Brandenburg Dev. v. ACFO

IN THE UTAH COURT OF APPEALS

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Brandenburg Development and Consulting, LLC, a Utah limited liability company;
William H. Pingree Jr.; Pleasant Meadows, LLC, a Utah limited liability company; and
Northwest Atlantic, Inc., a Utah corporation,
Plaintiffs and Appellants,

v.

A.C.F.O., Franklin Financial, and The Capital Company, Utah corporations;
Richard A. Christenson, an individual; and Margaret Christenson, an individual,
Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030083-CA
 

F I L E D
(May 30, 2003)
 

2003 UT App 175

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Third District, Salt Lake Department

The Honorable J. Dennis Frederick

Attorneys: Bruce Wycoff and Brent Orozco, Salt Lake City, for Appellants

Ralph J. Marsh, Salt Lake City, for Appellees

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Before Judges Jackson, Billings, and Greenwood.

PER CURIAM:

This case is before the court on its own motion for summary dismissal due to an untimely notice of appeal. See Utah R. App. P. 10. Appellants have responded to this court's motion; Appellees have not. Appellants filed a timely notice of appeal from a judgment that did not resolve the issue of attorney fees. After entry of judgment on the attorney fees, Appellants filed another notice of appeal, which resulted in another case-number 20030259.

Despite the fact that another timely notice of appeal was filed after the resolution of the issue of attorney fees, Appellants still object to summary dismissal of this appeal. Appellants argue that Promax Development Corp. v. Raile, 2000 UT 4,¶12, 998 P.2d 254, did not resolve the issue of the timeliness of a notice of appeal filed after entry of a written judgment, but before determination of attorney fees. We disagree. A notice of appeal filed before entry of an order awarding and assessing attorney fees is premature and, therefore, untimely.

As a result of the untimely notice of appeal, this court lacks jurisdiction and retains only the authority to dismiss. See Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989).

We dismiss the appeal.(1)

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Norman H. Jackson,

Presiding Judge

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Judith M. Billings,

Associate Presiding Judge

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Pamela T. Greenwood, Judge

1. The dismissal of this appeal does not affect case number 20030259, which remains open. All future filings are to be filed under that case number.