Opinion
Docket No. 22994
Filed May 8, 1997 Reversed. See Wright v. Wright, 130 Idaho 918, January 7, 1998.
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Daniel T. Eismann, District Judge.
Appeal from order granting voluntary dismissal, dismissed.
Churchill Law Offices and Elam Burke, P.A., Boise, for appellant. Jeffery J. Ventrella argued.
Vernon K. Smith, Jr., Boise, for respondents.
Colt Wright appeals from an order granting his motion for voluntary dismissal, in order to challenge an earlier interlocutory order setting aside a default judgment. For reasons stated herein, we dismiss the appeal.
I.
FACTS AND PROCEDURE
David G. Wright and his wife (the Wrights) were the defendants in a civil action, which alleged that they had trespassed upon certain property and wrongfully removed sand, rock and gravel from that property. Idabanco, Inc., the corporation which held the receivership of the property, sought an injunction and monetary damages from the Wrights. Prior to trial, the Wrights' attorney moved to withdraw from representing them. In September 1988, the district court granted the attorney's motion and provided the Wrights twenty days to appear before the court, in writing, either personally or through new counsel. The Wrights did not comply with this requirement, and four months later, the district court entered a default judgment against the Wrights. No further action was taken in this case for approximately five years.
Idabanco assigned the uncollected default judgment to Colt Wright (Colt) in January 1994. Colt renewed the judgment and began collection proceedings. The Wrights responded with a motion to set aside the default judgment. They claimed that they did not receive proper notification, pursuant to Idaho Rule of Civil Procedure 11(b)(3), of their counsel's withdrawal or the impending default judgment. The district court granted the motion and set aside the default judgment in September 1994. Colt appealed.
The Idaho Supreme Court suspended the appeal because an order setting aside a default judgment is not an appealable order. Colt moved for a permissive appeal under Idaho Appellate Rule 12, which was denied by the Supreme Court.
Colt then asked the district court for a conditional dismissal of the action against the Wrights. Colt explained that a key witness had recanted earlier statements and two other witnesses were unavailable. Colt indicated:
[A]s a result of the recantation of this testimony and the unavailability of other witnesses, it is doubtful whether Colt Wright even has sufficient evidence to support the original claim for relief. He therefore risks either a dismissal of the claim after the presentation of Idabanco's case or the entry of an adverse judgment against him on the merits.
Thus, to prevent an adverse ruling on the merits, Colt sought dismissal of the action. The district court ordered dismissal "without prejudice to the right of appeal." Colt ostensibly appeals from the order of dismissal. The substance of his challenge on appeal, however, is to the order setting aside the default judgment.
II.
ANALYSIS
The Wrights argue that the order setting aside the default judgment is not properly before this Court for review. The Wrights claim that an appeal from the voluntary dismissal may not address the earlier order setting aside the default judgment.
The first question before this Court is whether the order granting Colt's motion for voluntary dismissal is an appealable, final order. It is well established, as a general rule, that a plaintiff may not pursue an appeal from an order of dismissal or nonsuit which the plaintiff requested. C. R. McCorkle, Annotation, Appellate review at instance of plaintiff who has requested, induced or consented to dismissal or nonsuit. 23 A.L.R. 2d 667 (1952). As this issue has not been squarely addressed by Idaho courts, we will look to the courts of other jurisdictions for guidance.
