Davis v. Holladay

Davis v. Holladay

IN THE UTAH COURT OF APPEALS
 

----ooOoo----

Robert L. Davis and Jenean Brothers, each on their own behalf and also as the natural parents of Bryan R. Davis; and Robert L. Davis, as the personal representative of the Estate of Bryan R. Davis,

Plaintiffs and Appellants,

v.

Clark Holladay; David Dye; Dr. Robert Jeppson, D.O.; John Reeves; Debbie Sperry; Ed Kren; and Central Utah Counseling Center,

Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040831-CA
 

F I L E D
(January 27, 2005)
 

2005 UT App 31

 

-----

Fourth District, Nephi Department

The Honorable James R. Taylor

Attorneys: Robert L. Davis, American Fork, Appellant Pro Se

Clifford C. Ross, Salt Lake City, for Appellees

-----

Before Judges Billings, Greenwood, and Thorne.

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. Also before the court is Appellee Central Utah Counseling Center's (CUCC) motion for summary disposition on the basis of lack of jurisdiction and on the basis that the trial court's ruling from which Appellant Davis appeals, issued August 11, 2004, should be summarily affirmed.

    The basis on which CUCC claims lack of jurisdiction is that Davis had already filed an appeal from the final judgment issued in the case, resulting in case number 20040544-CA, currently pending in this court. That appeal was pending at the time this appeal was initiated and at the time the trial court issued the August 11, 2004 order denying Davis's post-judgment motion. CUCC's argument appears to be that this court lacks jurisdiction because the first notice of appeal divested the trial court of jurisdiction and places jurisdiction with this court. It is unclear how this reasoning leads to the conclusion that this court is divested of jurisdiction. CUCC's other jurisdictional argument is that the trial court's order was issued August 11, 2004, but Davis did not file his notice of appeal until September 23, 2004, beyond thirty days as required. See Utah R. App. P. 4(a). Therefore, CUCC claims lack of jurisdiction based on the untimely notice of appeal.

    The trial court issued its final judgment in this matter on February 24, 2004. Davis filed a notice of appeal from that final judgment. On June 17, 2004, Davis also filed a motion for relief from that ruling pursuant to rule 60(b) of the Utah Rules of Civil Procedure in the trial court. The trial court denied that motion in a ruling issued on August 11, 2004. Davis then filed a notice of appeal on September 23, 2004 based on the denial of his rule 60(b) motion. This appeal resulted.

    CUCC maintains that Davis may not file appeals from both the final judgment and the denial of the post-judgment motion. As this court indicated in the order issued in case number 20040544-CA, Davis may separately appeal the final judgment and the ruling on the post-judgment motion. See Amica Mut. Ins. Co. v. Schettler, 768 P.2d 950, 970 (Utah Ct. App. 1989).

    In this case, however, the notice of appeal was untimely filed, beyond thirty days from issuance of the denial of Davis's post-judgment motion. See Utah R. App. P. 4(a). Davis correctly points out that he filed in the trial court a timely motion to extend the time to file the notice of appeal. The trial court, however, denied that motion in a minute entry issued October 7, 2004.(1) As a result, the notice of appeal is untimely filed and this court lacks jurisdiction. See State v. Putnik, 2002 UT 122,¶10, 63 P.3d 91. Once a court has determined 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. 1998). Because we lack jurisdiction, we do not
address whether the trial court's ruling should be summarily affirmed.

    The appeal is dismissed for lack of jurisdiction.

______________________________

Judith M. Billings,

Presiding Judge

______________________________

Pamela T. Greenwood, Judge

______________________________

William A. Thorne Jr., Judge

1. Davis did not appeal the trial court's ruling on his motion for an extension to file his notice of appeal and, as a result, this court may not consider whether the trial court erred in determining it lacked jurisdiction to consider the motion and that the request was moot based upon the first existing appeal.