Heuser v. Schmittroth

----ooOoo----

Greg Heuser and Michele Heuser,

Plaintiffs and Appellants,

v.

Connie Schmittroth, Lee Holmstead,
Kevin Fitzgerald, Afton Holmstead,
Carroll Holmstead, Roy Holmstead, and Kathleen Holmstead,
Defendants and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010250-CA

F I L E D
February 14, 2002 2002 UT App 42 -----

Third District, Salt Lake Department
The Honorable Leon A. Dever

Attorneys:
Thor B. Roundy, Salt Lake City, for Appellants
John L. McCoy, Salt Lake City, for Appellee -----

Before Judges Billings, Davis, and Orme.

PER CURIAM:

This case is before the court on appellee's motion for summary dismissal. Although appellants contend that the motion is untimely, a claim of lack of jurisdiction may be raised at any time.

A judgment appealable as a matter of right is one that "finally dispose[s] of the subject matter of the litigation on the merits of the case." In re S. Am. Ins. Co., 930 P.2d 276, 278 (Utah Ct. App. 1996). The denial of a summary judgment motion is not final and appealable because it leaves the case pending. Upon denial of their summary judgment motion, appellants had the burden to either try the case or dismiss it. The district court's minute entry contained a statement of the court's legal reasoning; however, the actual order was limited to denial of the summary judgment motion then before the court.

Under the final judgment rule, "no order of a trial court is appealable until a final judgment is entered on all issues." Kennecott Corp. v. Utah State Tax Comm'n, 814 P.2d 1099, 1101 (Utah 1991). "At that point, the final judgment and all interlocutory orders may be reviewed." Id. The well-recognized exceptions to the rule are (1) an interlocutory appeal under Rule 5 of the Utah Rules of Appellate Procedure, or (2) an appeal from an order properly certified as final under Rule 54(b) of the Utah Rules of Civil Procedure. Appellants did not seek permission to file an interlocutory appeal. See Utah R. App. P. 5. The order denying summary judgment also was not eligible for certification because it did not dispose of any claim or party. See Utah R. Civ. P. 54(b). Appellants instead sought to convert the denial of their summary judgment motion into a final appealable judgment by voluntarily dismissing their complaint. The "acquiescence of the parties is insufficient to confer jurisdiction on the court." A.J. Mackay Co. v. Okland Constr. Co., 817 P.2d 323, 325 (Utah 1991).

Appellants obtained a voluntary dismissal of their claims in the mistaken belief that they could thereby preserve a right to appeal the interlocutory order denying summary judgment. "A party who voluntarily dismisses its complaint without prejudice generally has no right to appeal." Barton v. Utah Transit Auth., 872 P.2d 1036, 1039 (Utah 1994). The dismissal order does not dismiss the case with prejudice. See Utah R. Civ. P. 41(a) (providing a voluntary dismissal is without prejudice unless it states otherwise). Appellants claim that even if the dismissal was without prejudice, they should be allowed to appeal because they were prejudiced by the minute entry ruling denying summary judgment, which they characterize as disposing of the issues in their case. The only "prejudice" resulting from the denial of summary judgment was the requirement that appellants prove their case at trial. The crux of appellants' argument is that they wish to avoid a trial and obtain appellate review of the legal reasoning stated as the rationale for denying summary judgment. They characterize the minute entry as dispositive of legal issues in the case; however, the court's order was limited to denial of summary judgment. Appellants further assert that the subsequent dismissal of their case was based on the ruling in the minute entry and was "expressly for the purpose of permitting appeal." Although appellants were mistaken about the effect of the voluntary dismissal, we lack jurisdiction to consider an appeal from voluntary dismissal of their case.

We dismiss the appeal for lack of jurisdiction because it is not taken from a final and appealable judgment. Our disposition is without prejudice to the prerogative of the trial court to set aside the order of dismissal as improvidently entered. If the order is set aside, appellants may proceed to trial. Alternatively, the trial court may dismiss the complaint on its own motion if the court is satisfied that it failed to state a claim for relief as a matter of law. The latter order would be appealable. We deny appellants' request for oral argument, and deny the requests of both parties for attorney fees.
 
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge
 
 
 

______________________________
James Z. Davis, Judge
 
 
 

______________________________
Gregory K. Orme, Judge