State v. H.M. (In re S.K., et al.)

State v. H.M. (In re S.K., et al.)

IN THE UTAH COURT OF APPEALS
 

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State of Utah, in the interest of S.K. et al.,
children under eighteen years of age.

______________________________

State of Utah,

Appellee,

v.

H.M.,

Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20050045-CA
 

F I L E D
(March 3, 2005)
  2005 UT App 102

 

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Third District Juvenile, Salt Lake Department

The Honorable Andrew A. Valdez

Attorneys: Russell S. Pietryga and David L. Crowley, Salt Lake City, for Appellant

Mark L. Shurtleff and Carol L.C. Verdoia, Salt Lake City, for Appellee

Martha Pierce, Kristin G. Brewer, and Anthony Ferdon, Salt Lake City, Guardians ad Litem

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Before Judges Greenwood, Jackson, and Thorne.

PER CURIAM:

    This case is before the court on the Guardian ad Litem's (GAL) motion to dismiss a petition on appeal for lack of jurisdiction. The State joins in the motion to dismiss. Appellant H.M. does not argue that the juvenile court's order was eligible for certification under rule 54(b) of the Utah Rules of Civil Procedure, but urges the court to consider the petition as a discretionary interlocutory appeal under rule 5(a) of the Utah Rules of Civil Procedure.

    The GAL filed a Verified Petition on April 5, 2004 and filed an amended petition on April 12, 2004 (the first petition). The first petition resulted in a adjudication order entered on June 9, 2004, which adjudicated the children to be within the juvenile court's jurisdiction because they were abused and neglected by their father and they were neglected by H.M. On October 12, 2004, the GAL filed an Amended Verified Petition (the second petition), which alleged for the first time that H.M. also physically and emotionally abused the children.

    On December 6, 2004, H.M. moved to dismiss the second petition. H.M. argued that (1) the second petition was, in substance, an untimely motion for new trial; (2) the second petition was barred by res judicata because the first petition had been adjudicated and the children were already within the court's continuing jurisdiction; (3) the second petition was superfluous for the same reason; (4) filing multiple petitions to commence new proceedings confused the deadlines for disposition and delayed disposition on the first petition. In an order entered on January 3, 2005, the juvenile court denied H.M.'s motion to dismiss the second petition. The order concluded that the second petition was not a motion for new trial and the time lines for such a motion did not apply; that H.M. had not previously been adjudicated as to physical and emotional abuse of the children; and that the second petition raised new claims, so res judicata was not applicable. The January 3, 2005 order also stated: "This order is certified as a final appealable order." H.M. filed a timely notice of appeal.

    Rule 54(b) allows an interlocutory order to be certified as final and appealable only if it satisfies three criteria: (1) there must be multiple claims for relief or multiple parties; (2) the order must be one that would otherwise have been appealable, but for the fact that there are other claims or parties remaining in the trial court; and (3) the trial court must make an express determination that there is no just reason for delay. See Utah R. Civ. P. 54(b). Although rule 54(b) "permits the trial court to certify certain interlocutory orders, and by doing so, force the appellate court to entertain the appeal," the "question of whether an order is eligible for certification under rule 54(b), i.e., whether the order is final, is a question of law" reviewed for correctness. Kennecott Corp. v. Utah State Tax Comm'n, 814 P.2d 1099, 1100 (Utah 1991).

    The order denying H.M.'s motion to dismiss the second petition does not satisfy the criteria for certification. It does not dispose of the case as to any party, nor does it resolve any separate claim for relief in the litigation. It denies a motion to dismiss and sends the petition forward for trial on the merits. It is interlocutory and is not an order that would have been final and appealable, but for the existence of other claims or parties. In addition, the juvenile court did not make the express determination that there was no just reason for delay and the facts do not support such a determination.

    H.M. does not address the requirements of rule 54(b); however, she urges us to exercise our discretion to consider the appeal as an interlocutory appeal. See Utah R. App. P. 5(a) ("A timely appeal from an order certified under Rule 54(b), Utah Rules of Civil Procedure, that the appellate court determines is not final may, in the discretion of the appellate court, be considered by the appellate court as a petition for permission to appeal an interlocutory order.").

    The "extraordinary treatment" of saving an "improperly taken appeal from dismissal" is rarely applied. In re J.W., 950 P.2d 939, 940 (Utah Ct. App. 1997). "Permission to proceed with such an appeal is granted only when it is 'essential to adjudicate principles of law or procedure in advance as a necessary foundation upon which a trial may proceed; or if there is a high likelihood that the litigation can be finally disposed of on such an appeal.'" Id. (quoting A.J. Mackay Co. v. Okland Constr. Co., 817 P.2d 323, 325-26 (Utah 1991)). We decline to invoke the exception in this case, and we specifically note that the adjudication trial on the second petition took place on January 6 and 12, 2005.

    Accordingly, we dismiss the appeal for lack of jurisdiction because the order denying the motion to dismiss was not eligible for certification under rule 54(b) of the Utah Rules of Civil Procedure, and we decline to consider the case as a discretionary interlocutory appeal under the exception contained in rule 5(a) of the Utah Rules of Appellate Procedure. Our dismissal does not preclude H.M. from raising the issues in a timely appeal from any final, appealable order entered following adjudication of the second petition.

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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