Loes v. Tebbs (In re Rice)

Loes v. Tebbs (In re Rice)

IN THE UTAH COURT OF APPEALS
 

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In the Matter of the Trusts of Robert Rice.

______________________________

Robin Loes and A. Kristine Cosgrove,

Petitioners and Appellees,

v.

Clement F. Tebbs,

Other Party and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030622-CA
 

F I L E D
(August 12, 2004)
 

2004 UT App 269

 

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Third District, Salt Lake Department

The Honorable Sandra N. Peuler

Attorneys: Russell Cline, Salt Lake City, for Appellant

Charles M. Bennett, Salt Lake City, for Appellees

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Before Judges Bench, Davis, and Greenwood.

PER CURIAM:

This case is before the court on its own motion for summary dismissal for lack of jurisdiction as a result of an untimely notice of appeal. See Utah R. App. P. 10. Neither party responded to this court's motion. A final judgment issued from the trial court June 19, 2003. Appellant filed a notice of appeal on July 15, 2003.(1) After the notice of appeal was filed, a motion to amend the judgment was filed, which the trial court granted and issued an amended judgment on March 5, 2004. A motion to amend the judgment tolls the time for filing a notice of appeal. See Utah R. App. P. 4(b). Moreover, a notice of appeal filed prior to disposition of such a motion has no effect and a new notice must be filed after ruling on the motion to amend judgment. Id.

The notice of appeal, filed on July 15, 2003, therefore, has no effect. The trial record contains no notice of appeal filed after ruling on the motion to amend judgment. As a result this court lacks jurisdiction because no timely notice of appeal was filed. Once the 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 the appeal.

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Russell W. Bench,

Associate Presiding Judge

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James Z. Davis, Judge

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Pamela T. Greenwood, Judge

1. The notice of appeal bears two date stamps, one indicates filing on July 15, 2003 and the other indicates filing on July 23, 2003. However, for purposes of this decision, it does not matter which is the correct date. If the notice of appeal was filed on July 23, 2003, it would have been untimely from the final judgment regardless of the tolling of the time for filing the notice resulting from the motion to amend judgment.