Wise v. Coates

Wise v. Coates

IN THE UTAH COURT OF APPEALS

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Donna Michelle Wise,

Plaintiff and Appellee,

v.

Gary L. Coates and Carolyn A. Coates, individually and as Trustees for the Gary L. Coates and Carolyn A. Coates 1999 Revocable Trust; the Gary L. Coates and Carolyn A. Coates Revocable Trust; Joyce C. Rigby; Suzette V. Wynder; Charlotte Christiansen; and Century 21 Central Realty,

Defendants and Appellants.

MEMORANDUM DECISION

(Not For Official Publication)
 

Case No. 20030194-CA
 

F I L E D

(October 30, 2003)
 

2003 UT App 368

 

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Sixth District, Manti Department

The Honorable K.L. McIff

Attorneys: D. Bruce Oliver, Salt Lake City, for Appellants

Richard L. Musick, Ephraim, for Appellee

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Before Judges Jackson, Bench, and Orme.

PER CURIAM:

This appeal is taken from a judgment certified as final for purposes of appeal under rule 54(b) of the Utah Rules of Civil Procedure. This case is before the court on a sua sponte motion for summary dismissal on the ground that the judgment was not eligible for certification under rule 54(b). Appellants and Appellee both move for summary disposition on the merits.

An exception to the final judgment rule exists "when the order in question is eligible for certification under [rule 54(b)] and has been properly certified." A.J. Mackay Co. v. Okland Constr. Co., 817 P.2d 323, 325 (Utah 1991). "The initial question of whether an order is eligible for certification under rule 54(b), i.e., whether the order is 'final' is a question of law." Kennecott Corp. v. Utah State Tax Comm'n, 814 P.2d 1099, 1100 (Utah 1991). "[T]he judgment appealed from must have been entered on an order that would be appealable but for the fact that other claims or parties remain in the action." Id. at 1101. Rule 54(b) "requires that the entirety of at least one of [the] claims be decided with finality." Id.

The judgment certified in this case was not eligible for certification under rule 54(b). The complaint raised three claims for relief, i.e., breach of the real estate contract, tortious interference with contract rights, and conspiracy. The district court determined that Appellee Donna Michelle Wise had a valid real estate purchase contract that bound the sellers and entitled Wise to specific performance as a remedy. However, the district court reserved for a further hearing the issue of whether additional monetary damages would also be available against the sellers. The court further determined that Appellants Charlotte Christiansen, Suzette Wynder, and Century 21 Central Realty (Century 21) were liable on the tort claims, but the sellers were not. The court deferred and held in abeyance the determination of damages as against Christiansen, Wynder, and Century 21. In sum, the court determined liability on each claim in Wise's complaint, but deferred the determination of remedies, with the exception of specific performance, for hearing after appeal. To characterize the determination of damages as a "separate claim" for purposes of rule 54(b) is contrary to the rule and case law construing it. To be eligible for certification, "the judgment appealed from must have been entered on an order that would be appealable but for the fact that other claims or parties remain in the action." Id. A liability determination without determination of the remedy would not be a final appealable judgment even in a case involving a single party and/or a single claim for relief.

Both parties stipulated to certification to obtain appellate review of the liability determination on all claims in the complaint and the order for specific performance, prior to determination of monetary damages flowing from that liability. However, "acquiescence of the parties is insufficient to confer jurisdiction on the court, and a lack of jurisdiction can be raised by the court or either party at any time." Mackay, 817 P.2d at 325. The record demonstrates that the certified judgment was neither a final determination of a separate claim nor a determination of all claims against any party.(1)

The judgment was not eligible for certification under rule 54(b); therefore, it was inappropriately certified. The remedy for an improperly certified appeal is dismissal. See id. at 326. Our dismissal for lack of jurisdiction makes it inappropriate to consider the cross-motions for summary disposition filed by the parties.

We dismiss the appeal for lack of jurisdiction without prejudice to a timely appeal initiated after the entry of a final judgment.

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Norman H. Jackson,

Presiding Judge

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Russell W. Bench, Judge

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Gregory K. Orme, Judge

1. Under the facts, we are not called upon to determine whether if the court had limited the remedy against sellers to specific performance only, that judgment would have been eligible for certification as final.