A plaintiff's voluntary dismissal of an action can be seen as having the effect of an absolute withdrawal of the plaintiff's claims and leaving the defendant as though the defendant had never been a party. Cook v. Stewart McKee Co., 157 P.2d 868, 870 (Cal.Ct.App. 1945). The reasoning follows that nothing is left of the case to be appealed. Lloyd v. Carnation Co., 301 S.E.2d 414, 416 (N.C.Ct.App. 1983), citing 5 JAMES WM. MOORE, et al., FEDERAL PRACTICE Section 41.05[6] (2d. ed 1982). Accordingly, some jurisdictions hold that a voluntary dismissal does not satisfy the finality requirement for appealability. Lake v. Sterling, 33 Cal.Rptr. 584, 585 (Cal.Ct.App. 1963) (dismissal does not hold the same rank as a final judgment); Shotkin v. Deehl, 148 So.2d 538, 539 (Fla. 1963) (order granting motion to dismiss is not a final order); Cork Insulation Sales Co., Inc. v. Torgeson, 775 P.2d 970, 973 (Wash.Ct.App. 1989) (voluntary nonsuit does not result in a final judgment).
In Idaho, a civil litigant may appeal from one of a number of specified orders of the trial court or from a final order or judgment. I.A.R. 11 (a). A final order is one which serves as a final determination of the rights of the parties. Nelson v. Whitesides, 103 Idaho 374, 376, 647 P.2d 1246, 1248 (1982). A voluntary dismissal, without prejudice, is not a final determination of the rights of the parties. However, a dismissal with prejudice may serve as such a determination and provide a basis for appeal. This is consistent with other jurisdictions, which have held that an order granting a dismissal is final and appealable if the action is dismissed with prejudice. Concha v. London, 62 F.3d 1493, 1507 (9th Cir. 1995) (plaintiff may appeal from a voluntary dismissal only when it is with prejudice to the right to commence another action for the same cause or otherwise subjects the plaintiff to prejudicial terms); EIR, Inc. v. Electronic Molding Corp., 540 So.2d 260 (Fla.Dist.Ct.App. 1989) (orders granting dismissal of a complaint without prejudice allow plaintiff to refile the action and are therefore not appealable).
Another basis for the nonappealability of a voluntary dismissal is that a plaintiff may not appeal from an order entered upon the plaintiff's request. The party whose total demands are granted in a judicial proceeding has no right of appeal. Cook, 157 P.2d at 870. The plaintiff can be seen as having waived the right to further proceedings before the trial or appellate courts. Jetton v. Jetton, 502 So.2d 756, 759 (Ala. 1987); Rubin v. Gordon, 165 So.2d 824, 825 (Fla.Dist.Ct.App. 1964); Cork Insulation, 775 P.2d at 973. This approach is consistent with the invited error doctrine of this state, which provides that errors consented to, acquiesced in, or invited are not reversible. See State v. Owsley, 105 Idaho 836, 838, 673 P.2d 436, 438 (1983); Frank v. Frank, 47 Idaho 217, 273 P. 943 (1929); Walling v. Walling, 36 Idaho 710, 214 P. 218 (1923); Lambert v. Hasson, 121 Idaho 133, 139, 823 P.2d 167, 173 (Ct. App. 1991).
A related theory is that, after a voluntary dismissal, a plaintiff lacks standing to appeal. A plaintiff may not appeal a voluntary dismissal because there is no involuntary or adverse judgment. Bell v. City of Kellogg, 922 F.2d 1418, 1421 (9th Cir. 1991); 8 JAMES WM. MOORE, et al., FEDERAL PRACTICE Section 41.40[11][b] (3d. ed 1997). Without an adverse impact, there is no standing to contest the voluntary dismissal. Bell, 922 F.2d at 1421; Lloyd, 301 S.E.2d at 416. The Ninth Circuit has ruled that a party may appeal from a voluntary dismissal with prejudice, although a plaintiff who receives a voluntary dismissal without prejudice lacks standing. Concha, 62 F.3d at 1507; Bell, 922 F.2d at 1422.
