from the District Court of Sublette County The Honorable
Marvin L. Tyler, Judge
Representing Appellant: Gerard R. Bosch and M. Alison Floyd
of Law Offices of Jerry Bosch, LLC, Wilson, Wyoming. Argument
by Mr. Bosch.
Representing Appellee: Tom C. Toner of Yonkee & Toner,
LLP, Sheridan, Wyoming.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
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.
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?
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?
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 appellee, to Mr.
Lokey. On December 8, 2014, Mr. Irwin filed a complaint
against Mr. Lokey alleging that Mr. Lokey had neglected to
service the debts on property granted to him through the
dissolution agreement, and that, as a result, Mr. Irwin had
been damaged. Irwin requested that the district court enter a
declaratory judgment relieving him of his obligations under
the agreement, arguing that Mr. Lokey had materially breached
its terms. Mr. Lokey was served with the complaint in
California on December 18, 2014, but did not answer within
thirty days as required by W.R.C.P. 12(a). On January 22,
2015, Mr. Irwin filed a request for an entry of default
alleging that Mr. Lokey had not answered or otherwise pled as
required. The clerk of the district court entered the default
on the same day. Mr. Irwin then moved for a default judgment
in accordance with W.R.C.P. 55(b) and requested a hearing.
The district court set the hearing on the default judgment
for March 12, 2015. On March 11, 2015, Mr. Lokey's
attorney entered an appearance and moved for a continuance
via fax filing. Just before the hearing on the morning of
March 12, 2015, Mr. Lokey filed a number of motions,
including a motion to set aside the entry of default.
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 last paragraph of the judgment
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. FAILURE
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.) 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
23, 2015, designating the district court's order denying
his objections as the decision from which he was appealing.
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?
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., 2014 WY 90, ¶ 14, 331 P.3d 1174, 1178 (Wyo.
2014); Plymale v. Donnelly, 2006 WY 3, ¶ 4, 125
P.3d 1022, 1023 (Wyo. 2006). "We pursue that inquiry de
novo because the limits placed upon the exercise of our
appellate powers are matters of law." Waldron v.
Waldron, 2015 WY 64, ¶ 11, 349 P.3d 974, 977 (Wyo.
2015) (citing In re Estate of Nielsen, 2011
WY 71, ¶ 11, 252 P.3d 958, 961 (Wyo. 2011)). We find
that we lack jurisdiction to consider Mr. Lokey's appeal
and must dismiss.
The Wyoming Rules of Appellate Procedure set forth the
requirements to perfect an appeal. Rule 2.07 declares that a
notice of appeal must "[i]dentify the judgment or
appealable order" from which an appeal is taken. An
appealable order is defined as "[a]n order affecting a
substantial right in an action, when such order, in effect,
determines the action and prevents a judgment[.]"
We have held that an appealable order under Rule 1.05(a) has
"three necessary characteristics. . . . It must affect a
substantial right, determine the merits of the controversy,
and resolve all outstanding issues." In re
E.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 question 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
Waldron, 2015 WY 64, ¶ 14, 349 P.3d at 977-78
(quoting Estate of Dahlke ex rel. Jubie v. Dahlke,
2014 WY 29, ¶ 31, 319 P.3d 116, 124 (Wyo. 2014)). In
this case, the appealable order was the default judgment. It
affected the substantial rights of the parties, determined
the merits of the controversy, and resolved all outstanding
issues, leaving nothing for future consideration. Pub.
Serv. Comm'n v. Lower Valley Power & Light,
Inc., 608 P.2d 660, 661 (Wyo. 1980); W.R.C.P. 54(a) (A
judgment "is the final determination of the rights of
the parties in action."). Mr. Lokey, however, did not
appeal from the district court's default judgment.
Instead, he appealed from the court's order denying his
objections. This was not an appealable order as defined by
the rules and this Court, as it did nothing more than affirm
the court's prior ruling. The error, if ...