Kurth v. Wiarda
Annotate this Casepublication in the Pacific Reporter.
IN THE UTAH COURT OF APPEALS
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Robert Kurth and Laura Kurth, individually
and as trustees of the Kurth Revocable Trust,
Plaintiffs and Appellees,
v.
Daniel R. Wiarda and Carolyn Wiarda,
individually;
and Lonetree Services, Inc., a Utah
corporation dba Lonetree Log Homes,
Defendants and Appellants.
OPINION
(For Official Publication)
Case No. 981582-CA
F I L E D
May 6, 1999
1999 UT App 153
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Fifth District, Cedar City Department
The Honorable Robert T. Braithwaite
Attorneys:
J. Bryan Jackson, Cedar City, for
Appellants
Robert O. Kurth, Las Vegas, Nevada,
for Appellees
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Before Judges Greenwood, Davis, and Jackson.
PER CURIAM:
¶1
This matter is before the court
on appellees' motion to dismiss and on the court's sua sponte motion for
summary disposition. For the reasons set forth below, we deny the appellees'
motion and withdraw the court's motion.
BACKGROUND
¶2
Following an extensive trial in
this matter, a jury returned a verdict awarding damages against the defendant
Lonetree Services, Inc. ("Lonetree"). Shortly thereafter but prior to the
entry of a judgment on the verdict, Lonetree moved for judgment notwithstanding
the verdict, for a new trial, and for an order amending the verdict. After
a hearing on Lonetree's motions which the court orally denied, the trial
court entered a judgment on the verdict awarding damages against Lonetree
and dismissing with prejudice all claims against Wiarda. The judgment does
not address Lonetree's motions.
¶3
Subsequently, the trial court entered
"findings of fact, conclusions of law and order" on April 24, 1998, and
an "order with findings of fact and conclusions of law" on June 17, 1998.
The April order awarded costs and attorneys fees against Lonetree, while
the June order awarded costs and attorneys fees against Wiarda. Within
thirty days of the June order, appellants Lonetree and Wiarda filed a notice
of appeal.
¶4
Upon reviewing the record in this
matter, this court moved fur summary disposition on the ground that it
lacked jurisdiction due to the absence of a final order disposing of Lonetree's
motions. Appellees' filed a motion to dismiss the appeal on the ground
that the court lacked jurisdiction because the notice of appeal was filed
more than thirty days after entry of the judgment on the verdict and, in
the alternative, on the ground that appellants failed to comply with Utah
Rule of Appellate Procedure 3(d). This opinion addresses only the issues
raised in the motions and reserves all other issues pending full briefing.
ANALYSIS
¶5
An appeal may be taken from a district
court from all final orders and judgments. See Utah R. App. P. 3(a).
Absent a final order, the appellate court lacks jurisdiction and must dismiss
the appeal. See State v. Rawlings, 829 P.2d 150, 153 (Utah
Ct. App. 1992). The finality of an order or judgment may be affected by
certain post-trial motions. Specifically, under Utah Rule of Appellate
Procedure 4(b), a timely motion for judgment notwithstanding the verdict,
to alter or amend the judgment or for a new trial filed under Utah Rules
of Civil Procedure 50(b), 52(b) and 59 suspends the finality of the challenged
judgment rendering "a notice of appeal filed prior to disposition of such
a motion by entry of a signed order [ineffective] to confer jurisdiction
on an appellate court." Anderson v. Schwendiman, 764 P.2d 999, 1000
(Utah Ct. App. 1988) (per curiam) (citations omitted). To vest jurisdiction
in the appellate court, the notice of appeal must be filed after entry
of the order disposing of such motions. See Swenson Assoc. Architects
v. State, 889 P.2d 415, 417 (Utah 1994). Under this rule, Lonetree's
motions, if timely, suspend the appeal period until "entry of the order
denying" them. See Utah R. App. P. 4(b).
