Watkins v. BoP&P

----ooOoo----

Charles Watkins,
Petitioner and Appellant,

v.

Utah Board of Pardons and Parole;
and Hank Galetka, Warden,
Respondents and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 991092-CA

F I L E D
January 19, 2001 2001 UT App 18  -----

Third District, Salt Lake Department
The Honorable Anne M. Stirba

Attorneys:
Charles Watkins, Draper, Appellant Pro Se
Mark L. Shurtleff and James H. Beadles, Salt Lake City, for Appellees

-----

Before Judges Jackson, Billings, and Orme.

PER CURIAM:

The trial court dismissed petitioner's claims against the board of pardons on October 13, 1998. On November 23, 1998, the trial court dismissed the entire petition. Petitioner filed an objection to the order on November 23, 1998. The trial court denied the objection on January 28, 1999. Petitioner filed his notice of appeal on December 21, 1999.

Rule 4(a) of the Utah Rules of Appellate Procedure provides that a notice of appeal must be filed within 30 days after entry of a final order. If a party files a timely motion to amend findings, conclusions or a judgment, the time for appeal is tolled until the court rules on the motion. Utah R. App. P. 4(b). Defendant's objection functioned as such a motion. DeBry v. Fidelity National Title Insurance Co., 828 P.2d 520, 522-23 (Utah Ct. App. 1992). However, because he did not file his notice of appeal within 30 days of the trial court's order denying his objection, his notice of appeal was untimely.(1)

Defendant suggests that the trial court erred in dismissing his claims against the two respondents in two separate orders. However, the Utah Rules of Civil Procedure clearly contemplate that the trial court may enter separate dispositive orders as to individual parties in multiple-party actions. See, e.g., Utah R. Civ. P. 54(b). Defendant's contention that the trial court should have entered a single order encompassing all his claims overlooks the fact that the trial court did exactly that in its November 23, 1998 order of dismissal. As the court's October 13, 1998 order dismissing defendant's claims against the board of pardons was not certified in accordance with rule 54(b), the order of dismissal entered November 23, 1998 disposed of all claims.

It is hereby ordered that the appeal is dismissed.
 
 
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 
 

______________________________
Gregory K. Orme, Judge

1. Although defendant asserts that he did not receive notice that the October 13, 1998 order had been entered, failure to receive such notice does not affect the time limits of rule 4. Utah R. Civ. P. 58A(d). Furthermore, defendant acknowledges that he did receive notice of the November 23, 1998 order dismissing his petition.