Zito v. Cedant

Zito v. Cedant

IN THE UTAH COURT OF APPEALS

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Jack B. and Joanna M. Zito,
Plaintiffs,

v.

Cendant Mobility Services,
Defendants.

______________________________

Cendant Mobility Services,
Plaintiffs and Appellees,

v.

Craig and Kylie Reagan,
Defendants and Appellants.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010715-CA

F I L E D
(January 16, 2003)

2003 UT App 12

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Fourth District, Heber City Department

The Honorable Donald J. Eyre Jr.

Attorneys: Don R. Petersen and Leslie W. Slaugh, Provo, for Appellants

Bruce R. Baird, Salt Lake City, for Appellees

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Before Judges Jackson, Billings, and Thorne.

BILLINGS, Associate Presiding Judge:

Craig and Kylie Reagan (the Reagans) appeal from an order granting partial summary judgment to Cendant Mobility Services (Cendant). We conclude the order was improperly certified under Rule 54(b) of the Utah Rules of Civil Procedure and therefore dismiss the appeal. See Olson v. Salt Lake City Sch. Dist., 724 P.2d 960, 964 (Utah 1986) (noting "acquiescence of the parties is insufficient to confer jurisdiction [under rule 54(b)] and . . . a lack of jurisdiction can be raised at any time by . . . the court" in dismissing improperly certified appeal).

An order granting partial summary judgment is properly certified under rule 54(b) only if the following requirements are met:

"First, there must be multiple claims for relief or multiple parties to the action. Second, the judgment appealed from must have been entered on an order that would have been appealable but for the fact that other claims or parties remain in the action. Third, the [district] court, in its discretion, must make a determination that 'there is no just reason for delay' of the appeal."

Weiser v. Union Pac. R.R. Co., 932 P.2d 596, 597 (Utah 1997) (citations omitted).

In the present case, the certified order granting partial summary judgment to Cendant fails to meet the finality requirements.

Rule 52(a) [of the Utah Rules of Civil Procedure] requires . . . the [district] court [to] "find the facts specially" in all actions tried by the court and in interlocutory orders. In order to facilitate this court's review of judgments certified as final under rule 54(b), [district] courts should . . . enter findings supporting the conclusion that such orders are final.

Bennion v. Pennzoil Co., 826 P.2d 137, 139 (Utah 1992). No such findings were entered by the district court.

Moreover, the record shows the order in the present case was not final under rule 54(b). "The only orders that are 'final' within the meaning of the rule are those that (i) are entered in cases where there are multiple parties or multiple claims for relief, and (ii) 'wholly' dispose of one or more, 'but fewer than all,' of the claims or parties." Olson, 724 P.2d at 964 (citation omitted).

In the present case, "the [district] court appears to have confused 'claim' and 'issue.'" Weiser, 932 P.2d at 597. When the court granted the rule 54(b) certification, the only claim before the court was Cendant's claim for rescission based on two legal theories--that the Reagans' conveyance of the property to Cendant violated Utah statutes and Wasatch County ordinances and that the Reagans violated covenants in the warranty deed. Before the district court certified the order granting partial summary judgment to Cendant on its rescission claim, the Zitos had settled their claims against Cendant. The Reagans' third-party complaint against First American Title Company was not filed until after the district court certified the order granting summary judgment to Cendant on its rescission claim. Thus, no other claim or parties existed when the district court certified the order granting partial summary judgment to Cendant on its recission claim.

Furthermore, the order failed to wholly dispose of Cendant's rescission claim. Cendant claimed that rescission of the conveyance entitled it to "a refund of the purchase price, plus interest and other damages, plus the monies Cendant was required to pay the Zito[s], less any possible deterioration of the property directly attributable to Cendant." After concluding that the Reagans were liable to Cendant and that rescission was appropriate, the district court reserved damages because material issues of fact existed in regard to Cendant's claims for damages. "'[W]here liability has been decided but the extent of damage remains undetermined, there is no final order' for purposes of appellate review." Olson, 724 P.2d at 965 (citation omitted); see American Sav. & Loan Ass'n v. Gibson, 839 P.2d 797, 798 (Utah 1992) (per curiam) (concluding, where trial court reserved question of damages on guarantee claim, that the order granting summary judgment failed to dispose completely of a claim as required by rule 54(b) and therefore the order was not final and could not be appealed). Because the extent of damages has not been determined, the certification of the order granting partial summary judgment to Cendant on its rescission claim was improper.

The Reagans allege that the reserved damage issues involve separate facts and thus certification was proper under rule 54(b). Utah appellate courts have recognized that certification may be proper where an "underlying action involve[s] 'multiple claims for relief which do not arise out of the same set of operative facts.'" Weiser, 932 P.2d at 598 (citation omitted).

However, in the present case, multiple claims for relief did not exist when the order granting partial summary judgment to Cendant was certified. Further, the certified order goes beyond liability by ordering rescission, while reserving damages. Moreover, the Reagans challenge whether rescission is appropriate because there is a material issue of fact as to whether they can be returned to the status quo. The reserved factual determination as to whether Cendant failed to maintain the property overlaps with the issue of whether Cendant can return the Reagans to the status quo and thus whether rescission is appropriate. See 50 W. Broadway Assocs. v. Redevelopment Agency, 784 P.2d 1162, 1170-71 (Utah 1989). That the reserved issues factually overlap with the issues raised on appeal further supports our conclusion that certification was improper under rule 54(b).

Because the order was improperly certified as final under rule 54(b), we dismiss this appeal. See Olson, 724 P.2d at 965; see also A.J. Mackay Co. v. Okland Constr. Co., 817 P.2d 323, 325 (Utah 1991).(1)

______________________________

Judith M. Billings,

Associate Presiding Judge

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WE CONCUR:

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Norman H. Jackson,

Presiding Judge

______________________________

William A. Thorne Jr., Judge

1. The Reagans ask this court to treat the improperly certified order as a petition for interlocutory review under Rule 5 of the Utah Rules of Appellate Procedure. Rule 5 provides this court with the discretion to treat "[a] timely appeal from an order certified under [r]ule 54(b) . . . . that [this] court determines is not final . . . as a petition for permission to appeal an interlocutory order" and to "direct the appellant to file a petition that conforms to [rule 5(c),]" explaining why interlocutory review is appropriate. Utah R. App. P. 5(a); see In re Estate of Gillmor, 2001 UT App 25 (per curiam) (staying dismissal of appeal from improperly certified order "to allow appellants to file a petition for permission [to appeal an interlocutory order] in the form required by [r]ule 5(c)"). However, we decline to invoke our discretion where the record does not show that interlocutory review is appropriate, see Manwill v. Oyler, 11 Utah 2d 433, 361 P.2d 177, 178 (1961) (discussing when interlocutory review is appropriate), but rather shows that overlapping disputed factual issues in regard to damages and liability remain.