We find persuasive the reasoning of courts which hold that a voluntary dismissal may not be appealed, if that dismissal is without prejudice, but may be appealed if with prejudice. We find this approach preferable to an absolute ban on appeals from voluntary dismissals. In this case, Colt requested a dismissal, "without prejudice but with the right of appeal." The district court granted the motion for voluntary dismissal and provided that the dismissal was "without prejudice to the right of appeal." Colt's motion for dismissal came well after the filing of the Wrights' answer and was not the product of a stipulation. Accordingly, Colt could not dismiss the action without an order of the district court. I.R.C.P. 41(a)(1) and (2). Colt's motion for dismissal was governed by Rule 41(a)(2), which provides that "unless otherwise specified in the order, a dismissal under this paragraph is without prejudice." The order of dismissal in this case, which did not indicate otherwise, was without prejudice and was, therefore, not appealable under the general rule.
Many jurisdictions provide that an exception exists where the trial court issued an adverse ruling prohibiting recovery, or indicated that such a ruling would be forthcoming. In such cases, a dismissal made upon the plaintiff's request and otherwise not appealable may be considered on appeal. Sprinkle v. Walter L. Couse Co., 155 So.2d 609, 610 (Ala. 1963); Gravel v. Alaskan Village, Inc., 409 P.2d 983, 986 (Alaska 1966); Rex-Metallic Casket Co. v. Gregory, 104 So.2d 185, 187 (La. 1958); Wimberly, 117 S.E.2d 472, 474 (N.C. 1960); Farris v. United States Fidelity and Guaranty Co., 542 P.2d 1031, 1033 (Or. 1975). However, the district court in this case issued no ruling which precluded recovery. Although Colt argues that the likelihood that he could succeed at trial was limited, it was not limited by an action of the district court. The adverse ruling exception does not apply in this case, and the order granting Colt's motion for voluntary dismissal is not appealable.
The Wrights have prevailed in this appeal and are therefore entitled to an award of costs pursuant to I.A.R. 40. The Wrights have requested an award of appellate attorney fees under Idaho Code Section 12-121. An award of attorney fees to the prevailing party on appeal is appropriate when this Court is left with the abiding belief that the appeal has been brought or defended frivolously, unreasonably or without foundation. I.C. Section 12-121; I.A.R. 41; Excel Leasing Co. v. Christensen, 115 Idaho 708, 712, 769 P.2d 585, 589 (Ct.App. 1989). As noted above, this issue was one of first impression in Idaho. Accordingly, we conclude that Colt's pursuit of this action was not unreasonable. No attorney fees are awarded on appeal.
III.
CONCLUSION
By requesting the order of dismissal without prejudice, Colt Wright barred appeal from that order. We will not address the merits of his challenge to the order setting aside the default. Costs, but not attorney fees, are awarded to the respondents, Wrights, on appeal. The appeal is hereby dismissed.
Chief Judge WALTERS CONCURS.
I am in agreement with the general rule announced in the majority opinion that a voluntary dismissal with prejudice may be appealed while a voluntary dismissal without prejudice may not. I dissent, however, because I believe that the majority's application of the rule to the dismissal order at issue here is incorrect and is inconsistent with the principal authority upon which the majority opinion rests. In this case, the dismissal motion and order are ambiguous as to whether the dismissal was intended to be without prejudice to Colt Wright's ability to institute a new action. It is clear, however, that the practical effect of the order was to preclude any further adjudication of the claim, and therefore the order amounted to a disposition with prejudice and ought to be treated as such for purposes of appealability.
