IMG Group v. Tinker

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IN THE UTAH COURT OF APPEALS ----ooOoo---IMG Group, LLC, a Utah limited liability company; and Cuatro, LLC, a Utah limited liability company, Plaintiffs and Appellees, v. Larry Tinker; Jim Schumacher; and Gary Feldscher, Defendants and Appellant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) MEMORANDUM DECISION (Not For Official Publication) Case No. 20080799-CA F I L E D (November 14, 2008) 2008 UT App 416 ----Third District, Salt Lake Department, 070914110 The Honorable John Paul Kennedy Attorneys: Michael J. Langford, West Valley City, for Appellant Mary Anne Q. Wood and Kathryn O. Balmforth, Salt Lake City, for Appellees ----- Before Judges Bench, Davis, and McHugh. PER CURIAM: Larry Tinker appeals the district court's order entered on August 19, 2008. This matter is before the court on Appellees' motion for summary disposition for lack of jurisdiction due to the absence of a final order. Generally, "[a]n appeal is improper if it is taken from an order or judgment that is not final." Bradbury v. Valencia, 2000 UT 50, ¶ 9, 5 P.3d 649. For an order or judgment to be final, it must "dispose of all parties or claims to an action." Id. ¶ 10. The only exceptions to this requirement are where: (1) an appeal is permitted under the circumstances by statute, (2) the appellate court grants interlocutory appeal under rule 5 of the Utah Rules of Appellate Procedure, or (3) the trial court certifies the order as final under rule 54(b) of the Utah Rules of Civil Procedure. See id. ¶ 12. The district court's August 19, 2008 order awarded default judgment against Tinker and expressly provided that the judgment would be augmented in the amount of actual damages to be established at a later date. Thus, the order did not dispose of the litigation. See id. ¶ 9. As a result, the order is not final because it leaves additional issues for a later determination. Furthermore, Tinker has not raised any exception to the final judgment rule. Because the order appealed from is not a final order, this court lacks jurisdiction to consider this appeal. See Utah R. App. P. 3(a). Accordingly, this appeal is dismissed without prejudice to the filing of a timely appeal from a final order. ______________________________ Russell W. Bench, Judge ______________________________ James Z. Davis, Judge ______________________________ Carolyn B. McHugh, Judge 20080799-CA 2

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