Cooper, et al v. M & J Construction, Inc, et al

Cooper, et al v. M & J Construction, Inc, et al

IN THE UTAH COURT OF APPEALS

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H. Arvene Cooper and Maurice N. Cooper, husband and wife,

Plaintiffs and Appellees,

v.

M & J Construction, Inc., a Utah corporation; Edwin M. Higley, aka Edwin Higley, and Afton C. Higley, husband and wife, individually,

Defendants and Appellees.

Lynn A. Jenkins,

Intervenor and Appellant.

AMENDED MEMORANDUM DECISION1

(Not For Official Publication)

Case No. 980219-CA

F I L E D

(November 5, 1998)

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Eighth District, Vernal Department

The Honorable Lyle R. Anderson

Attorneys: Lynn A. Jenkins, Bountiful, Appellant Pro Se

John C. Beaslin, Vernal, for Appellees Cooper

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Before Judges Davis, Wilkins, and Orme.

PER CURIAM:

This matter is before the court on appellees' motion to dismiss on the ground that the order Jenkins seeks to appeal is not final. We grant the motion and dismiss the appeal for lack of jurisdiction.

Jenkins filed his notice of appeal on May 4, 1998, and sought to appeal the trial court's April 27, 1998, order.(1) In

his docketing statement, Jenkins expanded the appeal to include

the trial court's February 4, 1998, ruling; February 20, 1998, ruling; February 24, 1998, ruling and order on affidavit of bias; February 25, 1998, minutes of law & motion hearing; February 25, 1998, notice of hearing on attorney fees; and April 27, 1998, order.

Jenkins filed a notice of appeal within 30 days of entry of the April 29, 1998, order denying his motion to move jurisdiction of Rule 63(b) affidavit. However, the notice was of no effect because the April 29th order was not a final, appealable order. For a judgment or order to be final, it "'must dispose of the case as to all the parties, and finally dispose of the subject-matter of the litigation on the merits of the case.'" In re Southern American Insurance Co., 930 P.2d 276, 278 (Utah Ct. App. 1996) (citations omitted). A final judgment "ends the controversy between the parties litigant." Kennedy v. New Era Industrial, Inc., 600 P.2d 534, 536 (Utah 1979). The April 29th order was not final and appealable. It merely clarified a single issue, which had previously been ruled upon, but did not end "the controversy between the parties litigant." Kennedy, 600 P.2d at 536.

Moreover, Jenkins did not file a timely notice of appeal from any of the other orders he seeks to appeal, and even if he had, it would have been ineffective since none of the earlier orders are final.

Accordingly, Jenkins's appeal is dismissed for lack of jurisdiction.

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James Z. Davis,

Presiding Judge

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Michael J. Wilkins,

Associate Presiding Judge

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Gregory K. Orme, Judge

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