Schulder v. Gill

Schulder v. Gill

IN THE UTAH COURT OF APPEALS

----ooOoo----

Timothy Schulder, Trustee of the Nancy Peery Schulder Irrevocable Trust,

Plaintiff and Appellant,

v.

David G. Gill and Renate E. Gill,

Defendants and Appellees.

MEMORANDUM DECISION

(Not For Official Publication)
 

Case No. 20020925-CA
 

F I L E D

(February 27, 2003)
 

2003 UT App 59

 

-----

Third District, Salt Lake Department

The Honorable Joseph C. Fratto Jr.

Attorneys: Douglas T. Hall, Midvale, for Appellant

David G. Gill and Renate E. Gill, Murray, Appellees Pro Se

-----

Before Judges Bench, Davis, and Thorne.

PER CURIAM:

Appellant, the Nancy Peery Schulder Irrevocable Trust (the Trust), seeks to appeal the damages awarded for breach of a contract for sale of real estate. This case is before the court on a sua sponte motion for summary dismissal for lack of jurisdiction.

The Trust obtained a default judgment. Following an evidentiary hearing on damages, the court rejected the Trust's claim that it was entitled to an award of $50,000, representing the difference between the offer made by Appellees, David and Renate Gill, and the price at which the property ultimately sold to another buyer. The Trust conceded that it had elected under the sale contract to return the $5,000 paid as earnest money as a prerequisite to filing the lawsuit. Counsel for the Trust prepared a judgment that was consistent with the court's ruling on damages. On May 21, 2002, the court entered a judgment awarding damages in the nominal amount of $10, plus costs of $172, and attorney fees of $3,002.

On June 7, 2002, counsel for the Trust submitted an "Amended Judgment." An accompanying letter recited that the proposed amended judgment "includes an award of the $5,000.00 earnest money deposit that was not included in the original judgment that was submitted to the court." In a signed minute entry, the district court correctly determined that the amendment represented a substantial alteration of the judgment that should have been sought by an appropriate motion. Thereafter, counsel for the Trust submitted a Motion to Amend Judgment, which sought amendment of the judgment to either award the $50,000 in damages originally sought or award $5,000, representing the earnest money deposit. The district court denied this motion, and the Trust filed a notice of appeal challenging the judgment, which awarded only nominal damages.

Generally, a notice of appeal must be filed within thirty days after entry of the judgment being appealed. See Utah R. App. P. 4(a). However, rule 4(b) of the Utah Rules of Appellate Procedure provides, in relevant part, that a "timely motion under the Utah Rules of Civil Procedure . . . filed in the trial court by any party . . . under Rule 52(b) to amend or make additional findings . . . or under Rule 59 to alter or amend the judgment" suspends running of the time for appeal until the entry of an order disposing of the motion. See Utah R. App. P. 4(b). Only a timely post-judgment motion affects the appeal time. See id.

In the motion to amend judgment, the Trust sought reconsideration of the damages awarded and amendment of the final judgment. Accordingly, the motion to amend judgment was, in substance, a motion under rule 59(e) or rule 52(b) of the Utah Rules of Civil Procedure. See Reeves v. Steinfeldt, 915 P.2d 1073, 1076 (Utah Ct. App. 1996) (stating post-judgment motion questioning correctness of court's findings and conclusions is treated as motion under either rule 52(b) or 59(e)); see also Davis v. Grand County, 905 P.2d 888, 892 (Utah Ct. App. 1995) (construing improper motion to reconsider as equivalent to motion for new trial). Rule 59(e) requires a motion to amend the judgment "to be served not later than ten days after the entry of judgment," and rule 52(b) requires a motion to amend the findings "to be made" not later than ten days after entry of the judgment. The court entered the judgment in this case on May 21, 2002. The time for making a motion under either rule 52(b) or rule 59(e) expired on June 6, 2002. The Trust's motion was not filed until July 17, 2002, and it did not suspend the finality of the judgment or the time for appeal. See Davis, 905 P.2d at 892 (stating court lacks jurisdiction to consider merits of untimely motion for new trial). Because the Trust did not file a timely notice of appeal from the May 21, 2002 judgment, we lack jurisdiction over the appeal.

The Trust asserts that its motion to amend the judgment was not "stylized" as a motion to amend the judgment under rule 59(e); thus, it argues that rule 4(b) does not apply. However, if rule 4(b) does not apply, the notice of appeal is untimely on its face because it was not filed within thirty days of the judgment entered on May 21, 2002. The Trust's failure to comply with the appropriate rules to seek amendment of the judgment is not a basis to exempt it from the jurisdictional requirements for initiating an appeal.

We dismiss the appeal for lack of jurisdiction.

______________________________

Russell W. Bench, Judge

______________________________

James Z. Davis, Judge

______________________________

William A. Thorne Jr., Judge