Johnson v. Johnson

IN THE UTAH COURT OF APPEALS
 

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Ina Marie Johnson,

Petitioner and Appellee,

v.

Neldon Paul Johnson,

Respondent and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040011-CA
 

F I L E D
(July 22, 2004)
 

2004 UT App 249

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Fourth District, Provo Department

The Honorable Gary D. Stott

Attorneys: Timothy Miguel Willardson, Sandy, for Appellant

Rosemond G. Blakelock, Provo, for Appellee

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Before Judges Bench, Davis, and Greenwood.

PER CURIAM:

Neldon Paul Johnson appeals an order denying a motion to disqualify the assigned district court judge under rule 63 of the Utah Rules of Civil Procedure. This case is before the court on a sua sponte motion for summary dismissal on grounds that the order Appellant seeks to appeal is interlocutory and not a final, appealable judgment.

An appeal of right may be taken only from a final judgment that "ends the controversy between the parties litigant." Bradbury v. Valencia, 2000 UT 50,¶9, 5 P.3d 649. "For an order or judgment to be final, it 'must dispose of the case as to all the parties and finally dispose of the subject-matter of the litigation on the merits of the case.'" Id. (quoting Kennedy v. New Era Indus., Inc., 600 P.2d 534, 536 (Utah 1979)). The order that Appellant seeks to appeal is not a final judgment because it did not fully dispose of the case.

Appellant argues that the decision being appealed "is of such a fundamental character as to require treatment as a final decision to allow the instant appeal." We have no jurisdiction to consider an appeal of right from a judgment that does not satisfy the final judgment rule. "Orders and judgments that are not final can be appealed if such appeals are statutorily permissible, if the appellate court grants permission under rule 5 of the Utah Rules of Appellate Procedure, or if the trial court expressly certifies them as final for purposes of appeal under rule 54(b) of the Utah Rules of Civil Procedure." Id. (citations omitted). Appellant did not seek permission to appeal by a timely petition filed in this court complying with rule 5; the order was not certified by the trial court under rule 54(b);(1) and there is no statute allowing an immediate appeal from an interlocutory order denying a motion to disqualify a judge. Once a court has concluded 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. 1998).

Accordingly, we dismiss the appeal for lack of jurisdiction because it is not taken from a final, appealable judgment.

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Russell w. Bench,

Associate Presiding Judge

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James Z. Davis, Judge

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Pamela T. Greenwood, Judge

1. In order to be eligible for certification under rule 54(b) of the Utah Rules of Civil Procedure, an order must fully dispose of a separate claim for relief in a case involving multiple claims or parties, and must be certified as final using the language of the rule. See Utah R. Civ. P. 54(b).