Ostler v. SLCC

IN THE UTAH COURT OF APPEALS

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Neal K. Ostler,

Plaintiff and Appellant,

v.

Salt Lake Community College,

Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040145-CA
 

F I L E D
(April 22, 2004)
 

2004 UT App 125

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Third District, Salt Lake Department

The Honorable Glenn K. Iwasaki

Attorneys: Neal K. Ostler, Park City, Appellant Pro Se

Mark L Shurtleff, Nancy L. Kemp, and Morris O. Haggerty, Salt Lake City, for Appellee

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Before Judges Billings, Orme, and Thorne.

PER CURIAM:

This is the second appeal taken from the dismissal of Ostler's complaint against Salt Lake Community College (SLCC). We dismissed his first appeal for lack of jurisdiction because the original notice of appeal was filed before entry of a signed order denying a timely motion to alter or amend the judgment under rule 59 of the Utah Rules of Civil Procedure, and no timely notice of appeal was filed after entry of the order, as required by rule 4(b) of the Utah Rules of Appellate Procedure. On February 18, 2004, Ostler filed a document captioned "Fresh Notice of Appeal." This case is before the court on a sua sponte motion for summary dismissal.

Contrary to Ostler's claims, his first appeal was dismissed for lack of jurisdiction based upon an untimely notice of appeal.

See Ostler v. Salt Lake Comm. College, 2004 UT App 18,¶6. That appeal is not currently pending in either appellate court.(1) Similarly, Ostler's claims of uncertainty about the date on which the time for appeal commenced to run are without merit. As we previously held, the time for appeal from the summary judgment commenced on October 17, 2003, the date of entry of the order denying the timely rule 59 motion, and Ostler failed to file a notice of appeal within thirty days after that date. See id. Similarly, the time to appeal from the separately appealable order denying the motion to set aside the judgment under rule 60(b) of the Utah Rules of Civil Procedure commenced on November 3, 2003, the date of entry of the order denying that motion, and Ostler also failed to file a timely notice of appeal within thirty days after that date. See id. The so-called "fresh" notice of appeal was filed on February 18, 2004, which was over four months after entry of the order denying the rule 59 motion and over three months afer entry of the order denying the rule 60(b) motion. Therefore, this notice of appeal is also untimely.

Ostler did not move the trial court to extend the time for appeal under rule 4(e) of the Utah Rules of Appellate Procedure, and the time for making such a motion has expired. See Utah R. App. P. 4(e) (allowing motion to extend appeal time to be filed in trial court no later than thirty days after expiration of the original thirty-day appeal period). We are precluded from suspending or modifying either rule 4(a) or rule 4(e) of the Utah Rules of Appellate Procedure. See Utah R. App. P. 2 (precluding appellate courts from suspending operation of rules setting certain time limits on appeal); see also Utah R. App. P. 22(b)(2) (precluding appellate courts from granting an extension of the time for filing a notice of appeal). Accordingly, we deny Ostler's request in the "fresh" notice of appeal for an extension under rule 4(e) or rule 22.

Ostler also claims that the district court failed to rule on motions and other pleadings he filed before dismissal, so no final judgment has been entered. This assertion is also without merit. In granting SLCC's motion for summary judgment, the district court necessarily denied Ostler's cross-motion for summary judgment. Indeed, the order granting SLCC's summary judgment fully disposed of any remaining issues by dismissing the complaint, and the summary judgment was final and appealable following entry of the October 17, 2003 order denying the rule 59 motion.

Timely filing of a notice of appeal is a jurisdictional prerequisite; therefore, when a notice of appeal is untimely, we lack jurisdiction to consider the appeal. See Serrato v. Utah Transit Auth., 2000 UT App 299,¶17, 13 P.3d 616. Despite Ostler's intention to correct the jurisdictional defects in his appeal, refiling of a "fresh," but untimely, notice of appeal cannot revive or reinstate his appeal. Having concluded that we lack jurisdiction notwithstanding the "fresh" notice of appeal, we "[retain] 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.

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Judith M. Billings,

Presiding Judge

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Gregory K. Orme, Judge

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William A. Thorne Jr., Judge

1. Ostler misconstrues the grounds for dismissal of his earlier appeal. Although both the appeal in Case No. 20030827 and the present appeal result from a civil case, not involving domestic relations, and were within the original jurisdiction of the Utah Supreme Court, both appeals were properly transferred to this court for disposition. See Utah Code Ann. § 78-2a-3(2)(j) (2002) (stating this court has appellate jurisdiction over cases transferred to it by the supreme court); id. at § 78-2-2(4) (2002).