JTB Const. v. M13 Const.

JTB Const. v. M13 Const.

IN THE UTAH COURT OF APPEALS

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JTB Construction and Drywall, Inc., a Utah corporation,

Plaintiff, Appellee and Cross-Appellant,

v.

M13 Construction, Inc., Main Plaza, LLC,
Zions First National Bank, and John Does I through X,

Defendants, Appellant, and Cross-Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20031015-CA
 

F I L E D
(June 4, 2004)
 

2004 UT App 185

 

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Fourth District, Provo Department

The Honorable Claudia Laycock

Attorneys: David C. Condie, Salt Lake City, for Appellant

J. David Nelson, Sandy, for Appellee

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Before Judges Billings, Greenwood, and Orme.

PER CURIAM:

Main Plaza, LLC (Main Plaza) appeals the denial of a motion to set aside a default judgment granted in favor of JTB Construction and Drywall, Inc. (JTB), which filed a cross-appeal challenging the district court's ruling that the motion under rule 60(b) of the Utah Rules of Civil Procedure was timely. This case is before the court on JTB's motion for summary reversal, and on a sua sponte motion for summary dismissal for lack of jurisdiction. Because we conclude the notice of appeal was not timely filed, we dismiss the appeal and do not consider JTB's motion.

Main Plaza concedes that counsel for JTB served proposed findings of fact, conclusions of law and order on Main Plaza's counsel on October 3, 2003, and further concedes that objections were due on or before October 15, 2003. JTB's counsel filed the Findings of Fact, Conclusions of Law and Order with the district court on October 20, 2003, and the court signed and entered the order on that same date. Main Plaza filed objections on October 28, 2003. Main Plaza contends that the parties agreed to an extension of the time to file objections, but there is no record support for an extension granted by the district court. Alternatively, Main Plaza contends that the time for making objections was not triggered until the proposed findings, conclusions and order were filed with the court on October 20. This contention is not supported by the plain language of rule 4-504 of the Utah Code of Judicial Administration in effect at the time, which required the proposed order to be served on the opposing party prior to being presented to the court and required objections to be made "within five days after service." Utah Code Jud. Admin. 4-504(2) (repealed effective Nov. 1, 2003).

On November 25, 2003, the district court denied Main Plaza's objections as untimely, concluding that the court had properly signed the findings, conclusions, and order on October 20, 2003, after the time allowed for objections by rule 4-504(2). Main Plaza's counsel was not aware of the entry of the order until late November 2003. Main Plaza filed a notice of appeal on December 2, 2003, but did not file a motion under rule 4(e) of the Utah Rules of Appellate Procedure to extend the time for appeal.

Rule 4(a) of the Utah Rules of Appellate Procedure requires a notice of appeal to be filed within thirty days after entry of the judgment or order being appealed. "If an appeal is not timely filed, this court lacks jurisdiction to hear the appeal." Serrato v. Utah Transit Auth., 2000 UT App 299,¶7, 13 P.3d 616. The time for appeal from the October 20, 2003 order expired on November 19, 2003. The time for filing a motion to extend the appeal time in the district court expired on December 19, 2003. See Utah R. App. P. 4(e) (allowing motion to extend time for appeal to be filed within thirty days after expiration of original appeal time). The district court may grant a motion to extend based upon a finding of excusable neglect or good cause. See Serrato, 2000 UT App 299 at ¶7.

Main Plaza argues that its notice of appeal was timely filed after entry of the November 25, 2003 order denying its objections; therefore, it should be allowed to argue on appeal that the district court erred in concluding it had properly entered the order denying the rule 60(b) motion on October 20, 2003. Main Plaza contends that if the district court erred in this conclusion, its notice of appeal can be deemed timely filed.

Only the district court may extend the time for appeal under rule 4(e), and Main Plaza's arguments regarding the late filing of its notice of appeal must have been raised in a timely motion to extend the time for appeal. Main Plaza was aware of both the entry of judgment and the ruling on its objections within the time allowed for a motion to extend the time for appeal under rule 4(e), but it failed to file such a motion.

We dismiss the appeal for lack of jurisdiction based upon an untimely notice of appeal.

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Judith M. Billings,

Presiding Judge

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Pamela T. Greenwood, Judge

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Gregory K. Orme, Judge