Ervin v. Lowe's Companies

Ervin v. Lowe's Companies

IN THE UTAH COURT OF APPEALS
 

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Allen R. Ervin and Blanche Ervin;

Plaintiffs,

v.

Lowe's Companies, Inc.,

Defendant.

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Lowe's Companies, Inc.,

Third-party Plaintiff and Appellant,

v.

Collins Co., LTD; and Collins International Co., LTD.,

Third-party Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040158-CA
 

F I L E D
(September 30, 2004)
 

2004 UT App 340

 

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Third District, Salt Lake Department

The Honorable Sandra N. Peuler

Attorneys: Clifford C. Ross, Salt Lake City, for Appellant

Michael P. Zaccheo, Salt Lake City, for Appellees

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Before Judges Davis, Jackson and Orme.

PER CURIAM:

    Third-party Plaintiff Lowe's Companies, Inc. (Lowe's) appeals from the district court's order granting Third-party Defendant Collins International Co., Ltd.'s (Collins International) motion for summary judgment. This case is before the court on Collins International and Collins Co., Ltd.'s motion for summary disposition on the basis that this court lacks jurisdiction to hear this appeal due to the absence of a final, appealable order or judgment. See Utah R. App. P. 4(a).

    On September 30, 2002, the district court granted summary judgment in favor of Collins International and against Lowe's pursuant to a minute entry ruling. A written order was not entered on the summary judgment by the district court until June 19, 2003. On May 23, 2003, Lowe's filed its "Motion for Relief from Summary Judgment in Favor of Collins International Co., Ltd." (Motion for Relief), pursuant to Utah Rules of Civil Procedure 52(b) and 60(b). To date, the Motion for Relief has not been ruled upon by the district court.

    An appeal may be taken from a district court from all final orders and judgments. See Utah R. App. P. 3(a). Absent a final order, this court lacks jurisdiction and must dismiss the appeal. See Regan v. Blount, 1999 UT App 154,¶4, 978 P.2d 1051. The finality of an order or judgment may be affected by certain post-trial motions. See id. Specifically, under Utah Rule of Appellate Procedure 4(b), a timely motion under Utah Rule of Civil Procedure 52(b) "suspends the finality of the challenged order or judgment rendering a notice of appeal filed prior to disposition of such a motion by entry of a signed order [ineffective] to confer jurisdiction on an appellate court." Regan, 1999 UT App 154 at ¶4; see Utah R. App. P. 4(b). To vest jurisdiction in the appellate court, the notice of appeal must be filed after entry of the order disposing of such a motion. See Utah R. App. P. 4(b); Regan, 1999 UT App 154 at ¶4.

    Lowe's Motion for Relief included a motion to amend findings pursuant to Utah Rule of Civil Procedure 52(b). Therefore, the Motion for Relief tolled the time for appeal. See Utah R. App. P. 4(b). Whereas the appeal is not taken from a final order and is ineffective, "we have no alternative but to dismiss the appeal for lack of jurisdiction." Regan, 1999 UT App 154 at ¶9.

    Accordingly, Lowe's appeal is dismissed without prejudice to the timely filing of a notice of appeal from a final judgment or order entered by the district court.

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James Z. Davis, Judge

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Norman H. Jackson, Judge

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Gregory K. Orme, Judge