The majority opinion is based largely upon the Ninth Circuit Court of Appeals' decision in Concha v. London, 62 F.3d 1493 (9th Cir. 1995), but the majority does not adhere to that decision's analytical framework. When the analytical approach presented in Concha is applied here, it leads to a conclusion that the dismissal order should be treated as one with prejudice from which an appeal may be taken. In Concha, the plaintiffs filed a complaint in federal district court, alleging claims arising under both federal and state law. That action was dismissed. The plaintiffs thereafter filed a new action against some of the same defendants in state court, alleging claims arising under state law. The defendants removed this second action to the federal court, and the case was assigned to the same judge who had dismissed the initial action. The plaintiffs moved to remand the case to the state court. While that motion for remand was pending, the plaintiffs entered into a stipulation which provided that, if the motion to remand were denied, the plaintiffs would dismiss the action, "with plaintiffs preserving any and all appeal rights." The federal court denied the remand motion. Consistent with their stipulation, the plaintiffs then filed a notice purporting to dismiss the entire action "without prejudice" pursuant to F.R.C.P. 41(a)(1). After the court entered an order stating that the case was dismissed "with prejudice," the plaintiffs appealed, seeking to contest the denial of their motion for a remand. In considering the appeal, the Ninth Circuit undertook to clarify its law regarding when a voluntary dismissal of an action may be appealed. As the majority's opinion in the present case indicates, the Ninth Circuit held that plaintiffs may appeal from a voluntary dismissal with prejudice, but that a voluntarily dismissal without prejudice is ordinarily not a final judgment from which an appeal may be taken. Id. at 1507.
The Ninth Circuit limited this to dismissals that were not made pursuant to a settlement agreement intended to terminate the litigation. Concha, 62 F.3d at 1507.
The court's reasons for making this distinction and for concluding that the rule will not encourage a flow of inappropriate quasi-interlocutory appeals, are given at pages 1507 and 1508 of the opinion.
The court then examined the dismissal at issue to determine whether it should be treated as one with or without prejudice. The court noted that at first glance it appeared to be without prejudice (even though the order itself said "with prejudice") because the plaintiffs' notice of voluntary dismissal purported to dismiss the action without prejudice and because on appeal the plaintiffs maintained that their complaint was indeed dismissed without prejudice. The Ninth Circuit declined, however, to base its appealability decision on the label used by the plaintiffs in their notice of dismissal. Ultimately, the Court held that the dismissal should be treated as one with prejudice, thereby preserving the opportunity for an appeal. Because of its bearing upon the analogous circumstances in the present case, the Ninth Circuit's discussion warrants quotation at some length here.
We still must consider whether the Conchas Rule 41(a)(1) dismissal, though labelled a dismissal without prejudice, should nevertheless be treated as a dismissal with prejudice. If so, then we would have jurisdiction to consider the Conchas' appeal of the district court's denial of their motion to remand. In this unusual case, we conclude that the label attached to the dismissal is not dispositive. As we noted in Coursen, "the appealability of an order depends on its effect rather than its language." 764 F.2d at 1342 (citing LeCompte v. Mr. Chips, 528 F.2d 601, 603 (5th Cir. 1976).
There is no question that the Conchas' 41(a)(1) notice was intended to permit them to appeal the underlying order they considered determinative. Before the district court ruled on the Conchas' motion to remand, the parties entered into stipulations, providing that, if the motion were denied, the Conchas would dismiss their complaint "with plaintiffs preserving any and all appeal rights in the state action." This stipulation makes clear that the parties intended that the Conchas be afforded the right to appeal the denial of the motion to remand. Protecting the Conchas' right to appeal could only be accomplished through a dismissal with prejudice.
Moreover, it is apparent that the Conchas would have absolutely nothing to gain by filing a voluntary dismissal without prejudice. While a dismissal without prejudice might ordinarily permit them to file a similar action based on the same cause in either state court or federal court, in this case any such filing would be fruitless. The Conchas dismissed their action because they were unwilling to proceed in federal court. Thus, the right to file once again in district court would be of no practical benefit. Only the filing of a subsequent action in state court could offer any prospect of achieving the Conchas' objective. However, that prospect would be wholly illusory. If the Conchas were to file a subsequent action in state court, it would undoubtedly be removed forthwith, thereby putting the Conchas right back in federal court, in precisely the same position in which they were prior to the dismissal. Thus, a voluntary dismissal without prejudice could serve no conceivable purpose in this case.
