Appeal from Superior Court, King (93-2-28130-7) County; Honorable Marsha J. Pechman, Judge. Judgment Date: 11-22-94. January 9, 1996, Motion Calendar, Department I.
Per Curiam.--This case involves Petitioner John Scannell's failure to file a timely notice of appeal in conformance with a recently amended Rule of Appellate Procedure. The Court of Appeals refused to grant Scannell's motion for an extension of time to file the notice of appeal. Scannell sought review from this court, but the Commissioner denied Scannell's motion. Scannell then filed a motion to modify the Commissioner. Department One of this court has considered Scannell's motion to modify, and we now modify the Commissioner's ruling and remand the
case to the Court of Appeals with directions to grant Scannell's motion for an extension of time to file his notice of appeal.
Scannell sought to appeal a superior court order signed on November 22, 1994. Thirty days after the superior court acted, Scannell filed a motion for order of indigency. He did not file a notice of appeal at that time because he thought the notice of appeal was not required until the motion for indigency was decided. His motion for indigency was scheduled to be heard before a department of this court on February 8, 1995. In anticipation of this, Scannell filed the notice of appeal on February 6, 1995, but he did not pay the required filing fee at that time. On February 9, 1995, Department Two denied Scannell's motion for indigency.
Scannell appeared in the Court of Appeals on March 24, 1995. A Court of Appeals commissioner threatened to impose sanctions on Scannell for his failure to pay the filing fee but granted a one-week extension of time to pay the fee. On March 31, 1995, Scannell paid the $250.00 filing fee. The commissioner then informed Scannell that the notice of appeal was untimely filed. Scannell submitted a motion for an extension of time for filing the notice of appeal. The Court of Appeals denied that motion. The Court of Appeals also denied Scannell's motion for reconsideration.
Scannell filed a petition for review with this court. The Clerk of this court determined the correct designation for the matter was "motion for discretionary review." In his motion, Scannell asserted the Rules of Appellate Procedure (RAP) tolled the 30-day requirement for filing a notice of appeal when a motion for indigency was pending. Alternatively, Scannell argued the RAPs were misleading, such that it was a miscarriage of justice to deny his motion to extend the time limit for filing the notice of appeal. On October 20, 1995, the Supreme Court Commissioner denied Scannell's motion for discretionary review, finding
that the RAPs clearly required filing of a notice of appeal within 30 days of the court act sought to be appealed. Scannell's notice of appeal was six weeks late. The Commissioner found that Scannell did not satisfy the RAP 18.8(b) standard for granting a motion to extend time. Finding no errors in the Court of Appeals' application of the Rules of Appellate Procedure, the Commissioner found no basis to grant review under RAP 13.5(b). Department One of this court has considered Scannell's motion to modify the Commissioner's ruling. We modify the ruling and remand the case to the Court of Appeals with orders.
This motion involves RAP 5.2(a) (notice of appeal) and RAP 15.2(a) (motion for order of indigency). RAP 5.2(a) establishes the time limit for filing a notice of appeal:
Except as provided in rules 3.2(e), 5.2(d) and (f), and 15.2(a), a notice of appeal must be filed in the trial court within the longer of (1) 30 days after the entry of the decision of the trial court which the party filing the notice wants reviewed, or (2) the time provided in section (e).
RAP 3.2(e) and RAP 5.2(d), (e), and (f) do not apply to Scannell's situation; thus, the only cross-referenced rule that could have possibly extended Scannell's time to file a notice of appeal is RAP 15.2(a) (motion for order of indigency). RAP 15.2(a) provides, in part:
A party seeking review partially or wholly at public expense must move in the trial court for an order of indigency. The motion must be supported by an affidavit setting forth the moving party's total assets; the expenses and liabilities of the party; a statement of the amount, if any, the party can contribute toward the expense of review; a statement of the expenses the party wants waived or provided at public expense; a brief statement of the nature of the case and the issues sought to be reviewed; a designation ...