Yoakum v. Yoakum

----ooOoo----

Wendy Anne Yoakum,
Petitioner and Appellee,

v.

Garon Clifford Yoakum,
Respondent and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000674-CA

F I L E D
February 8, 2001 2001 UT App 41 -----

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

Attorneys:
Rodney R. Parker, Salt Lake City, for Appellant
Alexander H. Walker, Salt Lake City, for Appellee

-----

Before Judges Bench, Davis, and Thorne.

PER CURIAM:

This appeal is before the court on a sua sponte motion for summary dismissal and on appellee's motion to dismiss.

A notice of appeal "shall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from." Utah R. App. P. 4(a). The divorce decree was signed by the judge and entered by the court clerk on June 28, 2000. See Utah R. Civ. P. 58A(b)-(c) (stating a judgment is entered when signed by the judge and filed with the clerk). A copy of the decree received by appellant bears the district court's date-stamp indicating the decree was "filed" on June 28, 2000. A notice of entry of judgment served on appellant by opposing counsel also advised him of the date of entry. The time for appeal commenced on June 28 and concluded on Friday, July 28, 2000. Accordingly, the notice of appeal filed on Monday, July 31, 2000 missed the deadline.

"Failure to file a timely notice of appeal deprives this court of jurisdiction over the appeal." Reisbeck v. HCA Health Services, 2000 UT 48,¶5, 2 P.3d 447. However, Rule 4(e) of the Utah Rules of Appellate Procedure permits "[t]he trial court, upon a showing of excusable neglect or good cause, [to] extend the time for filing a notice of appeal upon motion filed not later than thirty days after the expiration" of the thirty-day appeal period under Rule 4(a). The time for seeking an extension expired on August 28, 2000. The motion for an extension filed on October 3, 2000 was filed beyond the time allowed by Rule 4(e) and could not be considered by the district court. Under the plain meaning of Rule 2 of the Utah Rules of Appellate Procedure, this court is precluded from suspending or modifying application of Rule 4(e). We reject appellant's argument to the contrary.

Appellant argues that his untimely notice of appeal should be considered as either a timely Rule 4(e) motion or a "placeholder" for his subsequent motion. This argument effectively seeks a modification of Rule 4(e). The notice of appeal obviously did not seek an extension nor did it make the required showing of good cause or excusable neglect. Reisbeck underscores the importance of the district court's assessment of specific grounds in support of a motion to extend. See id. at ¶¶13-15. We decline to rule that an untimely notice of appeal functions as a motion to extend or as a placeholder for a subsequent and untimely motion to extend. This case is readily distinguishable from In re M.S., 781 P.2d 1287 (Utah Ct. App. 1989)(per curiam), where appellant filed both a notice of appeal and a letter explaining the circumstances that caused the notice to be untimely within the time allowed by Rule 4(e). This court remanded the case to the trial court to determine whether the letter would be considered by that court as a motion to extend and, if so, whether it would be granted. See id. at 1289. In this case, the notice of appeal was untimely, without explanation, and the Rule 4(e) motion was filed beyond the time allowed. Appellant's argument, if accepted, would allow a party, upon belated discovery that the notice of appeal was untimely, to cure the defect by filing a motion well beyond Rule 4(e)'s deadline and have the motion "relate back" to the date of the notice's filing. This would defeat the finality contemplated by the rule.

We also reject appellant's argument that this court lacks jurisdiction to dismiss the appeal because the district court did not rule on the pending Rule 4(e) motion. The motion was untimely; therefore, it was not properly before the district court, and that court cannot grant an extension. Because the notice of appeal was untimely, and neither the district court nor this court may grant an extension, dismissal is appropriate. Having determined that we lack jurisdiction, this court "retains only the authority to dismiss the action." Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989).

We dismiss the appeal for lack of jurisdiction. Accordingly, we do not consider appellee's motion to dismiss for failure to file a docketing statement.
 
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 

______________________________
James Z. Davis, Judge
 
 
 
 

______________________________
William A. Thorne, Jr., Judge