H.O. v. State (In re S.O.)

H.O. v. State (In re S.O.)

IN THE UTAH COURT OF APPEALS

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State of Utah, in the interest of S.O., S.O, and E.O., persons under eighteen years of age.

______________________________

H.O.,

Appellant,

v.

State of Utah,

Appellee.

MEMORANDUM DECISION

(Not For Official Publication)

Case No. 20040859-CA

F I L E D

(November 26, 2004)

2004 UT App 449

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Third District Juvenile, Tooele Department

The Honorable Elizabeth A. Lindsley

Attorneys: Douglas F. White, Bountiful, for Appellant

Mark L. Shurtleff, Carol L.C. Verdoia, and John M. Peterson, Salt Lake City, for Appellee

Martha Pierce and Jim Michie, Salt Lake City, Guardians Ad Litem

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Before Judges Bench, Davis, and Jackson.

PER CURIAM:

H.O. appeals from an order of the juvenile court terminating his parental rights. We determine that we lack jurisdiction over this appeal.

The juvenile court terminated H.O.'s parental rights on June 25, 2004, and filed its findings, conclusions and order on September 14, 2004. H.O. then filed a document entitled "Objections to Findings of Facts, Conclusions of Law and Order" (H.O.'s motion), requesting that the court amend its findings and challenging certain conclusions. H.O. then filed a notice of appeal on September 23, 2004. On November 19, 2004, the juvenile court entered Amended Findings of Fact, Conclusions of Law and Order, resolving H.O's motion.

Under Utah Rule of Appellate Procedure 52, "[i]f a timely post judgment motion is filed pursuant to Utah Rules of Civil Procedure 50(b), 52(b), or 59, the time for appeal shall run from the entry of the order disposing of the motion." Utah R. App. P. 52(a). Further, Utah Rule of Appellate Procedure 4(b) provides that if a timely motion is filed in the trial court under Rule 52(b) or Rule 59, the time for appeal "shall run from the entry of the order denying a new trial or granting or denying any other such motion." Utah R. App. P. 4(b). Rule 4(b) states that an appeal filed before the disposition of any such motion "shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order of the trial court disposing of the motion as provided above." Id.

H.O.'s motion is in substance a motion under either rule 52 or rule 59 of the Utah Rules of Civil Procedure, each of which tolls the time for appeal. See id. H.O.'s motion therefore tolled the time for appeal until the entry of a signed order disposing of the motion. See Swenson Assocs. Architects v. State, 889 P.2d 415, 417 (Utah 1994). The notice of appeal was filed prior to the entry of the order resolving H.O.'s motion. Accordingly, the notice of appeal did not confer jurisdiction on this court. See id.; Utah R. App. P. 4(b), 52(a). Once this court determines that it lacks jurisdiction over an appeal, we retain "only the authority to dismiss the action." Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989).

Accordingly, we dismiss the appeal without prejudice to the filing of a timely notice of appeal.

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Russell W. Bench,

Associate Presiding Judge

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James Z. Davis, Judge

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Norman H. Jackson, Judge