Turville v. J&J Properties

Turville v. J&J Properties

IN THE UTAH COURT OF APPEALS
 

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Scott R. Turville,

Plaintiff and Appellant,

v.

J&J Properties, L.C.; James W. Ritchie; John Quitiquit; John T. Clark; Sherlene Clark; Clark Properties, Inc.; Tri-J Properties, L.L.C., and Does 1-50,

Defendants and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040531-CA
 

F I L E D
(October 28, 2004)
 

2004 UT App 389

 

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Third District, Salt Lake Department

The Honorable Tyrone E. Medley

Attorneys: Brian W. Steffensen, Salt Lake City, for Appellant

R. Willis Orton and Romaine C. Marshall, Salt Lake City, for Appellees

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Before Judges Bench, Davis, and Orme.

PER CURIAM:

This case is before the court on Appellee's J&J Properties motion for summary dismissal on the basis of lack of jurisdiction. See Utah R. App. P. 10. Specifically, J&J Properties contends that the judgment issued by the trial court on May 11, 2004, was not final and appealable because it did not resolve the issue of attorney fees. See ProMax Dev. Corp. v. Raile, 2000 UT 4,¶10, 998 P.3d 254. J&J Properties requests costs, sanctions, and attorney fees, pursuant to rules 33 and 34 of the Utah Rules of Appellate Procedure, claiming that the appeal is frivolous and filed for purposes of delay.

Turville concedes that the appeal is premature, and, therefore, untimely. He disputes, however, that the appeal is frivolous or filed for purposes of delay, justifying sanctions. Turville contends that he did not withdraw the appeal, despite J&J Properties' urging, because he was waiting to see if the trial court would quickly resolve the attorney fees issue, thereby alleviating the necessity of refiling the appeal.

The notice of appeal was, in fact, premature because the order issued May 11, 2004 did not resolve the issue of attorney fees. See Loffredo v. Holt, 2001 UT 97,¶12, 37 P.3d 1073; Promax Dev. Corp., 2000 UT 4,¶15 (the amount of attorney fees must be resolved in order for a judgment to be final). Because the notice of appeal was premature, this court lacks jurisdiction over the appeal. See Loffredo, 2001 UT 97 at ¶17. When this court lacks jurisdiction it must dismiss the appeal. See id. at ¶11.

Accordingly, the appeal is dismissed without prejudice to filing a new appeal upon issuance of a final judgment. J&J Properties' request for costs and sanctions is granted to the extent that Turville will be assessed the costs and attorney fees to J&J Properties incurred in filing the motion for summary disposition because Turville was made aware that the appeal was premature and that, if the appeal was not voluntarily withdrawn, J&J Properties would be compelled to file the motion and would seek sanctions.

J&J Properties' requests for costs and fees based on the appeal being frivolous is denied. This matter is remanded for the trial court to determine the amount of costs and attorneys fees incurred in filing the motion for summary disposition.

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Russell W. Bench,

Associate Presiding Judge

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James Z. Davis, Judge

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Gregory K. Orme, Judge