Harris v. Harris

Harris v. Harris

IN THE UTAH COURT OF APPEALS

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Kirt Harris,

Petitioner and Appellant,

v.

Jeanette Harris,

Respondent and Appellee.

MEMORANDUM DECISION

(Not For Official Publication)

Case No. 20040245-CA

F I L E D

(November 26, 2004)

2004 UT App 438

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Fourth District, Provo Department

The Honorable Claudia Laycock

The Honorable James R. Taylor

Attorneys: Ron D. Wilkinson, Orem, for Appellant

Sean M. Petersen, Provo, for Appellee

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Before Judges Billings, Bench, and Orme.

PER CURIAM:

Appellant Kirt Harris (Husband) appeals the order granting a motion to set aside the parties' stipulation.

Appellee Janet Harris (Wife) moves to dismiss the appeal for lack of jurisdiction on two grounds. First, she contends that, even assuming the order was final and appealable, the appeal was not timely. Second, she contends that the appeal is not taken from a final, appealable judgment.

The interlocutory order that Husband seeks to appeal set aside the parties' stipulation and required the parties to proceed on the merits of the complaint. Husband did not file a timely petition for permission to appeal from this interlocutory order under rule 5 of the Utah Rules of Appellate Procedure, and the time for filing such a petition has expired. Husband's reliance upon the probate case of Estate of Morrison, 935 P.2d 1015 (Utah Ct. App. 1997), and cases cited therein is not appropriate under the facts of this case. Because the appeal is not taken from a final order, and would be untimely if the order had been appealable, we lack jurisdiction to consider it.

Accordingly, we dismiss the appeal for lack of jurisdiction. We deny the motion for sanctions under rule 33 of the Utah Rules of Appellate Procedure.

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Judith M. Billings,

Presiding Judge

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Russell W. Bench,

Associate Presiding Judge

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Gregory K. Orme, Judge