Burgess Company v. Riverside

Burgess Company v. Riverside

IN THE UTAH COURT OF APPEALS
 

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The Burgess Company,

Plaintiff and Appellee,

v.

Riverside Mobile Home Park, L.L.C.; Robert R. Busch, an individual;
D. Gregory Hales, an individual; S and
M Co., an L.L.C.; and B and B, a Utah Co.,

Defendants and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20041028-CA
 

F I L E D
(April 28, 2005)
 

2005 UT App 194

 

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Third District, Salt Lake Department

The Honorable Stephen L. Henriod

Attorneys: Barry N. Johnson and David M. Kono, Salt Lake City, for Appellant

Robert S. Campbell and Scott M. Lilja, Salt Lake City, for Appellee

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Before Judges Davis, Jackson, and Thorne.

PER CURIAM:

    This case is before the court on a sua sponte motion for summary disposition on the basis that the appeal is not taken from a final appealable judgment. The parties filed a joint memorandum requesting the court to consider the judgment as if it were a final judgment or to stay the appeal pending disposition of a request for certification under Utah Rules of Civil Procedure 54(b) in the trial court. Because we lack jurisdiction over the appeal, "we retain only the authority to dismiss the action." Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989).

    The parties filed cross-motions for summary disposition of the appeal of Riverside Mobile Home Park, L.L.C. (Riverside) on its merits. However, our review of the record revealed that no final judgment had been entered because claims against the individual defendants remained pending in the district court. In addition, the partial judgment disposing of claims against Riverside was not certified under rule 54(b) of the Utah Rules of Civil Procedure, nor did either appellate court give the parties permission to pursue an interlocutory appeal under rule 5 of the Utah Rules of Appellate Procedure.

    In response to the sua sponte motion, the parties question whether rule 54(b) applies, stating:

The principal claim in the Lawsuit involved Burgess's claim against Riverside for a real estate commission. The remaining claims against the Additional Defendants involved the secondary issue of potential recovery for supposed disbursement of funds from Riverside to its principals.

    It is implicit in the carefully worded joint response that only the claims against Riverside were resolved. The parties, in effect, request the court to overlook the jurisdictional defect that neither a final judgment, nor an order satisfying rule 54(b), has been entered and to allow the appeal to go forward based upon their acquiescence. They cite statements from the district court that suggest the judgment against Riverside may have been eligible for certification because the partial summary judgment wholly disposed of a party. See West v. Thomson Newspapers, 835 P.2d 179, 183 (Utah Ct. App. 1992) (stating analysis regarding separateness of claims does not apply to certification of final judgments against separate parties), rev'd, on other grounds, 872 P.2d 999 (Utah 1994). Nevertheless, those statements do not demonstrate that the court considered or granted a request for certification under rule 54(b).

    This case is governed by well-established case law. In A.J. MacKay Co. v. Okland Construction Co., 817 P.2d 323 (Utah 1991), the Utah Supreme Court considered an appeal taken from a judgment that was not final because a counterclaim was pending before the trial court. See id. at 325. Although both parties wanted the appeal to go forward, the supreme court stated that "acquiescence of the parties is insufficient to confer jurisdiction on the court, and a lack of jurisdiction may be raised by the court or either party at any time." Id. "The final judgment rule . . . precludes a party from taking an appeal from any orders or judgments that are not final" unless the order "has been properly certified" under rule 54(b) of the Utah Rules of Civil Procedure or the appellate court has "given permission in advance to the parties to take an appeal from an interlocutory order under" rule 5 of the Utah Rules of Appellate Procedure. Id. Rejecting the parties' request that the appeal be allowed to go forward, the court stated "given the fact that we have routinely dismissed appeals that were improperly taken, even after briefing and argument, we bear a heavy burden of justification when we single out one improperly taken appeal for preferential treatment that has been denied so many others." Id.

    The final judgment rule is consistently applied as a prerequisite to appellate jurisdiction. "For a judgment or order to be final, it 'must dispose of the case as to all the parties, and finally dispose of the subject-matter of the litigation on the merits of the case.'" In re Southern Am. Ins. Co., 930 P.2d 276, 278 (Utah Ct. App. 1996) (citations omitted). "In other words, a judgment is final when it 'ends the controversy between the parties litigant.'" Id. Specifically noting that "the order appealed from was eligible for certification," but was not certified, nor did this court or the supreme court give the parties permission to file an interlocutory appeal, the court concluded that it lacked jurisdiction under these exceptions to the final judgment rule. Id. at 279. Finally, the court declined to extend extraordinary treatment to the case, particularly because the appealing party could have sought certification, but failed to do so. See id.

    Rule 54(b) of the Utah Rule of civil Procedure allows the trial court to "direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination by the court that there is no just reason for delay and upon an express direction for the entry of judgment." Utah R. Civ. P. 54(b) (emphasis added). The rule continues:

In the absence of such determination and direction, any order or other form of decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. Id.

In addition, an order certifying a judgment as final under rule 54(b) must include "findings supporting the conclusion that such orders are final." Bennion v. Pennzoil Co., 826 P.2d 137, 139 (Utah 1992). Finally, an order certifying a judgment as final for purposes of appeal must contain a brief explanation of the trial court's "rationale as to why there is no just reason for delay." Id. No order satisfying the requirements of rule 54(b) and Bennion was entered in this case.

    We dismiss the appeal for lack of jurisdiction, without prejudice to a timely appeal taken after entry of a final judgment disposing of the case in its entirety or after the entry of an order by the district court certifying the partial judgment against Riverside as final for purposes of appeal under rule 54(b) of the Utah Rules of Civil Procedure.

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James Z. Davis, Judge

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Norman H. Jackson, Judge

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William A. Thorne Jr., Judge