Norris v. Utah Dep't of Commerce

----ooOoo----

Richard Norris dba Maxtron Corporation,
Petitioner and Appellant,

v.

Utah Department of Commerce,
Division of Consumer Protection;
and Francine A. Giani, Director,
Respondents and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990894-CA

F I L E D
March 23, 2000

2000 UT App 80 -----

Third District, Salt Lake Department
The Honorable J. Dennis Frederick

Attorneys:
M. Karlynn Hinman, Salt Lake City, for Appellant Jan Graham and R. Paul Allred, Salt Lake City, for Appellees

-----

Before Judges Jackson, Bench, and Billings.

PER CURIAM:

Richard Norris appeals from a judgment after a trial de novo following informal proceeding before the Utah Department of Commerce. This case is before the court on a sua sponte motion for summary disposition.

Following a bench trial on July 8, Norris filed a motion for new trial on July 22, 1999. On September 14, 1999, the district court announced its denial of the motion in an unsigned minute entry that directed counsel for the Department to prepare a formal order. On the same date, the court entered its order denying Norris's complaint. Norris filed a notice of appeal on October 14, 1999. On October 21, 1999, the court entered a signed order denying the motion for new trial. Norris did not file a new notice of appeal.

This case falls squarely under Rule 4(b) of the Utah Rules of Appellate Procedure and must be dismissed for lack of jurisdiction. A timely motion for new trial suspends the running of the appeal time, and "the time for appeal for all parties shall run from the entry of the order denying a new trial." Utah R. App. P. 4(b). "A notice of appeal filed before the disposition of [the motion] shall have no effect" and "[a] new notice of appeal must be filed within the prescribed time measured from the entry of the order of the trial court disposing of the motion." Id. The motion for new trial in this case was filed after the announcement of the court's decision, but before the entry of a signed order. The motion was timely under Rule 59 of the Utah Rules of Civil Procedure and suspended the time for appeal. See Hudema v. Carpenter, 1999 UT App 290, ¶ 18-19, 989 P.2d 491 (holding motion for new trial under Rule 59 filed prior to entry of signed judgment is timely and tolls appeal time). Norris was required to file a new notice of appeal after entry of the signed order denying his motion for new trial.

The argument that the order denying the merits of the complaint also denied the motion for new trial is without merit. The order is silent on the motion for new trial and the minute entry of the same date specifically directed preparation of a separate order. See Swenson Assoc. Architects v. State, 889 P.2d 415, 417 (Utah 1994) (holding signed minute entry could not constitute order on post-judgment motion where it directed preparation of further order). Construing a notice of appeal as timely if filed after the announcement of the ruling on a motion for new trial, but before entry of a signed order, is contrary to the plain language of Rules 4(b) and 4(c) of the Utah Rules of Appellate Procedure. This court is precluded from suspending or modifying those rules. See Utah R. App. P. 2. Finally, Norris urges this court to deem his untimely notice of appeal to have been timely filed on October 21, 1999 based upon a claim of unique circumstances. There is no basis to exempt Norris from operation of rules that have been consistently applied in similar cases. See id. (rejecting argument that premature notice of appeal from post-judgment motion should be treated as filed on day final order is actually entered).

We dismiss the appeal for lack of jurisdiction.
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 

______________________________
Judith M. Billings, Judge