Vonwald v. Plumb

Larry R. Vonwald,
Plaintiff and Appellant,

v.

Kevin Plumb,
Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990075-CA

F I L E D
May 27, 1999

1999 UT App 177 -----

Third District, Salt Lake Department
The Honorable Glenn K. Iwasaki

Attorneys:
Dennis K. Poole and Andrea Nuffer Godfrey, Salt Lake City, for Appellant
Larry R. Vonwald, Sandy, for Appellee -----

Before Judges Wilkins, Davis, and Jackson.

PER CURIAM:

Appellant Larry Vonwald files his fourth appeal in this case from an order awarding costs and attorney fees incurred in connection with the third appeal in this case. The appeal is before the court on a motion for summary disposition. We dismiss the appeal for lack of jurisdiction.

The trial court entered the order being appealed on October 5, 1998. An order is entered when it is signed by the trial court and filed with the clerk. See Utah R. Civ. P. 58(a) and (c). Vonwald incorrectly represented to the trial court in a motion for extension of the time for appeal that the order was entered on October 21, 1998, the date when it was entered in the registry of judgments. The thirty day time period prescribed by Utah R. App. P. 4(a) for initiating an appeal from the October 5 order expired on November 4, 1998. The motion for extension of the time for appeal must have been filed on or before December 5, 1998, thirty days after expiration of the prescribed time. See Utah R. App. P. 4(e). In addition, the motion could be filed ex parte only prior to November 4. Id. Based upon the entry of the order being appealed on October 5, the ex parte motion was untimely and should not have been considered by the trial court. Nevertheless, the trial court granted the motion on January 11, 1999 by signing an order prepared by Vonwald granting an extension to December 21, 1998.

However, even assuming for purposes of this motion that the extension motion was timely, the notice of appeal was untimely. Although the order granted an extension to December 21, 1998, Vonwald did not file his notice of appeal until January 21, 1999. Utah R. App. P. 4(e) limits the duration of any extension granted by the trial court to thirty days after expiration of the original thirty day appeal period or ten days from the date of the extension order, whichever is longer. Vonwald apparently assumed that regardless of the express language of the extension order, he could file a notice of appeal within ten days of its entry, the maximum allowed under rule 4(e). However, because the notice of appeal was not filed within the time expressly granted by the trial court, it was untimely. Having determined that the notice of appeal was untimely, we must dismiss the appeal for lack of jurisdiction.

Plumb's motion seeks dismissal for lack of jurisdiction or, in the alternative, summary affirmance on the merits. The motion also seeks sanctions under Utah R. App. P. 33 for a frivolous appeal. Our dismissal of the appeal for lack of jurisdiction precludes consideration of the motion for sanctions, which is based upon lack of substantive merit. This court previously awarded attorneys fees and costs incurred by Plumb in the third appeal based upon the terms of the earnest money agreement, and the present appeal is taken from the award made by the district court following remand from this court. Accordingly, we award Plumb his costs and attorneys fees reasonably incurred in defense of this fourth appeal based upon the provisions of the earnest money agreement because the underlying action was an action to enforce the agreement.

We dismiss the appeal for lack of jurisdiction and remand the case to the trial court for entry of an award of attorney fees and costs reasonably incurred in defending this appeal.
 
 

______________________________
Michael J. Wilkins,
Presiding Judge
 
 

______________________________
James Z. Davis, Judge
 
 

______________________________
Norman H. Jackson, Judge