Lead Opinion
[F1] The district court entered a default judgment against the appellant, Jeff Lokey, that included a provision allowing the parties ten days to file objections to the judgment. Mr. Lokey filed an objection, which the court denied. Mr. Lokey then appealed the court's order denying his objections. We find that we lack jurisdiction to decide Mr. Lokey's appeal, and we therefore dismiss, though we will award attorney fees incurred in this appeal.
ISSUES
[¶ 2] 1. Does this Court have jurisdiction to entertain Mr, Lokey's appeal, or must we dismiss because Mr. Lokey did not timely appeal an appealable order?
2. Does this Court have jurisdiction to award, and is appellee entitled to recover, attorney fees incurred as a result of this appeal based on the contract which was the subject of the underlying action?
FACTS
[T8] The parties were business partners in two Wyoming businesses, Summit Investments, a general partnership, and Rocky Mountain Wash, LLC. In October 2009, they entered into an agreement to dissolve their shared business ventures. Each party was to receive certain property owned by those businesses, along with the corresponding debt. The agreement also provided for payments to be made by Mike Irwin, the appel-lee, to Mr. Lokey, On December 8, 2014, Mr. Irwin filed a complaint against Mr. Lo-key alleging that Mr. Lokey had neglected to service the debts on property granted to him through the dissolution agreement, and that,
[T4] The district court proceeded with the March 12, 2015 hearing, first allowing counsel to argue Mr. Lokey's motion to continue, which it denied, and then proceeding to hear Mr. Irwin's motion for a default judgment. The court entered its default judgment on April 27, 2015, declaring that Mr, Lokey had materially and substantially breached the dissolution agreement, and that, as a result, Mr, Irwin was relieved from performing any further obligations under the agreement.
THE COURT HAS PREPARED THIS ORDER. IN THE EVENT THAT ANY PARTY OBJECTS TO THE FORM AND/OR CONTENT OF THIS ORDER, sUCH OBJECTING PARTY SHALL HAVE TEN (10) DAYS TO FILE AND SERVE ANY OBJECTIONS, ALONG WITH AN ALTERNATE FORM OF ORDER. THE COURT RESERVES THE RIGHT TO RULE UPON ANY OBJECTIONS FILED BY ANY PARTY WITH, OR WITHOUT, A HEARING. FAIL URE TO FILE AND SERVE ANY OBJECTIONS, ALONG WITH AN ALTER- - NATE FORM OF ORDER, WITHIN TEN (10) DAYS FROM THE DATE HEREOF SHALL BE DEEMED .A COMPLETE WAIVER OF ANY AND ALL OBJECTIONS AS TO FORM OR CONTENT OF THIS ORDER.
(Capitalization and emphasis in original.) On May 11, 2015, Mr. Lokey filed Defendant's Objections to Entry of Default Judgment with Findings of Facts and Conclusions of Law Dated April 27, 2015, which the district court denied on June 24, 2015. The court's order denying Mr, Lokey's objections was cursory and provided no substantive discussion of the issues presented, instead stating: "The conclusions of law made by the Court [in the default Judgment] are appropriate based on 'the findings made within the Order." Mr, Lokey filed his notice of appeal on July 28, 2015, designating the district court's order denying his objections as the decision from which he was appealing.
DISCUSSION
I. Does this Court have jurisdiction to entertain Mr. Lokey's appeal, or must we dismiss because Mr. Lokey did not timely appeal an appealable order?
[T5] Mr. Lokey presents various issues on appeal. However, this Court must first be satisfied that it has jurisdiction to entertain the appeal. Harmon v. Star Valley Med. Ctr.,
[TI 6] The Wyommg Rules of Appellate Procedure set, forth the requirements to
We have held that an appealable orde1 under Rule,1.05(a) has "three necessary characteristics,... It must affect a substantial right, determme the merits of the controversy, 'and 'resolve all outstanding issues," In re K.R.C.K.,2013 WY 160 , ¶ 28,314 P.3d 1170 , 1176 (Wyo.2013) (quoting In re KRA,2004 WY 18 , ¶ 10,85 P.3d 432 , 436 (Wyo.2004)). Whether an order is final and appealable is a questlon of law, which we decide de novo.... Bourke v. Grey Wolf Drilling Co., LP,2013 WY 93 , ¶ 15,305 P.3d 1164 , 1167 (Wyo.2013) (citing In re MN,2007 WY 189 , ¶ 4,171 P.3d 1077 , 1080 (Wyo.2007)).
Waldron,
In a number of cases, this Court has held that "(ain order denying a motion for a new trial is not an appealable order." Rutledge v. Vonfeldt,564 P.2d 350 , 351 (Wyo.1977); Sun Land & Cattle Co. v. Brown,387 P.2d 1004 , 1006 (Wyo.1964). This is because "[elrror lies to the judgment, but not to the decision of the motion; though that decision may be made a ground for the reversal of the judgment." Mitter v. Black Diamond Coal Co.,193 P. 520 , 521,27 Wyo. 72 (Wyo.1920) (quoting Young v. Shallenberger,53 Ohio St. 291 [, 301],41 N.E. 518 ], 521 (1895)) ]. The same rule applies to an order denying a motion to alter or amend. Parker v. Kahin, 758 P.20 570, 570-71 (Wyo.1988). Because Appellant's notice of appeal does not identify an appealable order, this Court finds that this appeal, to the extent it seeks to challenge the denial of the motion to alter or amend, must be dismissed, Scott v. Sutphin,2005 WY 38 ,109 P.3d 520 (Wyo.2005).
