to excusable error or circumstances beyond the party's control. In such a case, the lost opportunity to appeal would constitute a gross miscarriage of justice because of the appellant's reasonably diligent conduct.
Reichelt v. Raymark Indus., Inc., 52 Wn. App. 763, 765-66, 764 P.2d 653 (1988); see also Shumway v. Payne, 136 Wn.2d 383, 395, 964 P.2d 349 (1998). That there is no prejudice to a respondent is irrelevant; granting an extension without extraordinary circumstances prejudices "the appellate system and to litigants generally, who are entitled to an end to their day in court." Shumway, 136 Wn.2d at 395-96 (quoting Reichelt, 52 Wn. App. at 766 n. 2). Neither a simple mistake of counsel, Reichelt, 52 Wn. App. at 766, nor counsel's erroneous legal conclusion about when and where to file an appeal, Shumway, 136 Wn.2d at 396-97, constitute `extraordinary circumstances' required by RAP 18.8(b) to extend the time for filing a notice necessary to obtain review.
Here, the city has not asked for an extension under RAP 18.8(b), and we are not inclined to grant one under these facts.
CONCLUSION
Judge O'Connor's oral ruling transcripts are final orders under the RALJ. The court's entry of those documents on June 3 started the 30-day time for appeal. Given the nature of the orders, method of entry, and the city's knowledge of the judge's procedure for entry of RALJ orders, the city was not prejudiced by the entry of these RALJ orders without notice. The city's notices for discretionary review filed on July 21 were untimely. There are no extraordinary circumstances argued or present to expand the time in which to file for discretionary review. We therefore dismiss the appeals as untimely.
Because we find this issue dispositive, we need not address the other issues presented by the parties.
KATO, C.J. and KURTZ, J., Concur.