AFIE v. Harrison

AFIE v. Harrison

IN THE UTAH COURT OF APPEALS
 

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Armed Forces Insurance Exchange,

Plaintiff and Appellee,

v.

Judi Harrison, Restoration Systems Inc., and John Does 1-5,

Defendants and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040771-CA
 

F I L E D
(October 28, 2004)
 

2004 UT App 385

 

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Third District, Salt Lake Department

The Honorable Joseph Fratto Jr.

Attorneys: Joseph C. Rust and Matthew G. Bagley, Salt Lake City, for Appellant

Andrew M. Morse, David L. Pinkston, and D. Jason Hawkins, Salt Lake City, for Appellee

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Before Judges Bench, Davis, and Orme.

PER CURIAM:

Judi Harrison seeks to appeal from three orders of the trial court, entered March 4, June 24, and August 12, 2004. Harrison filed her notice of appeal on August 20, 2004, after the trial court denied her motion to correct or reconsider its order of dismissal. This is before the court on Armed Forces Insurance Exchange's (AFIE) motion for summary disposition based on lack of jurisdiction.

Generally, a notice of appeal must be filed within thirty days from the entry of the final order or judgment appealed from. See Utah R. App. P. 4(a). However, the time for appeal is tolled if postjudgment motions under rule 52 or 59 of the Utah Rules of Civil Procedure are timely filed in an action. See Utah R. App. P. 4(b). Under rule 4(b), the time for filing an appeal runs from the entry of an order disposing of a qualifying postjudgment motion. See id.

After the trial court orally ruled on AFIE's motion to voluntarily dismiss the fraud claim against Harrison, she filed a motion to correct or reconsider, styled and argued as a motion under Utah Rule of Civil Procedure 60(b). Rule 60(b) motions do not suspend the time for filing an appeal from a final order. See id.; Utah R. Civ. P. 60(b) (noting motion "does not affect the finality of a judgment or suspend its operation"). Thus, jurisdiction over the June 24 order of dismissal depends on whether Harrison's motion can be properly construed as a rule 52 or 59 motion, notwithstanding its designation as a rule 60(b) motion, which would toll the time for appeal.

It is well established that courts will look at the substance of a motion, rather than its caption, to determine its nature. See e.g., Watkiss & Campbell v. Foa & Son, 808 P.2d 1061, 1064 (Utah 1991) (construing a motion for reconsideration as a motion for new trial). A motion that "questions the correctness of the trial court's findings and conclusions is properly treated as a post-judgment motion under either rules 52(b) or 59(e)." Bonneville Billing & Collection v. Torres, 2000 UT App 338,¶4, 15 P.3d 112. If a motion challenges a trial court's evidentiary rulings or award of attorney fees, it may also be construed as a motion to amend the judgment or a motion for new trial, suspending the time for appeal. See Reagan v. Blount, 1999 UT App 154,¶5, 978 P.2d 1051 (per curiam).

Although Harrison's motion to correct or reconsider was filed pursuant to rule 60(b), she now argues that it should be construed as a motion to amend the judgment or a motion for a new trial. Her motion, however, does not substantively constitute a motion to amend or for a new trial. Harrison's motion to correct asserted a judicial oversight in the trial court's ruling, argued grounds within rule 60(b) as grounds to clarify the order, and expressly denied challenging the court's reasoning or legal conclusions.

In her motion, Harrison asserted an issue "was argued, but was not ruled upon by the Court in its oral ruling and is not reflected in the proposed Order." Her supporting memorandum noted that rule 60(b) "provides for the correction of Orders entered by the Court upon a showing of good cause." Harrison specifically denied that she was asking the court to reconsider its decision, but requested only that it "more completely address issues raised" by Harrison. Affirmatively defending the motion as appropriate under rule 60(b), Harrison argued "this is a proper Rule 60(b) Motion, because it is obvious the Court did not address one of the subjects specifically raised by Harrison in her objection." She asserted the court overlooked the issue and inadvertently remained silent in its ruling and order. The substance of the motion is that the court inadvertently omitted a specific ruling on Harrison's request, and does not allege that the court erred in its legal conclusions. This kind of inadvertent omission may properly come within rule 60(b)(1), providing for relief from mistake or inadvertence. See Franklin Covey Client Sales v. Melvin, 2000 UT App 110,¶22, 2 P.3d 451 (determining rule 60(b)(1) appropriate to address inadvertent judicial omission).

Harrison's motion did not challenge the substance of the trial court's ruling, but asserted only an inadvertent judicial omission, and thus cannot be construed as a motion under rules 52 or 59. The motion was properly made pursuant to rule 60(b) and did not toll the time for appeal from the June 24 order of dismissal. As a result, this court lacks jurisdiction to consider issues regarding the merits of the June 24 order because a notice of appeal from that order was not timely filed. Furthermore, without jurisdiction over the June 24 order, this court has no jurisdiction over the March 4 order. See Armed Forces Ins. Exch. v. Harrison, 2004 UT App 270 (per curiam).

Although AFIE requests that this court dismiss Harrison's appeal entirely, Harrison did file a timely notice of appeal from the trial court's denial of her rule 60(b) motion. Therefore, Harrison's appeal from that particular order is properly before this court.

Accordingly, AFIE's motion for summary disposition is granted in part and denied in part. Harrison's appeal may move forward regarding the August 12 order denying her rule 60(b) motion, the only order over which this court has jurisdiction.

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Russell W. Bench,

Associate Presiding Judge

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James Z. Davis, Judge

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Gregory K. Orme, Judge