MGB Income Trust v. Cusick
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IN THE UTAH COURT OF APPEALS ----ooOoo---Wadsworth Lake Park, LLC; and Wadsworth Development Group, LLC, ) ) ) ) Plaintiffs and Appellants, ) ) v. ) ) Spillman Technologies, Inc.; ) RTC Enterprises, LLC; Richard ) Spillman; and Taft Barrington, ) ) Defendants and Appellees. ) MEMORANDUM DECISION (Not For Official Publication) Case No. 20100412-CA F I L E D (August 5, 2010) 2010 UT App 210 ----Third District, Salt Lake Department, 060918294 The Honorable L.A. Dever Attorneys: Steven W. Geary, Salt Lake City, for Appellants Eric A. Olson, Thomas J. Burns, and Jason R. Hull, Salt Lake City, for Appellees ----- Before Judges Thorne, Voros, and Christiansen. PER CURIAM: This matter is before the court on Appellees' motion for summary disposition based upon lack of jurisdiction due to the absence of a final, appealable order. This court does not have jurisdiction to consider an appeal unless it is taken from a final judgment or order, see Utah R. App. P. 3(a), or qualifies for an exception to the final judgment rule. See Loffredo v. Holt, 2001 UT 97, ¶¶ 10, 15, 37 P.3d 1070. An order is final only if it disposes of the case as to all parties and "finally dispose[s] of the subject-matter of the litigation on the merits of the case." Bradbury v. Valencia, 2000 UT 50, ¶ 9, 5 P.3d 649 (internal quotation marks omitted); see also Utah R. Civ. P. 54(b) (stating that an order "that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and rights and liabilities of all the parties"). The decision appealed from is not a final, appealable order because it does not dispose of all issues in the litigation. Specifically, the order appealed from reserved determination of the amount of attorney fees that should be awarded. "[A] trial court must determine the amount of attorney fees awardable to a party before the judgment becomes final for the purposes of an appeal under Utah Rule of Appellate Procedure 3." ProMax Dev. Corp. v. Raile, 2000 UT 4, ¶ 15, 998 P.2d 254; see also Loffredo, 2001 UT 97, ¶ 14 (concluding that requests for attorney fees must be decided in order for a decision to be appealed). Because this issue remains, there is no final, appealable order. Accordingly, this court lacks jurisdiction to hear this appeal. When this court lacks jurisdiction, it must dismiss the appeal. See Loffredo, 2001 UT 97, ¶ 11. The appeal is dismissed without prejudice to the filing of a timely appeal after the district court enters a final, appealable order.1 ______________________________ William A. Thorne Jr., Judge ______________________________ J. Frederic Voros Jr., Judge ______________________________ Michele M. Christiansen, Judge 1 Appellees' request for attorney fees and costs associated with responding to this appeal is denied. 20100412-CA 2
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