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Bostwick v. Ballard Marine5/31/2005
cross appeal would be a gross injustice.
Ballard Marine claims that its cross appeal was untimely because it did not receive notice of the entry of the order 'as required by the local rule.' That rule states in relevant part: '{f}or motions without oral argument, the moving party shall also provide the Court with pre-addressed stamped envelopes addressed to each party/counsel.' But nothing in the rule requires the court to notify a party that an order has been entered.
A similar argument was rejected in Beckman ex rel. Beckman v. DSHS, where the State missed the deadline for appealing a multi-million dollar judgment. The court pointed out that ' Plaintiffs' counsel gave the State notice of presentation of the proposed judgments. This was all Plaintiffs' counsel was required to do; the State was then obligated to monitor the actual entry of the judgments.'
Here, Bostwick filed and served his notice of appeal on December 18, 2003. Under RAP 5.2(f), Ballard Marine had 14 days after service of that notice in which to seek relief from the trial court's decision, including the sanction order. Ballard Marine failed to make any inquiry as to the status of pending orders. Its lack of diligence in monitoring entry of an order on a pending motion does not amount to 'extraordinary circumstances.' 'This rigorous test has rarely been satisfied in reported case law.' In each of the cases where it has, the moving party actually filed the notice of appeal within the 30-day period but some aspect of the filing was challenged. That is not the case here.
The commissioner correctly denied Ballard Marine's motion. Because it was untimely filed and no extraordinary circumstances exist to extend the bar date, we do not reach the merits of Ballard Marine's cross appeal. We affirm the summary judgment order in part, reverse in part, and remand for further proceedings. We deny the motion to revise the commissioner's ruling.
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