It is therefore clear to us what effect the Conchas, and indeed all the parties, intended the dismissal to have. It was to be a dismissal that would permit an appeal — a dismissal with prejudice. We therefore treat the Conchas' 41(a)(1) notice as a dismissal with prejudice as to all defendants, and conclude that we have jurisdiction to consider whether the district court properly denied the Conchas' motion to remand.
Concha, 62 F.3d at 1508-09.
Application of a similar analysis in the case before us compels the conclusion that Colt Wright's voluntary dismissal was in effect a dismissal with prejudice. In his "Motion for Qualified Dismissal," Colt moved the court for "an order dismissing the action (thus dismissing the trial) but upon the conditions that (1) the Plaintiff's claims for relief will not be further prosecuted because the Assignee of the Plaintiff has been severely prejudiced in presenting the case by the non-availability of material witnesses, . . . the retraction of material testimony by a witness, and the lengthy passage of time between the filing of the Complaint and the first trial date, and which prejudice is not attributable to Colt Wright; (2) the Assignee may pursue an appeal from the Memorandum and Order [setting aside the default judgment] entered herein on September 20, 1994, . . . and (3) neither party be awarded attorney fees and costs pending the decision of the appellate court." In the motion, Colt acknowledged that if the case went to trial, he likely would not prevail because in the intervening nine years since commencement of the action one witness had recanted his testimony and other witnesses had left the state and were beyond the subpoena power of the court. Rather than going through the exercise of such a trial with the attendant delay and waste of judicial and private resources, Colt requested that the court dismiss the action "without prejudice but with the right of appeal preserved to Colt Wright and without the imposition of attorney fees and costs pending the decision of the appellate court." The defendants apparently did not oppose the motion. Accordingly, the district court entered an order "that the Motion for Qualified Dismissal is granted and, accordingly, this action is dismissed without prejudice to the right of appeal preserved to Colt Wright to pursue an appeal from that Memorandum and Order dated September 20, 1994 . . . and without the imposition of attorney fees and costs pending the decision of the Appellate Court."
From the language of the motion and the dismissal order, it is not entirely clear whether it was the intent of Colt Wright or of the district court to make the dismissal "without prejudice" in the usual sense or only without prejudice to the plaintiff's right to appeal the court's earlier decision setting aside the default judgment. However, like the stipulation in Concha, Colt Wright's motion makes it abundantly clear that he intended to effectuate a dismissal that would afford an opportunity to appeal a prior adverse ruling of the trial court. The district court shared this understanding and intent, as expressed in its dismissal order. Also like the plaintiffs in Concha, Colt Wright had nothing to gain from a dismissal without prejudice. The right to refile the action would be of no practical benefit since Wright had acknowledged that after the passage of nine years from institution of the lawsuit, he could not produce evidence to sustain his burden of proof at trial. It is also apparent that a second action would be barred by the statute of limitation. Colt Wright's only hope for success was an appellate challenge to the order setting aside the default judgment; an unappealable voluntary dismissal without prejudice could serve no purpose for him. Therefore, this Court should, like the Ninth Circuit in Concha, recognize that the practical effect of the order was a final adjudication of the case, i.e., a dismissal with prejudice, and implement the intent of the plaintiffs and the district court that the dismissal be of a type that would permit an appeal.
The complaint herein, filed in 1987, alleged a claim for damages arising from trespass and conversion. These causes of action are governed by the three-year limitation period specified in I.C. Section 5-218.
It is also significant that the majority opinion here, holding that a voluntary dismissal without prejudice is not appealable, addresses an issue of first impression in this state. If counsel for Colt Wright had been able to foresee this turn of Idaho law, he undoubtedly would have expressly requested a dismissal with prejudice since it was plainly his purpose to facilitate an appeal while avoiding the charade of an unnecessary and predictably unsuccessful trial. Accordingly, in my view, the majority decision not only misses the mark analytically but is also unjust to an appellant whose primary mistake was to be insufficiently prescient to predict the Court's decision today and to use the magic words "with prejudice" in his dismissal motion.