Summary 2007 WY 208

Summary of Decision issued December 28, 2007

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Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

Case Name: Merchant v. Grey

Citation: 2007 WY 208

Docket Number: S-07-0060

Appeal from the District Court of Sweetwater County, Honorable Dennis L. Sanderson, Judge

Representing Appellant (Plaintiffs): Mary Elizabeth Galvan, Mary Elizabeth Galvan, Laramie, Wyoming; V. Anthony Vehar, Vehar Law Office, Evanston, Wyoming

Representing Appellee (Defendants): Patrick J. Crank, Attorney General; John William Renneisen, Deputy Attorney General; Theodore Rafael Racines, Senior Assistant Attorney General; Richard Rideout, Law Offices of Richard Rideout, Cheyenne, Wyoming.

Date of Decision: December 28, 2007

Issue: Whether the Supreme Court lacked jurisdiction because Appellants’ notice of appeal was not timely filed.

Facts: On December 18, 2006, the district court entered its “Order Granting Defendants’ Motions for Summary Judgment and Denying Plaintiffs’ Motion for Summary Judgment.” On February 1, 2007, the district court entered an “Order of Dismissal with Prejudice and Entry of Judgment.” On February 20, 2007, the Appellants filed their Notice of Appeal. Appellants filed their notice of appeal more than thirty days after the summary judgment order was entered. If that summary judgment order was an appealable order, then the Appellants’ notice of appeal was not timely. If the order of dismissal was the appealable order, then the Appellants’ notice of appeal was timely.

Holdings: W.R.A.P. 2.01(a) provides that an appeal from a trial court to an appellate court shall be taken by filing the notice of appeal with the clerk of the trial court within 30 days from entry of the appealable order. W.R.A.P. 1.03 states that timely filing of a notice of appeal is jurisdictional, and it has long been established that the Supreme Court lacks jurisdiction over, and must dismiss, an untimely appeal. W.R.A.P. 1.05(a) defines an appealable order to include an order affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment.
It is well-established that the denial of a motion for summary judgment is not an appealable order. The general reasoning is that, when a motion for summary judgment is denied, the parties proceed to trial, and the judgment reached after trial becomes the appealable order. In the present case, the district court both granted the Appellee’s motion for summary judgment, and denied the Appellants’ motion for partial summary judgment. If that order completely resolved the case, then it was an appealable order. An examination of the record showed that there was no issue left unresolved by the district court’s summary judgment order. The ruling left nothing for future consideration, and determined the action. It was, therefore, an appealable order.
After granting summary judgment, the district court took the additional step of entering an order dismissing the case. The record does not explain why the district court entered this superfluous order. That second order was unnecessary and unauthorized and therefore a nullity. As a nullity, it could not extend the time or toll the deadline for the Appellants to file their notice of appeal.
It does appear that the district court, sua sponte, requested Appellee’s counsel to prepare the order of dismissal. Under a principle sometimes called equitable tolling, some courts have held that untimely filing of orders may be excused in circumstances where a party has been prejudiced by reasonable reliance on an erroneous action taken by the trial court. Wyoming jurisprudence has soundly rejected this approach. It is difficult to understand how a party may reasonably rely on a court’s error in applying rules counsel is charged with knowing. If counsel is aware of the error reliance cannot be reasonable; on the other hand, ignorance of the rules is neither reasonable nor excusable.
For these reasons, it is concluded that the district court’s summary judgment order was an appealable order; that the district court’s second order, dismissing the action, was a nullity; that the Appellants’ notice of appeal was therefore untimely; and that the Appellants may not invoke any equitable tolling or unique circumstances to excuse the late filing.

Dismissed.

J. Burke delivered the opinion for the court.

Link: http://tinyurl.com/2ctoce .

By Kathy Carlson