Briggs v. Valley Spas, Inc.

Briggs v. Valley Spas, Inc. Case No. 20010647-CA

IN THE UTAH COURT OF APPEALS

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Larry Briggs,
Plaintiff and Appellant,

v.

Valley Spas, Inc.; Salt Lake Valley Spas, Inc.; Lowell Brown; and Valley Spa I, Inc.,
Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010647-CA

F I L E D
(December 20, 2001)

2001 UT App 410

 

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Third District, Salt Lake Department
The Honorable Stephen L. Henriod

Attorneys: 
Steven C. Russell and Gregory Brent Smith, Salt Lake City, for Appellant
Steven E. McCowin, Salt Lake City, for Appellees

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Before Judges Greenwood, Billings, and Davis.

PER CURIAM:

This matter is before the court on a sua sponte motion for summary dismissal because the trial court improperly granted certification under Rule 54(b) of the Utah Rules of Civil Procedure. Appellant agrees that the trial court improperly certified the order as final for purposes of appeal under rule 54(b) due to the factual overlap of the claims on appeal and those claims remaining before the trial court. Appellees concede that there is factual overlap with the claims remaining before the trial court, yet assert that the trial court did not improperly certify the order. Appellees have also filed a motion for summary affirmance asserting that "the grounds for review are so insubstantial as not to merit further proceedings or consideration by the appellate court." Utah R. App. P. 10(a)(2). Consequently, appellees ask us to deny the sua sponte motion and grant their summary disposition motion.

This case arose from a dispute over a hot tub spa and gazebo appellant purchased at the State Fair. Appellant later discovered that appellees no longer carried the specific spa unit purchased. Various negotiations between the parties deteriorated, and appellant filed a complaint. Subsequently, appellees filed a counterclaim and a motion for summary judgment to dismiss the complaint. The trial court granted the summary judgment motion dismissing appellant's complaint. However, resolution of the counterclaim is still pending before the trial court. The counterclaim arises out of the same facts as the original complaint, resulting in factual overlap between the matter on appeal and the matter remaining before the trial court. Due to the factual overlap of the claims remaining before the trial court and those asserted on appeal, the trial court improperly granted certification under rule 54(b). See Bennion v. Pennzoil Co., 826 P.2d 137 (Utah 1992); Kennecott Corp. v. Utah State Tax Comm'n, 814 P.2d 1099, 1103 (Utah 1991) ("When this factual overlap is such that separate claims appear to be based on the same operative facts or on the same operative facts with minor variations, they are held not to constitute separate claims for rule 54(b) purposes.").

The appeal is dismissed without prejudice to refiling an appeal after the resolution of all the claims pending before the trial court. Because our resolution leaves this court without jurisdiction, we do not consider appellees' motion for summary disposition.

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Pamela T. Greenwood, Presiding Judge

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Judith M. Billings, Judge

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James Z. Davis, Judge