[17] Even if Mr. Lokey had identified the default judgment as the order appealed from, the notice was too late. The district court entered its default judgment on April 27, 2015, "An appeal from a trial court to an appellate court shall be taken by filing the notice of appeal ... within 80 days from entry of the appealable order[.]" W.R.AP. 2.01(a), Mr. Lokey did not file his notice of appeal until July 28, 2015, clearly outside of the thn'ty-day deadline.
(1 8] The time for filing a notice of appeal can be tolled in some circumstances. WRAP. 2.02(a).
The time for appeal in a civil case ceases to run as to all parties when a party timely files [] a motion for judgment under Rule 50(b), Wyo, R, Civ. P.; a motion to amend or make additional findings -of fact under Rule 52(b), Wyo. R. Civ. P....; a motion to alter or amend the judgment under Rule 59, Wyo. R. Civ. P., or a motion for a new trial under Rule 59, Wyo. R. Civ. P.
W.RAP. 2.02(a). The time for filing a notice of appeal is not tolled, however, when the
[¶ 9] Wyoming Rule of Civil Procedure 50(b) provides that a party may renew a motion for a judgment as a matter of law previously made during the course of a jury trial, This was not a jury trial, but a hearing on a motion for a default judgment. As a result, Rule 50(b) does not apply. Id. at ¶ 17,
[110] Wyoming Rule of Civil Procedure 59 likewise fails to toll the time for filing an appeal in this case. Mr. Lokey's filing was not a motion for a new trial under Rule 59(a) because no trial was held. The parties presented no evidence at the hearing, and each relied only upon oral argument from counsel. Rule 59(a) "presupposes that the district court has conducted a trial," which did not occur here. Waldron,
[T11] Finally, a motion cannot be characterized as one under Rule 59(e)
unless it is based on legal issues derived from an intervening change of controlling law, factual issues arising from newly dis covered evidence that was not previously available, or arguments which could not have been put 'before the district court prior to its ruling. No matter what it purported to be, it is not a proper Rule 59(e) motion if it amounts to an attempt to address factual or legal issues that should have been addressed earlier or that were already addressed and decided.
Id. at ¶ 20,
[112]: Mr. Lokey argues that he reasonably relied on the district court's order
[T13] The district court's default judgment finally determined the parties' rights. Thereafter, the district court only had jurisdiction to decide appropriate post-judgment motions authorized by the rules. See 49 C.J.S. Judgments § 858 (updated April 2016); see also Ultra Res., Inc. v. Hartman,
IIL. Does this Court have jurisdiction to award, and is appellee entitled to recover, attorney fees incurred as a result of this appeal based on the contract which was the subject of the underlying action?
[114] Mr. Irwin argues that he is entitled to an award of attorney fees on appeal pursuant to the parties' dissolution agreement. Because we have found that we lack jurisdiction to determine the merits of Mr. Lokey's appeal, we must examine whether we have the jurisdiction to award attorney fees in light of our dismissal. See Clendenning v. Guise,
[T15] A party is entitled to recover attorney fees if expressly provided for by statute or contract. Kinstler v. RTB South Greeley, Ltd., LLC,
If any legal action is brought for the enforcement of this Contract or because of any alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this Contract, the prevailing party shall be entitled to recover reasonable attorney's fees and other costs incurred, in addition to any other relief to which a party may be entitled.
Mr. Irwin is the prevailing party and entitled to recover reasonable attorney fees incurred on this appeal. We will determine the appropriate sum to be awarded after counsel submits proper documentation. W.R.A.P. 10.06; see also GGV v. JLR,
CONCLUSION
[¶ 16] This Court lacks jurisdiction to entertain Mr. Lokey's appeal, and therefore we dismiss the appeal. Mr. Irwin is entitled to reasonable attorney fees pursuant to the parties' dissolution agreement, This amount shall be determined after submission of proper documentation by counsel.
Notes
. The court also denied all. of Mr. Lokey's motions, including his motion to set aside the default.
. In his reply brief, Mr. Lokey concedes that he did not file a motion pursuant to Rule 52(b).
. Mr. Lokey also concedes that he did not file a motion for a new trial under Rule 59(a).
. In Lovato v. State,
Concurrence Opinion
concurring in part and dissenting in part.
[¶ 17] I write separately because I disagree with the majority's determination that we lack jurisdiction. explained: We have previously
An appealable order is "[aln order affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment[.]" WRAP. 1.05(a). "[A] judgment or order which determines the merits of the controversy and leaves nothing for future consideration is final and appealable, and it is. not appeal-able unless it. does those things." Public Service Commission v. Lower Valley Power,608 P.2d 660 , 661 (Wyo.1980).
