Hewitt v. Galetka

----ooOoo----

David Lee Hewitt,
Petitioner and Appellant,

v.

Hank Galetka,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990112-CA

F I L E D
April 22, 1999
  1999 UT App 132 -----

Third District, Salt Lake Department
The Honorable Anne M. Stirba

Attorneys:
David Lee Hewitt, Hurricane, Appellant Pro Se

-----

Before Judges Greenwood, Davis, and Jackson.

PER CURIAM:

This matter is before the court on its own motion for summary disposition on the ground that the appeal was not timely filed. We grant the motion and dismiss the appeal.

Pursuant to Utah R. App. P. 4(a) a notice of appeal must be filed "with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from." The final order appealed from was a memorandum decision entered on April 24, 1998. Pursuant to Utah R. App. P. 4(a), the deadline for filing an appeal from the judgment was May 24, 1998. The notice of appeal was not filed until February 2, 1999, more than thirty days after the entry of the memorandum decision, and, therefore, is untimely.(1)

Rule 4(b) provides that when a timely Utah R. Civ. P. 52 or 59 motion is filed, "the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion." Utah R. App. P. 4(b). A rule 52 or 59 motion must be filed and/or served within 10 days of the date of the order. Utah R. Civ. P. 52(b); 59(b) & (e). Appellant's motion to reconsider was filed 14 days after the memorandum decision dismissing his petition. Thus, assuming, arguendo, that appellant's motion could be construed as a rule 52 or 59 motion, it was not timely filed and, therefore, does not toll the running of the time limit for filing a notice of appeal from the April 24, 1998 order. See Burgers v. Maiben, 652 P.2d 1320 (Utah 1982).

Because appellant's notice of appeal was not timely filed, we have no alternative but to dismiss the appeal for lack of jurisdiction. See Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989).
 
 

______________________________
Pamela T. Greenwood,
Associate Presiding Judge
 
 

______________________________
James Z. Davis, Judge
 
 

______________________________
Norman H. Jackson, Judge

1. In his docketing statement filed on appeal, appellant identifies the judgment appealed from as the April 24, 1998 memorandum decision.  Not only is the notice of appeal untimely with respect to the April 24, 1998 judgment, it is untimely with respect to the memorandum decision denying his motion to reconsider, filed December 28, 1998.  The notice of appeal was not filed until February 2, 1999, six days past the deadline set forth in Utah R. App. P. 4(a).