Allen v. Friel

IN THE UTAH COURT OF APPEALS
 

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Charles Allen,

Petitioner and Appellant,

v.

Clint Friel,

Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040543-CA
 

F I L E D
(October 15, 2004)
 

2004 UT App 362

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Third District, Salt Lake Department

The Honorable L.A. Dever

Attorneys: Charles Allen, Draper, Appellant Pro Se

Mark L. Shurtleff and Sharel S. Reber, Salt Lake City, for Appellee

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Before Judges Bench, Davis, and Orme.

PER CURIAM:

This case is before the court on its own motion for summary disposition on the basis of lack of jurisdiction and that the issues presented are so insubstantial as to not merit further consideration by the court. See Utah R. App. P. 10.

We need not address whether the issues are substantial because the appeal is resolved on jurisdictional grounds. Appellant Allen filed a petition for extraordinary relief, pursuant to rule 65B(b) of the Utah Rules of Civil Procedure, on December 29, 2003. The district court dismissed the petition without a hearing in a signed minute entry order issued April 23, 2004. Allen filed what the district court construed to be a notice of appeal on June 24, 2004, well beyond thirty days after issuance of the final appealable order. See Utah R. App. P. 4(a).

As a result, the notice of appeal is untimely and this court lacks jurisdiction to consider the appeal. See Serrato v. Utah Transit Auth., 2000 UT 299,¶7, 14 P.3d 616. Moreover, once this court has determined that it lacks jurisdiction, it "retains only the authority to dismiss the action." Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989).

Accordingly, the appeal is dismissed for lack of 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