¶6
The timeliness of a Rule 50(b),
Rule 52(b) or Rule 59 motion is governed by the rules themselves. Such
motions must be served or filed not later than ten days after the
entry of the judgment. See Utah R. Civ. P. 50(b), 52(b), 59(b) &
59(e). Lonetree's motions, filed shortly after the verdict was entered
but before entry of the judgment on the verdict, and thus not more than
ten days after the entry of the judgment, are timely under the rules. The
phrase "not later than" does not require that there be a pre-existing judgment,
rather, it "sets only a maximum period and does not nullify an otherwise
valid motion made before a formal judgment has been entered." Jurgens
v. McKasy, 905 F.2d 382, 386 (Fed. Cir. 1990).(1)
In other words, a motion under the Utah Rules of Civil Procedure of the
type described in Utah Rule of Appellate Procedure 4(b) that is filed prior
to entry of the judgment is timely for purposes of tolling the appeal period.
See
Zions First Nat'l Bank v. C'est Bon Venture, 613 P.2d 515, 517 (Utah
1980);
see also Jurgens, 905 F.2d at 386 (following lead
of majority of federal circuit courts in recognizing timeliness of pre-judgment
motions). But see State v. Vessey, 957 P.2d 1239 (Utah Ct.
App. 1998) (discussing untimeliness of pre-judgment motions filed in criminal
context).
¶7
A motion made prior to the entry
of judgment that is not disposed of either expressly or by necessary implication
by the judgment, suspends the running of the time for taking an appeal
until the court disposes of the motion. See Zions, 613 P.2d
at 517. The mere entry of a final judgment inconsistent with but silent
regarding a post-trial pre-judgment motion does not dispose of the motion
by necessary implication unless the surrounding circumstances indicate
that the trial court considered and rejected the motion. For instance,
in Zions, the Utah Supreme Court ruled that a post-trial pre-judgment
oral motion to amend the judgment was denied by necessary implication by
entry of the judgment where the party who made the motion failed to include
the motion in a written objection filed the day after entry of judgment
or to secure a ruling on the oral motion at the same time the trial court
entered a final order denying its written objection. See id. at
517.
¶8
In the case at hand, the entry of
the judgment on the verdict in light of the surrounding circumstances operates
to effectively deny Lonetree's motions by necessary implication. The motions
were heard and orally denied by the trial court. The court stated during
the hearing on the motions that it would sign the judgment and signed the
judgment the same day. These facts indicate that the trial court considered
and rejected the motions and support the conclusion that the judgment on
the verdict, although silent on the issue, disposed of the motions by necessary
implication.
CONCLUSION
¶9
Based upon the foregoing, the court's
sua sponte motion to dismiss the appeal for lack of a final order is withdrawn.
Appellees' motion to dismiss is denied in its entirety as moot.(2)
______________________________
Pamela T. Greenwood,
Associate Presiding Judge
______________________________
James Z. Davis, Judge
______________________________
Norman H. Jackson, Judge
1. Federal Rule
of Civil Procedure 59 and Federal Rule of Appellate Procedure 4(a)(4) (formerly
Federal Rule of Civil Procedure 73) are nearly identical to Utah Rule of
Civil Procedure 59 and Utah Rule of Appellate Procedure 4(b), respectively.
When Utah case law is insufficient and the Utah rule to be interpreted
is identical or nearly identical to a federal rule, Utah courts will look
to federal case law for assistance in interpreting and applying its rules.
See Buzas
Baseball, Inc. v. Salt Lake Trappers,
Inc., 925 P.2d 941, 947 n.5 (Utah 1996); see also Brickyard Homeowners'
Ass'n Management Comm. v. Gibbons Realty Co., 668 P.2d 535, 540 (Utah 1983)
(stating identity in language in Utah and federal statutes presumes identity
of construction so Utah courts look to federal case law for guidance).
2. Lonetree has withdrawn its appeal. The only issue left on appeal is Wiarda's challenge to the June order, which challenge is sufficiently specific and timely under the Utah Rules of Appellate Procedure.
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