Steele v. Neeman,
[T18] I recognize that the document at issue was entitled "Entry of Default Judgment with Findings of Facts and Conclusions of Law," and that it was signed by the judge and entered in the court docket, However, the title of the document is not determinative in assessing whether it is an appealable order. We must review the contents of the entire document in order to determme its impact.
Most appellate courts, in addressing finall— ty, agree that the substance should be elevated over the form of the order. See generally 4 C.J.S. Appeal & Error § 946, pp. 265-66. Instead of emphasizing the name given to an action below, we should concentrate on the effect the order has on the parties' rights.
Stone v. Stone,
THE COURT HAS PREPARED THIS ORDER. IN THE EVENT THAT ANY PARTY OBJECTS TO THE FORM ' AND/OR CONTENT OF THIS ORDER, sUCH OBJECTING PARTY SHALL HAVE TEN (10) DAYS TO FILE AND SERVE - ANY OBJECTIONS, ALONG WITH AN ALTERNATE FORM OF ORDER. THE COURT RESERVES THE RIGHT TO RULE UPON ANY OBJECTIONS FILED BY ANY PARTY WITH,*318 ~_OR WITHOUT, 'A HEARING, FAIL URE TO FILE AND SERVE ANY OBJECTIONS, ALONG WITH AN ALTERNATE FORM OF ORDER, WITHIN . TEN. (10) DAYS FROM THE DATE HEREOF SHALL. BE DEEMED A COMPLETE WAIVER OF ANY AND ALL OBJECTIONS AS TO FORM OR CONTENT OF THIS ORDER.
(Capitalization and emphasis in original.) Based upon the clear» and unambiguous terms of the order, it would only become final if no objections to the order were filed within ten days,. Appellant filed his objections within the ten-day time period.
[¶ 19] The case before us now is more akin to 2-H Ranch Co., Inc. v. Simmons,
[T201] 2-H Ranch apparently failed <to pay the money and the Simmonses obtained a writ of execution against 2-H Ranch property, The property was subsequently sold at a sheriff's sale. Id. at 70O-7Tl,. Later, 2-H Ranch filed a motion to set aside the sheriff's sale, asserting that "the judgment entered by the district court would not permit the issuance of the writ of execution against its property." Id. at 71. The district court denied the motion, but we agreed with 2-H Ranch and reversed that decision. We explained:
The judgment entered by the dlstmct court : is certainly a curious. document; though so labeled, it is not a judgment and we cannot hold that it is under the Wyoming Rules of Civil Procedure. It does not provide the basis for the ultimate disposition of [the] property.
Id. We determined that the "so-called judgment" was "at best a conditional judgment that never had its conditions met."
Conditional judgments are judgments that do not become effective unless the conditions they contain have been complied with or that may be defeated or amended: by the performance of a subsequent act or occurrence. In Re Roney,139 F.2d 175 (7th Cir.1943). - Conditional judgments, however, are not final or appealable judgments under Rule 54(a), PR.C.P., until all contingencies have been removed. Id. at . 177; 10 Wright & Miller [Federal Practice and Procedure: Civil § 2651] at 14. Likewise, under Rule 54(a), W.R.C.P., where a judgment is defined as a final determination of the rights of parties to an action, a conditional judgment cannot be held to be a judgment until the contingencies contained within it have been removed.
2-H Ranch Co., Inc. at 72. We concluded that the conditional ' judgment with unmet contmgenmes did not resolve the rights of the parties and was not a judgment. It did not support the issuance of a writ of execution, "since such a writ is issued to enforce a judgment." Id. -
[¶ 21] Also instructive is the divorcee case of Walter v. Walter,
[¶ 22] The purported judgment in the case before us was a tentative decision. It expressly indicated that it could be altered or amended based on the parties' objections. It was also a conditional judgment that could not become effective until its contingencies were fulfilled. But whether characterized as tentative or conditional, the so-called default judgment did not determine the merits of the controversy, and it expressly left the parties' objections open for future considertation.
[¶ 23] The merits of this controversy were not finally determined until the district court entered the order denying Mr. Lokey's objections. The appealable order in this case was the order denying the objections, not the purported default judgment, Mr. Lokey correctly identified the appealable order in his notice of appeal, and that notice, filed within thirty days of the entry of that order, was timely, 'We have jurisdiction and this case should be resolved on the merits.
[¶ 24] If considered on the merits, I would determine that Appellant has failed to establish prejudicial error and that Appellee is the prevailing party, Accordingly, I would affirm and award reasonable attorney fees to Appellee based upon the language of the contract, f
FOX, J., delivers the opinion of the Court; BURKE, C.J., files a concurring in part and dissenting in part opinion.
. The objection filed by Appellant was not a post-judgment motion for reconsideration because no final judgment had been entered. Also, if the purported judgment was not an appealable order, it is unnecessary to determine whether the time for appeal had been tolled.