MBNA America Bank v. Davis

MBNA America Bank v. Davis

IN THE UTAH COURT OF APPEALS
 

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MBNA America Bank, N.A.,

Plaintiff and Appellee,

v.

Toni M. Davis,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040993-CA
 

F I L E D
(February 25, 2005)
 

2005 UT App 83

 

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Third District, Silver Summit Department

The Honorable Bruce C. Lubeck

Attorneys: Toni M. Davis, Park City, Appellant Pro Se

R. Bradley Neff and Tefton J. Smith, Sandy, for Appellee

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Before Judges Greenwood, Jackson, and Thorne.

PER CURIAM:

    This case is before the court on its own motion and on Appellee MBNA America Bank's (MBNA) motion for summary disposition on the basis that this court lacks jurisdiction and that the issues presented are so insubstantial as to not merit further consideration by the court.(1) See Utah R. App. P. 10.

    Appellant Toni M. Davis was a holder of an MBNA credit card. The contract by the bank for use of the credit card contained an agreement that disputes would be arbitrated by National Arbitration Forum (NAF). At some point Davis wrote a letter to MBNA stating that the letter served to modify the contract to arbitrate disputes through Consumer Arbitration Forum (CAF). Subsequently both parties initiated arbitration through their respective chosen forums and each received an arbitration award in their favor.

    MBNA filed an action in district court to confirm the NAF arbitration award. The district court issued a final judgment confirming MBNA's arbitration award on July 2, 2004. On July 6, 2004, Davis filed an objection to the form of the judgment.(2) In her objection Davis argued the judgment was inaccurate because it was unclear as to the time and percentage of interest covered in the award. She also objected on the basis that the judgment contained no language regarding her filing of various motions, nor her responses and replies to MBNA's initial motion to confirm the arbitration award. The district court overruled Davis's objections in an order issued August 2, 2004 and determined that the final judgment would stand.

    On August 16, 2004, Davis filed a motion for a new trial, or in the alternative, motion to alter, amend, or vacate the judgment. She cited rule 59(a)(1) of the Utah Rules of Civil Procedure as the basis for the motion. On October 6, 2004, the district court issued a signed minute entry decision that specifically stated that the minute entry would constitute the order. The order denied Davis's August 16, 2004 motion on the basis that it was untimely and, assuming it had been timely, was without merit. The court pointed out that post-judgment motions made pursuant to rule 59 must be filed no later than ten days after entry of the judgment. See Utah R. Civ. P. 59(b). Davis's motion was filed forty five days after entry of the judgment.

    Because Davis's post-judgment motion was untimely, the deadline for filing a notice of appeal ran from issuance of the final judgment, not the ruling on the post-judgment motion. See Bonneville Billing & Collection v. Torres, 2000 UT App 338,¶3, 15 P.3d 112. Therefore, the notice of appeal, filed on November 5, 2004, was untimely filed, well beyond thirty days from issuance of the final judgment on July 2, 2004. See Utah R. App. P. 4(a).

    When a post-judgment motion is untimely, this court lacks jurisdiction over an appeal of the judgment and an appeal of the denial of the post-judgment motion on the basis that it was untimely. See Burgers v. Maiben, 652 P.2d 1320, 1322 (Utah 1982). Once this 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. 1989).

    Accordingly, this appeal is dismissed for lack of jurisdiction.

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Pamela T. Greenwood, Judge

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Norman H. Jackson, Judge

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William A. Thorne Jr., Judge

1. Because we resolve the case on jurisdictional grounds, we do not address the substantial or insubstantial nature of the issues presented.

2. Because Davis had apparently not been afforded an opportunity to object prior to entry of the judgment, the trial court allowed Davis to file any objection and reserved ruling on whether to allow the original judgment to stand as issued.