Provo City v. Ivie

Provo City v. Ivie

IN THE UTAH COURT OF APPEALS
 

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Provo City,

Plaintiff and Appellee,

v.

Kay J. Ivie, Devon R. Ivie, Kristine J. Lee, Edward R. Lee, Spring Canyon Limited Partnership, Canyon Acres Limited Partnership, Robert Lee Kenner, and Kirma P. Kenner,

Defendants and Appellants.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20041044-CA
 

F I L E D
(March 24, 2005)
 

2005 UT App 149

 

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Fourth District, Provo Department

The Honorable Gary D. Stott

Attorneys: M. Dayle Jeffs, Provo, for Appellants

Robert D. West and David C. Dixon, Provo, for Appellee

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Before Judges Davis, Jackson, and Thorne.

PER CURIAM:

    Kay J. Ivie, Devon R. Ivie, Kristine J. Lee, Edward R. Lee, and Spring Canyon Limited Partnership appeal the order denying their motion for attorney fees and expenses. This case is before the court on Provo City's motion to dismiss the appeal for lack of jurisdiction on grounds that it is not taken from a final appealable order.

    In the previous interlocutory appeal from the Order of Immediate Occupancy, the Utah Supreme Court held:

Because Provo City has not established that it has adopted a charter pursuant to the procedures set forth in article XI, section
5 of the Utah Constitution, the district court erred in ruling that Provo City may exercise the powers granted to chartered municipalities under that section. Moreover, Provo City has failed to demonstrate that, in this case, it is entitled to exercise extraterritorial condemnation powers under the Transportation Corridor Preservation Act. Therefore, since Provo City has not presented any other statutory basis upon which it is empowered to condemn property outside its incorporated municipal boundaries, we reverse.

Provo City v. Ivie, 2004 UT 30,¶18, 94 P.3d 206.

    Following remand, Appellants filed a "Motion for Award of Attorneys Fees and Expenses." Appellants relied upon the Ivie decision and upon the fact that Provo entered an agreement with Utah County, under which Utah County initiated condemnation proceedings as to the property. Appellants claimed that Provo City had abandoned the condemnation, and they were entitled to recover attorney fees, costs, and expenses under Utah Code section 78-34-16 (2002). The district court ruled that Provo had not abandoned the condemnation proceeding. The Order of November 8, 2004 was limited to denying the motion seeking attorneys fees and expenses.

    "This court does not have jurisdiction over an appeal unless it is taken from a final judgment, Utah R. App. P. 3(a), or qualifies for an exception to the final judgment rule." Loffredo v. Holt, 2001 UT 97,¶10, 37 P.3d 1070. "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 So. Am. Ins. Co., 930 P.2d 276, 278 (Utah Ct. App. 1996) (citation omitted). "Where the final judgment rule is not satisfied, the proper remedy for this court is dismissal." Loffredo, 2001 UT 97 at ¶11.

    The narrow jurisdictional issue before the court is whether the district court's order is a final order from which an appeal of right can be taken. Appellants argue that all remaining substantive issues were resolved by the supreme court's ruling that Provo City lacked authority to seek condemnation of the property. Even assuming that this is true, the district court has neither entered an order dismissing the condemnation action filed by Provo City, nor was it requested to do so by Appellants. Appellants' misconception concerns the scope of the appeal before the Utah Supreme Court. That appeal was an interlocutory appeal from the Order of Immediate Occupancy; therefore, only that order was reversed. Appellants contend that the order denying its motion for attorney fees and expenses was a "de facto" final judgment because no further issues remain before the district court. However, until the case is dismissed, and the funds held by the clerk of court are disposed of, the case remains pending and no final appealable judgment has been entered.

    Appellants argue that all issues have been decided and treat actual dismissal of the case as a mere technicality that should not impact their appeal. This argument is without merit. A final judgment is not one determined by implication; it is one that actually resolves the action in the trial court. Although the grounds for that reversal arguably may prove fatal to further proceedings on the complaint, the case must still be resolved by a dismissal in order to proceed with an appeal.

    Having determined that we lack jurisdiction over the appeal, we have only the authority to dismiss the appeal. Our dismissal is without prejudice to a timely appeal filed after entry of a final judgment.

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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