Express Recovery v. Pearson

----ooOoo----

Express Recovery Services, Inc.,
Plaintiff and Appellee,

v.

Carl Pearson,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010716-CA

F I L E D
March 7, 2002 2002 UT App 69 -----

Third District, West Valley Department
The Honorable Pat B. Brian

Attorneys:
Jonathan K. Jensen and Samuel S. McHenry, Salt Lake City, for Appellee
Carl Pearson, Sandy, Appellant Pro Se -----

Before Judges Billings, Orme, and Thorne.

PER CURIAM:

This appeal is before the court on a sua sponte motion for summary affirmance. However, based upon a review of the trial court record, we dismiss the appeal for lack of jurisdiction.

The district court entered a default judgment against Appellant Carl Pearson on April 17, 2001. Pearson did not file a direct appeal, but he filed a "Motion to Dismiss Judgment," which the trial court construed as a motion to set aside the judgment pursuant to Rule 60(b) of the Utah Rules of Civil Procedure. Following Pearson's failure to appear at a hearing, the district court denied the motion in an unsigned minute entry included only in the court's docket. This ruling was not reduced to a written order signed by the trial court and filed with the clerk. See Utah R. Civ. P. 58A(b), (c). It is well-settled that "an unsigned minute entry is not a final judgment for purposes of appeal." State v. Rawlings, 829 P.2d 150, 153 (Utah Ct. App. 1992). "Absent a final order, the appellate courts lack jurisdiction to consider an appeal, necessitating dismissal." Id.

Based upon the lack of a final appealable order, we must dismiss the appeal for lack of jurisdiction. See Varian Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989) ("When a matter is outside the court's jurisdiction, it retains only the authority to dismiss the action."). Our dismissal is without prejudice to a timely appeal filed after the entry of a signed order denying the motion to set aside the judgment.(1)
 

______________________________
Judith M. Billings,
Associate Presiding Judge
 

______________________________
Gregory K. Orme, Judge
 

______________________________
William A. Thorne Jr., Judge

1. Appellate review of an order on a rule 60(b) motion addresses only the propriety of the denial or grant of the motion and not the merits of the underlying judgment, which must be the subject of a direct appeal. See Franklin Covey Client Sales, Inc. v. Melvin, 2000 UT App 110,¶19, 2 P.3d 451.