Banner Bank v. Running MC Ranch ( 2017 )

FILED
DECEMBER 26, 2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
BANNER BANK, ) No. 34789-3-111
)
Respondent, )
)
V. )
)
RUNNING MC RANCH, a Washington )
Partnership; JESSE JAY MCCAW and ) UNPUBLISHED OPINION
KATE GARLAND MCCAW, and the )
marital community composed thereof, )
)
Appellants, )
)
DOUBLE J FARMS, LLC, a Washington )
Limited Liability Company, )
)
Defendant. )
LAWRENCE-BERREY, J. - Running MC Ranch, Jesse McCaw, and Kate McCaw
(collectively Appellants) appeal the September 7, 2016 judgment against them. That
judgment does not dispose of Banner Bank's claim against Double J Farms, LLC. Nor
does the judgment satisfy CR 54(b) certification requirements. Because such a judgment
is subject only to discretionary review, and because the circumstances that permit
discretionary review are not present here, we deny review of this appeal.
No. 34789-3-111
Banner Bank v. Running MC Ranch
FACTS
Factual background
On October 1, 2013, Running MC Ranch (MC Ranch) borrowed $1,200,000 from
Banner Bank. MC Ranch is a partnership composed of Jesse McCaw and Kate McCaw.
The original terms of repayment were set forth in a promissory note and security
agreement, and the McCaws guaranteed the repayment.
The loan terms were modified several times. The loan matured on November 1,
2015. MC Ranch and the McCaws defaulted. On November 20, 2015, the McCaws
formed Double J Farms, LLC (Double J). The McCaws are the sole owners and
managers of Double J.
Banner Bank filed suit against MC Ranch and the McCaws to collect the unpaid
balance, together with reasonable attorney fees and costs, and to foreclose on its security.
Banner Bank also brought a claim against Double J on the theory that Double J was a
successor in interest to MC Ranch.
Procedural background
Banner Bank moved for summary judgment against all defendants. The
defendants filed oppositional pleadings. Before the summary judgment hearing, Banner
Bank prepared a proposed order granting summary judgment and a proposed judgment.
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The trial court granted Banner Bank's motion as to MC Ranch and the McCaws.
The trial court reserved ruling on Banner Bank's motion as to Double J.
Banner Bank did not want to delay entry of an order or a judgment. It therefore
struck references to Double J from its prepared pleadings, and asked the trial court to sign
them. The defendants objected on a number of grounds.
The trial court eventually instructed Banner Bank to present its proposed pleadings
in accordance with the local rule. The local rule required Banner Bank to file and serve
its proposed pleadings, and allowed the defendants 15 days to object and to file and serve
their own proposed pleadings.
On September 7, 2016, Banner Bank filed and served its proposed pleadings,
which were the same interlineated pleadings it had requested the trial court to sign. That
same day, and in apparent conflict with the local rule, the trial court signed the proposed
pleadings. In addition, the trial court denied Banner Bank's summary judgment motion as
to Double J.
Both the order and the judgment refer to the judgment as "final," and permit
Banner Bank to foreclose on its collateral and institute other collection remedies.
MC Ranch and the McCaws appeal.
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Banner Bank v. Running MC Ranch
ANALYSIS
A. THE JUDGMENT IS NOT APPEALABLE, AND THE CIRCUMSTANCES PERMITTING
DISCRETIONARY REVIEW ARE NOT MET
RAP 2.2 lists the decisions of the superior court that may be appealed.
RAP 2.2( d) provides in relevant part:
Multiple Parties or Multiple Claims or Counts. In any case with
multiple parties or multiple claims for relief, ... an appeal may be taken
from a final judgment that does not dispose of all the claims or counts as to
all the parties, but only after an express direction by the trial court for entry
of judgment and an express determination in the judgment, supported by
written findings, that there is no just reason for delay. The findings may be
made at the time of entry of judgment or thereafter on the court's own
motion or on motion of any party .... In the absence of the required
findings, determination and direction, a judgment that adjudicates less than
all the claims or counts, or adjudicates the rights and liabilities of less than
all the parties, is subject only to discretionary review ....
To be appealable, judgments determining fewer than all the issues must comply
with the requirement of RAP 2.2(d), which reiterates the requirements of CR 54(b). To
comply with CR 54(b ), a judgment must satisfy four requirements:
"( 1) [There must be] more than one claim for relief or more than one party
against whom relief is sought; (2) an express determination that there is no
just reason for delay; (3) written findings supporting the determination that
there is no just reason for delay; and (4) an express direction for entry of the
judgment."
