UDOT v. Ivers

UDOT v. Ivers

IN THE UTAH COURT OF APPEALS

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Utah Department of Transportation,

Plaintiff and Appellee,

v.

James Ivers, Katherine G. Havas, P and F Food Services (Tenant), and Zions Credit Corporation,

Defendants and Appellants.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20031016-CA
 

F I L E D
(April 29, 2004)
 

2004 UT App 127

 

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Second District, Farmington Department

The Honorable Michael G. Allphin

Attorneys: Donald J. Winder and John W. Holt, Salt Lake City, for Appellants

Mark L. Shurtleff and Stephen C. Ward, Salt Lake City, for Appellee

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Before Judges Billings, Orme, and Thorne.

PER CURIAM:

James Ivers, Katherine Havas, P and F Food Services, and Zions Credit Corporation (collectively Ivers) appeal the trial court's order excluding certain evidence of damages in the taking by the Utah Department of Transportation (UDOT) of a portion of Ivers's property. The trial court certified the order as final and appealable under Utah Rule of Civil Procedure 54(b). This is before the court on its own motion for summary disposition for lack of jurisdiction.

Utah Rule of Civil Procedure 54(b) permits a trial court to "direct the entry of a final judgment as to one or more but fewer than all of the claims or parties" in a matter involving either multiple claims or multiple parties. Utah R. Civ. P. 54(b). The court may direct the entry of a final judgment "only upon an express determination" that there is no just reason for delay. Id. The effect of directing a final judgment for a partial disposition of a case is to make the specified final judgment immediately appealable, although the remainder of the case goes forward in the trial court. See id.; Kennecott Corp. v. Utah State Tax Comm'n, 814 P.2d 1099, 1102 (Utah 1991) (stating rule 54(b) provides trial courts with authority to "certify a certain class of orders and thereby make them appealable as of right").

The question of whether an order is eligible for certification under rule 54(b) is a question of law. See Kennecott Corp., 814 P.2d at 1100. Certain requirements must be met before an order is properly certifiable under rule 54(b). First, the action must involve multiple claims for relief or multiple parties; second, the judgment appealed must be an order that would be appealable if there were no other claims or parties remaining in the action; third, the trial court must make the specific determination that there is no just reason for delay. See id. at 1101.

To constitute a separate claim, "the facts underlying [the claim] must be different than those underlying other claims in the action. . . . [S]everal legal theories based on one set of facts do not convert the theories into separate claims for purposes of rule 54(b)." Id. at 1103. Although the line between deciding one of several claims and deciding only part of a single claim may be obscure, if allegedly separate claims are based on the same operative facts, the claims are not separate claims under rule 54(b). See id.; see also Weiser v. Union Pac. R.R. Co., 932 P.2d 596, 597 (Utah 1997) (holding ownership of land is single claim even under varied legal theories); Furniture Distrib. Ctr. v. Miles, 821 P.2d 1165, 1166-67 (Utah Ct. App. 1991) (holding three causes of action arose from single claim based on single set of operative facts).

In this matter, there is only a single claim. UDOT is taking a portion of Ivers's land, and the sole issue is determining the damages to be paid for the taking. The operative facts are that UDOT is reconstructing an intersection, and to do so it is taking a strip of Ivers's parcel. Ivers attempts to split different theories or categories of damages into separate "claims," but all arise from a single taking. Thus, this action does not involve multiple claims under rule 54(b).

Furthermore, the certified order must be a "final judgment as to one or more but fewer than all of the claims or parties." Utah R. Civ. P. 54(b). "[A]n order that does not wholly dispose of a claim or a party is not 'final' under rule 54(b) and will not be appealable, even with such a certification." Pate v. Marathon Steel Co., 692 P.2d 765, 768 (Utah 1984).

In essence, Ivers appeals an evidentiary ruling, not the disposition of a separate claim. The trial court has excluded particular evidence of the valuation of the remainder of the land after UDOT has taken the desired strip. The trial court has not wholly disposed of a claim, because the matter of damages remains before the trial court. The trial to determine the amount of compensation must still go forward, and all the parties remain involved in the suit. Thus, the order excluding the evidence is not an order which can be made appealable under rule 54(b).

The order from which Ivers appeals is not an order eligible for certification under rule 54(b). As a result, this court lacks jurisdiction to hear this appeal. This appeal is dismissed without prejudice to the filing of an appeal after the entry of a final order in this matter.

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Judith M. Billings,

Presiding Judge

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Gregory K. Orme, Judge

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William A. Thorne Jr., Judge