Hiatt v. Victor Plastering

Hiatt v. Victor Plastering

IN THE UTAH COURT OF APPEALS
 

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Gene Hiatt and Jane Hiatt,

Plaintiffs and Appellees,

v.

Victor Plastering, Inc.,

Defendant and Appellant,

and

Affordable Business and Contractor Insurance, Inc.,

Third-party Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040774-CA
 

F I L E D
(March 17, 2005)
 

2005 UT App 125

 

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Fourth District, Provo Department

The Honorable Derek P. Pullan

Attorneys: Ronald Ady, Salt Lake City, for Appellant

Stephen Quesenberry, Provo, for Appellees

Gene Hiatt and Jane Hiatt

Kirk G. Gibbs, Salt Lake City, for Appellee Affordable Business and Contractor Insurance, Inc.

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Before Judges Greenwood, Jackson, and Thorne.

PER CURIAM:

    This case is before the court on a sua sponte motion for summary disposition for lack of jurisdiction under rule 4(b) of the Utah Rules of Appellate Procedure.

    Appellant Victor Plastering, Inc. now concedes that its postjudgment motion for a new trial was not timely and did not extend the time for appeal under rule 4(b) and contends that the appeal may go forward on a notice of appeal filed after entry of the August 5, 2004 judgment. However, review of the record demonstrates that the appeal was not taken from a final appealable judgment due to postjudgment motions seeking an award of attorney fees and prejudgment interest.(1) The express language of the August 5, 2004 judgment provided that the "judgment may be augmented pursuant to post-judgment motions for attorney[] fees and costs, prejudgment interest, [and] costs of collection." Those motions were filed, but were ultimately denied by the district court after a hearing. The district court directed counsel for Victor Plastering to prepare a written order for the court's signature, but no order had been entered when the notice of appeal was filed.

    This case is not distinguishable from ProMax Dev. Corp. v. Raile, 2000 UT 4, 998 P.2d 254. In ProMax, the district court entered a judgment after a bench trial, which stated that the plaintiff's complaint was dismissed on the merits "with costs being awarded to the [Railes] afer an appropriate hearing on taxation of costs." Id. at ¶8. After entry of the judgment on the merits of the complaint, the district court entered several orders awarding attorney fees and costs. ProMax appealed from the judgment dismissing its complaint, and Raile cross-appealed from the award of attorney fees and costs. See id.

    Raile moved to dismiss ProMax's appeal, contending that the judgment entered on the merits after trial, but before the award of a specific amount of costs and attorney fees, was final and appealable and ProMax had failed to file a timely appeal. See id. at ¶10. The Utah Supreme Court disagreed, stating, in part:

Where attorney fees are awarded to a party, whether denominated as an item of "costs" or not, and the amount is not stated in the judgment rendered on the merits of the case, and evidence must be taken afterwards by the trial court either by affidavit or live testimony, there is no final judgment for purposes of appeal until the amount of fees has been ascertained and granted.

Id. at ¶12. Accordingly, the supreme court held that "in the interest of judicial economy, a trial court must determine the amount of attorney fees awardable to a party before the judgment becomes final for purposes of an appeal under Utah Rule of Appellate Procedure 3." PoMax, 2000 UT 4 at ¶15.

    In this case, the district court apparently denied motions seeking attorney fees and prejudgment interest in an oral ruling after a hearing. The fact that the motions were denied does not compel a different result from that in ProMax. The August 5, 2004, judgment contemplated postjudgment motions for attorney fees, costs, and/or prejudgment interest and stated that the judgment "may be augmented pursuant to post-judgment motions." The judgment entered after the jury trial, but before determination of the postjudgment motion for attorney fees, was not final and appealable. We need not address whether the motion for prejudgment interest also affected finality.

    As in ProMax, we "dismiss the appeal without prejudice for lack of jurisdiction inasmuch as [the Hiatts] have a motion pending before the trial court which renders the judgment entered by the trial court non-final." Id. at ¶16. "A new appeal must be filed within thirty days after the trial court enters a formal order on [the Hiatts'] motion." Id. Thus, we dismiss the appeal for lack of jurisdiction without prejudice to a timely appeal filed after entry of a final judgment.

______________________________

Pamela T. Greenwood, Judge

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Norman H. Jackson, Judge

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William A. Thorne Jr., Judge

1. The record also reflects that Gene and Jane Hiatt asserted in the context of their postjudgment motions for prejudgment interest and attorney fees that the August 5, 2004, judgment was not final and appealable, based on ProMax Dev. Corp. v. Raile, 2000 UT 4, 998 P.2d 254. Affordable Business and Contractor Insurance, Inc. raised the issue in response to the sua sponte motion. Victor Plastering, Inc. was on notice of the jurisdictional defect.