Fluor Enters., Inc. v. Walter Constr., Ltd., 141 Wn. App. 761, 767, 172 P.3d 368 (2007)
(quoting Ne/bro Packing Co. v. Baypack Fisheries, LLC, 101 Wn. App. 517, 523, 6 P .3d
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22 (2000)). "' There must be something in writing, certified by the judge who tried the
case, which an appellate court can look at and determine immediately whether the appeal
is timely."' Pepper v. King County, 61 Wn. App. 339,346, 810 P.2d 527 (1991) (quoting
Schiffman v. Hanson Excavating Co., 82 Wn.2d 681,690,513 P.2d 29 (1973)).
Absent unusual circumstances, "entry of a final judgment should await the
resolution of all claims for and against all parties." Fluor Enters., 141 Wn. App. at 767.
There are reasons we prefer not to treat such judgments as final and appealable. One
reason is to avoid a multiplicity of appeals. Id. at 769. Another reason is to avoid the
disruptive effects of enforcement and appellate activity while trial court proceedings are
still occurring. Id.
In the present case, the trial court failed to certify that there was no just reason for
delay. Banner Bank contends that the order, the judgment, and the letter ruling contain
express written findings that support compliance with CR 54(b). We disagree. These
documents contain no indication that the trial court considered CR 54(b) or attempted to
ascertain whether no just reason for delay existed. Although the trial court order and
judgment allow Banner Bank to execute on the judgment, there is no express
determination that there is no just reason for delay. For this reason, and notwithstanding
language in the order or the judgment, we do not deem the judgment a final judgment.
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RAP 5 .1 (c) provides that a notice of appeal of a decision that is not appealable will
be treated as a notice for discretionary review. However, the circumstances under which
discretionary review would be permitted do not apply to this case. See RAP 2.3(b ). The
superior court has not committed an obvious error that would render further proceedings
useless, nor committed a probable error that alters the status quo, nor has the superior
court so far departed from the accepted and usual course of judicial proceedings. See
RAP 2.3(b ). Thus, discretionary review is denied.
Appellants ask that the judgment be vacated for failure to comport with CR 54(b ).
CR 54(b) does not contemplate vacation of an order that fails to make such a
determination. Rather, the effect is that the judgment is not deemed final until all claims
against all defendants have been adjudicated. Because the appeal is premature, we
remand to the trial court for further proceedings. If the trial court determines that the
September 7, 2016 judgment is final and that there is no just reason for delay, it should
make written findings to that effect in accordance with CR 54(b ).
B. WE DECLINE TO ADDRESS THE PARTIES' SUBSTANTIVE ARGUMENTS
Appellants argue that since the judgment is not final, Banner Bank may not
execute on the judgment. Since we must dismiss this appeal because the judgment lacks
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required certification language, we do not address this or any other argument. We cannot
both dismiss an appeal because it was improperly filed and rule on its merits.
C. REASONABLE ATTORNEY FEES, EXPENSES AND COSTS
Banner Bank requests an award of attorney fees, expenses and costs under
RAP 18.1. The promissory note and the security agreement specify that Banner Bank is
entitled to recover its reasonable attorney fees and costs in the event it prevails in
litigation.
RCW 4.84.330 dictates that where a contract specifically provides for attorney fees
and costs, the "prevailing party" shall be entitled to such fees and costs. The statute
defines "prevailing party" as "the party in whose favor final judgment is rendered."
RCW 4.84.330.
No final judgment has been rendered. Therefore, Banner Bank is not the
prevailing party. This does not preclude Banner Bank from requesting reasonable
attorney fees in the trial court if and when it does prevail. To the extent Banner Bank
reasonably incurred attorney fees on appeal, the trial court may grant those fees under the
lodestar method. Crest Inc. v. Costco Wholesale Corp., 128 Wn. App. 760, 773, 115 P.3d
349 (2005).
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But because both parties requested affirmative relief, and we have declined to
award such relief, we exercise our discretion and decline an award of appellate costs to
Banner Bank or to Appellants. RAP 14.2.
CONCLUSION
Because a final judgment has not yet been properly entered and we do not grant
discretionary review, we remand to the trial court for further proceedings.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
WE CONCUR:
Fearing, c.i Pennell, J.
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