Intermountain Specialties v. Wadsworth Const.

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Intermountain Specialties v. Wadsworth Const., Case No. 20000111-CA, Filed May 4, 2000 IN THE UTAH COURT OF APPEALS

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Intermoutain Specialties, Inc.,
Plaintiff and Appellant,

v.

Calvin L. Wadsworth Construction Company, Inc.;

and Fidelity and Deposit Company of Maryland,

Defendants and Appellees.

MEMORANDUM DECISION

(Not For Official Publication)



 

Case No. 20000111-CA



 

F I L E D

May 4, 2000

2000 UT App 133

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Third District, Salt Lake Department

The Honorable Sandra Peuler
 

Attorneys:

Steven D. Crawley, Salt Lake City, for Appellant

Wilford A. Beesley, Stanford P. Fitts, Salt Lake City, for Appellees

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Before Judges Bench, Billings, and Davis.
 

PER CURIAM:
 

This matter is before the court on appellees' motion for summary dismissal. We grant the motion and dismiss the appeal.
 

An appeal may be taken from all final orders and judgments of the district court. See Utah R. App. P. 3(a). A notice of appeal must be filed within thirty days of entry of the judgment being appealed. See Utah R. App. P. 4(a). If a timely motion under the Utah Rules of Civil Procedure is filed in the trial court by any party . . . (2) under Rule 52(b) to amend or make additional findings of fact, . . . ; (3) under Rule 59 to alter or amend the judgment; or (4) under Rule 59 for new trial, 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). The notice of appeal was filed February 3, 2000, more than thirty days after the entry of the order granting summary judgment and attorney fees on November 23, 1999. Accordingly, absent a timely filed Rule 52(b) or 59 motion, the notice of appeal is untimely.

Appellee correctly notes that a Utah Code of Judicial Administration Rule 4-504 objection does not suspend the running of the appeal period under Rule 4(b). However, this court has stated that "[t]he substance of a motion, not its caption, is controlling." DeBry v. Fidelity Nat'l Title Ins. Co., 828 P.2d 520, 522 (Utah Ct. App. 1992). Appellant, without citing to any legal authority or providing any helpful comparative case analysis, urges this court to treat its Rule 4-504 objection as a motion under Rule 4(b) that suspends the time for filing a notice of appeal. Appellant does not specify whether it considers its objection to be a Rule 52(b) or a Rule 59 motion, merely stating in conclusory fashion that "when a trial court has an objection to an order and judgment before it, the time for filing a notice of appeal does not begin to run until the trial court has ruled on the objection."

In DeBry, the appellants had filed "Objections and Additions to Proposed Findings of Fact and Conclusions of Law" five days after the entry of judgment. The judgment, in turn, was not entered until after the Rule 4-504 five-day objection period had run. This court ruled that the trial court did not err in treating the appellants' objections as a Rule 52(b) motion, stating that "[r]egardless of how it is captioned, a motion filed within ten days of the entry of judgment that questions the correctness of the court's findings and conclusions is properly treated as a post-judgment motion under either Rule 52(b) or 59(e)." Id. at 522-23; see also Regan v. Blount, 1999 UT App 154,¶5, 978 P.2d 1051, 1053 (Utah Ct. App. 1999) (stating if motion challenges determinations of fact, evidentiary rulings or legal conclusions, it is a Rule 52(b) or 59 motion); Reeves v. Steinfeldt, 915 P.2d 1073, 1077 (Utah Ct. App. 1996) (stating objection is in substance a Rule 59 motion inasmuch as it asks court to alter findings or amend conclusions and judgment).

Appellant's objection to the order objects solely to the amount of attorney fees awarded to appellee, arguing that some of the fees submitted by appellee were not incurred to defend against the lawsuit and thus were not allowed under the governing statute. Unlike the objections in Debry, appellant's objection does not question the correctness of, or ask the court to alter or amend, its findings and conclusions. Accordingly, we will not treat the objection as a Rule 52(b) or 59 motion that suspends the time for filing an appeal from the November 23, 1999 order.

Moreover, the court's order was signed and entered after appellant filed its objection and after appellee filed its reply thereto along with the proposed order. These circumstances suggest that the court fully considered and denied the objection by necessary implication when it signed the proposed order. SeeRegan, 1999 UT App 154,¶7, 978 P.2d at 1054 (motions may be disposed of expressly or by necessary implication). Thus, even if we were to treat the objection as a Rule 52(b) or Rule 59 motion, a final order disposing thereof was entered on November 23, 1999, rendering the notice of appeal untimely. The appeal is dismissed.
 
 
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 
 
 

______________________________
James Z. Davis, Judge

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