Anderson v. Cache County

----ooOoo----

Lennert (Andy) Anderson and Janet Anderson,
Plaintiffs and Appellants,

v.

Cache County Corporation, et al.,
Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990884-CA

F I L E D
February 17, 2000
  2000 UT App 41 -----

First District, Logan Department
The Honorable Gordon J. Low

Attorneys:
Mark B. Hancey, Logan, for Appellants
Scott L. Wyatt and Patrick B. Nolan, Logan, for Cache County Defendants and Appellees
A.W. Lauritzen, Logan, for Bell Defendants and Appellees

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Before Judges Greenwood, Jackson, and Davis.

PER CURIAM:

This case is before the court on a motion for summary affirmance filed by the Cache County defendants, and on a sua sponte motion for summary dismissal. We grant the sua sponte motion and dismiss the appeal.

Lennert Anderson and Janet Anderson filed a notice of appeal from an August 30, 1999 order dismissing their claims against Cache County Corporation and its agencies and employees named as defendants. The claims against the remaining defendants Ronald J. Bell and Faye J. Bell remain pending in the district court.

A final appealable judgment "must dispose of the case as to all parties, and finally dispose of the subject-matter of the litigation on the merits of the case." Kennedy v. New Era Indust., Inc., 600 P.2d 534, 536 (Utah 1979). "The final judgment rule, which underlies . . . Utah Rule of Appellate Procedure 3, precludes a party from taking an appeal from any orders or judgments that are not final." A.J. MacKay Co. v. Okland Constr. Co., 817 P.2d 323, 325 (Utah 1991). Exceptions to the final judgment rule allow appeals to be taken from (1) orders properly certified as final by the trial court, pursuant to Rule 54(b) of the Utah Rules of Civil Procedure, and (2) interlocutory orders, pursuant to a grant of permission from the appropriate appellate court under Rule 5 of the Utah Rules of Appellate Procedure. See id. (discussing exceptions to final judgment rule). Neither exception applies in this case, and both parties agree that the appeal was not taken from a final order.

The Cache County defendants also seek summary affirmance on the merits of the appeal. Based upon our determination that the appeal is not taken from a final judgment, we must dismiss the appeal and cannot consider the county's motion. "The initial inquiry of any court should be to determine whether the requested action is within its jurisdiction." Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989). If the court concludes that it lacks jurisdiction, it "retains only the jurisdiction to dismiss the action." Id. The Andersons correctly note that the time for appeal from the August 30, 1999 order will not commence to run until the entry of final judgment. Accordingly, the dismissal of this appeal is without prejudice to a timely appeal from the dismissal of the Cache County defendants following the disposition of the claims against the remaining defendants and the entry of a final judgment.

We dismiss the appeal for lack of jurisdiction because it is not taken from a final appealable judgment.
 
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 
 
 

______________________________
James Z. Davis, Judge