Blackmore v. Cannon

Blackmore v. Cannon

IN THE UTAH COURT OF APPEALS
 

----ooOoo----

L. Lane Blackmore; Blackmore/Cannon Development Company, LLC;
and The Home Company, Inc.,

Plaintiffs and Appellants,

v.

Lester E. Cannon; L&D Development, Inc.; Shadow Canyon Land Company, LLC; Shadow Glen 420, Inc.; Gemstone Home, Inc.; Frank Lindhardt; Eugene L. Buckley; Birthe Marie Cannon; Thomas J. Bayles; Snow Jensen & Reece; Dale KY Hathcock; Southern Utah Title Company; The Village Bank, Inc.; US Bancorp dba US Bank; Unknown Persons 1-3; Unknown Persons 4-100; Unknown Persons 101-105; Unknown Persons 106 and 107; Unknown Persons 108-110; Marci Tillery; David Wright; Chance T. Wright; Dusty Wright; Emily Wright; Naomi McCormick; Mandy Cox; Ashlee McDaniel; Diane Meikle; Cynthia L. Chapman; Russel E. Cannon; Amy M. Barney; Mindy Cox; and Matthew Cannon,

Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20050427-CA
 

F I L E D
(May 26, 2005)
 

2005 UT App 245

 

-----

Fifth District, St. George Department, 030501322

The Honorable James L. Shumate

Attorneys: Patrick J. Ascione, Justin D. Heideman, and Justin R. Elswick, Provo, for Appellants

Terry L. Wade and Bryan J. Pattison, St. George, for Appellee The Village Bank, Inc.

-----

Before Judges Billings, Jackson, and Orme.

PER CURIAM:

    Plaintiffs and Appellants (collectively Blackmore) appeal the trial court's order releasing their lis pendens against property in dispute in the underlying case. The trial court certified the order as final under Utah Rule of Civil Procedure 54(b). This is before the court on The Village Bank, Inc.'s motion to dismiss for lack of jurisdiction due to an improperly certified order.

    Utah Rule of Civil Procedure 54(b) permits a trial court to "direct the entry of a final judgment as to one or more but fewer than all of the claims or parties" in a matter involving either multiple claims or multiple parties. Utah R. Civ. P. 54(b). The trial court may direct the entry of a final judgment "only upon an express determination" that there is no just reason for delay. Id. The effect of directing a final judgment for a partial disposition of a case is to make the specified final judgment immediately appealable, although the remainder of the case goes forward in the trial court. See id.; Kennecott Corp. v. Utah State Tax Comm'n, 814 P.2d 1099, 1102 (Utah 1991) (stating rule 54(b) provides trial courts with authority to "certify a certain class of orders and thereby make them appealable as of right").

    The question of whether an order is eligible for certification under rule 54(b) is a question of law. See Kennecott Corp., 814 P.2d at 1100. Certain requirements must be met before an order is properly certifiable under rule 54(b). First, the action must involve multiple claims for relief or multiple parties; second, the judgment appealed must be an order that would be appealable if there were no other claims or parties remaining in the action; third, the trial court must make the specific determination that there is no just reason for delay. See id. at 1101.

    The second element is a finality requirement. The certified order must be a "final judgment as to one or more but fewer than all of the claims or parties." Utah R. Civ. P. 54(b). "[A]n order that does not wholly dispose of a claim or a party is not 'final' under rule 54(b) and will not be appealable, even with such a certification." Pate v. Marathon Steel Co., 692 P.2d 765, 768 (Utah 1984).

    The order appealed from here is clearly not a final order eligible for certification under rule 54(b). It does not dispose of any claim or party, but merely addresses a notice issue collateral to the litigation itself. Blackmore acknowledges that the order does not dispose of any claim in both the docketing statement and the memorandum in opposition to the dismissal. The docketing statement notes that all parties and claims remain before the trial court. The memorandum states that the trial court's order "does not address any actual causes of action or claims." Because the order does not dispose of any claim or party, it is not within the scope of rule 54(b). As a result, this court lacks jurisdiction to hear this appeal.

    Alternatively, Blackmore requests that this court treat the notice of appeal as a petition for interlocutory appeal. We decline this invitation. The order relates only to a collateral matter. Thus, an interlocutory appeal will not advance the litigation nor affect its outcome.

    Accordingly, this appeal is dismissed.

______________________________

Judith M. Billings,

Presiding Judge

______________________________

Norman H. Jackson, Judge

______________________________

Gregory K. Orme, Judge