§ 5.5 Time Allowed to File Notice

• Jurisdiction: Washington

§5.5 TIME ALLOWED TO FILE NOTICE

Failure to file a notice of appeal or notice for discretionary review within the time provided by RAP 5.2 will almost certainly result in denial of the right to appeal or opportunity for discretionary review.

(1) Introduction

The strict requirement that a party timely file a notice is perhaps the most significant exception to the policy statement in RAP 1.2(a) that the rules shall be liberally interpreted to promote justice and facilitate the decision of cases on the merits.

It is no longer true that filing a timely notice is actually "jurisdictional," as it once was. See Mackey v. Champlin, 68 Wn.2d 398, 399, 413 P.2d 340 (1966) (prerule case) ("We have steadfastly held that compliance with [the rule] requiring the filing of a notice of an appeal . . . within thirty days . . . is a jurisdictional step in the perfection of an appeal."). However, a timely notice is necessary for the appellate court to exercise its authority to review a trial court decision.

RAP 18.8 gives appellate courts the right to waive or alter the rules to serve the ends of justice, but it restricts that discretion with regard to extensions of time to file a notice of appeal or notice for discretionary review. The appellate court will grant an extension "only in extraordinary circumstances and to prevent a gross miscarriage of justice." RAP 18.8(b). Indeed, the rule states, "The appellate court will ordinarily hold that the desirability of finality of decisions outweighs the privilege of a litigant to obtain an extension of time under this section." RAP 18.8(b) has also been applied to subsequent notices by other parties, including notices for cross review, not just to the first-filed notice of appeal or notice for discretionary review. Bostwick v. Ballard Marine, Inc., 127 Wn. App. 762, 774-75, 112 P.3d 571 (2005).

Practice Tip: Don't be lulled into complacency if you are a respondent Upon receiving a notice of appeal or notice for discretionary review (if not before), promptly determine whether you intend to seek affirmative relief requiring a notice for cross review.

Comment: RAP 18.8(b) also applies to and restricts extensions of time for filing a petition for review or motion for discretionary review to the Supreme Court (see Chapter 18) or a motion for reconsideration (see Chapter 16). For a general discussion of RAP 18, see Chapter 26 of this deskbook.

"Extraordinary circumstances" justifying an extension of time are exceedingly rare. Negligence of a party or the attorneys is not sufficient. For instance, Division II refused to excuse a notice filed 10 days late after entry of a $17.76 million judgment against the state on the ground that the trial attorney had "no recollection" of receiving the notice of presentation of judgment and would not have intentionally ignored such a notice. Beckman ex rel. Beckman v. State, 102 Wn. App. 687, 694-95, 11 P.3d 313 (2000) ("Negligence, or the lack of 'reasonable diligence,' does not amount to 'extraordinary circumstances.'"). The Court of Appeals denied an extension to file a notice of appeal, again 10 days late, on the ground that two trial attorneys had left the firm after judgment was entered and the appellate attorney had an unusually heavy workload. Reichelt v. Raymark Indus., Inc., 52 Wn. App. 763, 766, 764 P.2d 653 (1988). As noted in Reichelt, cases in which courts have found extraordinary circumstances and granted extensions of time to file a notice of appeal have been limited to those in which the party filed a notice within the time required but the notice was otherwise defective and the defect was due to circumstances beyond the party's control. Id. at 765.

A party and its counsel have the duty to monitor the docket, and the failure to provide notice of the judgment will not excuse a late notice. Bostwick, 127 Wn. App. at 775-76 (rejecting respondent's argument that trial court's failure to provide notice when sanctions order was entered constituted extraordinary circumstances justifying extension of time to file cross review; trial court had no duty to inform parties of entry of order); Beckman, 102 Wn. App. at 695 (that plaintiffs' attorneys failed to give state notice that judgment had been entered did not excuse late notice; plaintiffs' attorneys gave state notice of presentation of judgment and were not required to do more). In at least one case, however, the Court of Appeals permitted an untimely appeal that was not challenged by the respondent, without any analysis of extraordinary circumstances. State v. Dallman, 112 Wn. App. 578, 581 n.4, 50 P.3d 274 (2002), review denied, 148 Wn.2d 1022 (2003).

Practice Tip: Many superior courts enter appealable orders, including final judgments, without the benefit of a hearing in open court Counsel has an obligation to monitor the court's docket to determine the date of entry of any order triggering a right to appellate review.

(2) Time allowed to file notice of appeal

Generally, a notice of appeal must be filed within 30 days after entry of the decision the party wants reviewed. RAP 5.2(a). More precisely, the notice of appeal must be filed within 30 days of the entry of the decision conferring the right to appeal, which (as discussed in §5.6, below) may bring up other decisions for review. The time will be extended by the timely filing of certain trial court motions listed in RAP 5.2(e), as discussed in §5.5(6) below. RAP 5.2(a). The time will not be extended by any such motion that is not timely filed. See Schaefco, Inc. v. Columbia River Gorge Comm'n, 121 Wn.2d 366, 368, 849 P.2d 1225 (1993).

The "date of entry of a trial court decision" is determined by CR 5(e) and 58. RAP 5.2(c). An appeal cannot be taken until an appealable order is entered. Dix v. ICT Grp., Inc., 125 Wn. App. 929, 933, 106 P.3d 841 (2005) (citing Chandler v. Doran Co., 44 Wn.2d 396, 400, 267 P.2d 907 (1954) (prerule case)), aff'd, 160 Wn.2d 826, 161 P.3d 1016 (2007). A memorandum opinion is not a formal order from which an appeal can be taken and from which the time for notice of appeal begins to run. See Corrigal v. Ball & Dodd Funeral Home, Inc., 89 Wn.2d 959, 961, 577 P.2d 580 (1978). Appeal need not be taken from a verbal dismissal and can await a written order. State v. Rundquist, 79 Wn. App. 786, 792, 905 P.2d 922 (1995), review denied, 129 Wn.2d 1003 (1996).

RAP 5.2(a) lists several specific exceptions to the general 30-day rule, which are provided by RAP 3.2(e) (regarding substitution of parties; see §5.2(2) above); RAP 5.2(d) (regarding times set by statute; see §5.5(5) below); and RAP 5.2(f) (regarding subsequent notice by other parties; see §5.5(7) below).

A notice of appeal from a judgment resolving fewer than all claims against all parties in an action with multiple parties or multiple claims is timely if filed within 30 days of entry of the trial court's written findings under CR 54(b) that "there is no just reason for delay" of an immediate appeal, regardless if judgment is filed earlier. RAP 2.2(d). If a notice of appeal is not filed within 30 days from the entry of findings, the appeal may not be taken from that CR 54(b) judgment, but an appeal can nevertheless be taken from a final judgment (resolving all claims against all parties), including the decision that was subject to the entry of findings. Fox v. Sunmaster Prods., Inc., 115 Wn.2d 498, 504-06, 798 P.2d 808 (1990) (plaintiff obtained CR 54(b) order upon dismissal of defendant A but did not appeal dismissal until after later dismissal of defendant B, which resolved all claims against all parties; held that dismissal of defendant A would be reviewed on appeal).

(3) Time allowed to file notice for discretionary review

Generally, a notice for discretionary...