Martinez v. Progressive NW Ins

Martinez v. Progressive NW Ins

IN THE UTAH COURT OF APPEALS

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Irma Martinez,

Plaintiff and Appellant,

v.

Progressive Northwestern Insurance Company,

Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20040377-CA

F I L E D
(June 17, 2004)

2004 UT App 204

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Third District, Salt Lake Department

The Honorable Anthony B. Quinn

Attorneys: Trent J. Waddoups, Salt Lake City, for Appellant

Kristin A. VanOrman and Robert W. Harrow, Salt Lake City, for Appellee

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Before Judges Bench, Greenwood, and Orme.

PER CURIAM:

Irma Martinez seeks to appeal the trial court's denial of her motion for a new trial regarding attorney fees. This matter is before the court on Progressive Northwestern Insurance Company's (Progressive) motion for summary disposition based on an untimely notice of appeal.

The core issues of this case were settled in 2003, leaving attorney fees for later resolution. In January 2004, the trial court held a hearing to determine attorney fees. The trial court found the fees claimed by Martinez's counsel to be excessive and unreasonable, and awarded no fees. The trial court entered a final order regarding fees and the dismissal of the case on February 4, 2004.

Martinez filed a timely motion for a new trial regarding attorney fees pursuant to rule 59 of the Utah Rules of Civil Procedure. Her motion was denied by the trial court in a signed minute entry dated April 6, 2004. Martinez filed her notice of appeal from the April 6 minute entry on May 7, 2004.

Rule 4 of the Utah Rules of Appellate Procedure requires that a notice of appeal be filed within thirty days from the entry of the final judgment. See Utah R. App. P. 4(a). The time for filing an appeal is tolled, however, by the filing of certain postjudgment motions, including a motion for new trial under Utah Rule of Civil Procedure 59. See Utah R. App. P. 4(b). When a timely rule 59 motion has been filed, the time for filing the notice of appeal will run from the order disposing of the motion. See id. Martinez's counsel filed a timely motion for new trial pursuant to rule 59 of the Utah Rules of Civil Procedure, thus tolling the time for appeal. The court disposed of Martinez's motion by the signed minute entry dated April 6, 2004.

It is well established that a signed minute entry "may be a final order for purposes of appeal." Dove v. Cude, 710 P.2d 170, 171 n.1 (Utah 1985); see also Cannon v. Keller, 692 P.2d 740, 741 n.1 (Utah 1984). The signed minute entry may be final if "the ruling specifies with certainty a final determination of the rights of the parties and is susceptible of enforcement." Cannon, 692 P.2d at 741 n.1. In this case, the minute entry disposed of Martinez's motion and gave a rationale for the court's decision. It determined the rights of the parties without requiring any further action. Cf. State v. Leatherbury, 2003 UT 2,¶9, 65 P.3d 1180 (noting minute entry not a final order where further action contemplated by the express language of the order requiring counsel to prepare findings). As a result, it is a final order for purposes of appeal, and the time for filing the notice of appeal began to run from that date. See Utah R. App. P. 4(b).

Martinez filed her notice of appeal thirty-one days after the signed minute entry disposing of her motion for new trial. Because it was not filed within thirty days, the notice of appeal is untimely. If an appeal is not timely filed, this court lacks jurisdiction to hear the appeal. See Utah R. App. P. 4; Serrato v. Utah Transit Auth., 2000 UT App 299,¶7, 13 P.3d 616. Once this court determines 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. 1989).

Accordingly, we dismiss this appeal.

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Russell W. Bench,

Associate Presiding Judge

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Pamela T. Greenwood, Judge

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Gregory K. Orme, Judge