D.T. v. State (In re M.T.)

D.T. v. State (In re M.T.)

IN THE UTAH COURT OF APPEALS
 

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State of Utah, in the interest of M.T., S.T., and S.T., persons under eighteen years of age.

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D.T. and C.T.,

Appellants,

v.

State of Utah,

Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040125-CA

Case No. 20040283-CA
 

F I L E D
(September 30, 2004)
 

2004 UT App 344

 

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Second District Juvenile, Farmington Department

The Honorable Kathleen M. Nelson

Attorneys: D.T. and C.T., Bountiful, Appellants Pro Se

Mark L. Shurtleff and Carol L. Verdoia, Salt Lake City, for Appellee

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Before Judges Davis, Jackson, and Orme.

PER CURIAM:

    D.T. and C.T. (the parents) seek to appeal from the adjudication order and from the subsequent denial of their motion for new trial. The State of Utah filed a motion for summary disposition in Case No. 20040125-CA on the basis that this court lacks jurisdiction because the notice of appeal was filed before the disposition of a timely motion for new trial. Based upon our review of the juvenile court record, we determine that we lack jurisdiction over both Case No. 20040125-CA and the second appeal filed by parents as Case No. 20040283-CA.

    The juvenile court held an adjudication hearing on August 4 and 8, 2003. On January 7, 2004, before entry of the adjudication order, the parents filed a motion for new trial. After the court's entry of the Findings of Fact, Conclusions of Law and Order on the State's petition on January 9, 2004, the parents filed a notice of appeal, which was assigned our Case No. 20040125-CA. The juvenile court heard the motion for new trial on March 3, 2004. On April 5, 2004, the parents filed a second notice of appeal seeking to appeal the denial of their motion for new trial. However, the juvenile court did not sign and enter its Order Denying Motion for New Trial until May 17, 2004.

    Rule 4(b) of the Utah Rules of Appellate Procedure states, in part:

If a timely motion under the Utah Rules of Civil Procedure is filed in the trial court by any party . . . under rule 59 [of the Utah Rules of Civil Procedure] for a new trial, the time for appeal for all parties shall run from the entry of the order denying a new trial. . . . A notice of appeal filed before the disposition of any of the above motions shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order of the trial court disposing of the motion as provided above.

    The parents filed a timely motion for new trial under rule 59. See Hudema v. Carpenter, 989 P.2d 491, 496-97 (Utah Ct. App. 1999) (stating a motion for new trial filed before entry of judgment is timely under rule 59). Filing the motion for new trial tolled the time for appeal until after entry of a signed order disposing of the motion. See Swenson Assocs. Architects, P.C. v. State, 889 P.2d 415, 417 (Utah 1994) ("When a party files a post-judgment motion pursuant to . . . rule 59, a notice of appeal must be filed after the order disposing of the motion is entered in order to vest jurisdiction in this court."). Both the original notice of appeal filed on February 6, 2004, and the second notice of appeal filed on April 5, 2004, were filed before entry of the order denying the motion for new trial on May 17, 2004. Accordingly, neither notice of appeal vested jurisdiction in this court. See id. at 417 (rejecting argument that premature notice of appeal filed after announcement of ruling, but before entry of order on rule 59 motion, could be deemed timely).

    Both notices of appeal were filed prior to entry of a signed order denying the motion for new trial. Accordingly, neither notice of appeal conferred jurisdiction on this court. See Utah R. App. P. 4(b) ("A notice of appeal filed before the disposition of [a motion for new trial] shall have no effect."). "Lack of jurisdiction can be raised at any time by either party or by the court." Olson v. Salt Lake City Sch. Dist., 724 P.2d 960, 964 (Utah 1986). Once this court determines that it lacks jurisdiction over an appeal, we retain "only the authority to dismiss the action." Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989). Accordingly, we dismiss both appeals for lack of jurisdiction.

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James Z. Davis, Judge

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Norman H. Jackson, Judge

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Gregory K. Orme, Judge