Clock v. Green

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Wesley Clock and Anne Clock,
Plaintiffs and Appellees,

v.

John F. Green and Larue Green,
Defendants and Appellants.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981612-CA

F I L E D
October 15, 1999
    1999 UT App 291 -----

Third District, Salt Lake Department
The Honorable Homer Wilkinson

Attorneys:
Stephen G. Homer, West Jordan, for Appellants
Bryan W. Cannon, Sandy, for Appellees

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Before Judges Davis, Jackson, and Orme.

ORME, Judge:

We have determined that "[t]he facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument." Utah R. App. P. 29(a)(3).

A judgment is final in all respects, following affirmance on appeal, when nothing is remanded for the trial court to reconsider or decide. See Schoney v. Memorial Estates, Inc., 863 P.2d 59, 61 (Utah Ct. App. 1993). This finality is not disturbed merely because the prevailing party is constrained to take some post-appeal action to enforce the final judgment. When a judgment is final, parties are not at liberty to "reinstate or relitigate" issues already adjudicated, id., or issues that could and should have been adjudicated. See American Estate Management Corp. v. International Inv. & Dev. Corp., 374 Utah Adv. Rep 31, 32 (Utah Ct. App. 1999); State v. Wareham, 801 P.2d 918, 920 (Utah 1990) ("[Defendant] chose not to raise the issue in the first appeal. . . . He is not entitled to challenge [the result] through the guise of a [new motion] . . . thus avoiding the consequences of waiver and res judicata."). Failure to raise all relevant issues when the party is afforded a fair opportunity to do so is a waiver of those issues not raised. See Jacobson v. Jacobson, 703 P.2d 303, 305 (Utah 1985).

Deciding whether a claim could or should have been raised is often driven by the "relative importance of the finality of judgment." American Estate, 374 Utah Adv. Rep. at 32. Without question, when "title to real property is at issue, the need for finality is at its apex." Id. "[W]e readily conclude that [the appellants] could and should have [raised all related issues] in the prior suit." Id. Accordingly, litigation of the interest issues is now barred.(1)

Pursuant to Rule 33 of the Utah Rules of Appellate Procedure, we have been asked to award sanctions against appellants. While this unmeritorious appeal presents a close call, we decline to do so. The court imposes sanctions only in the most "egregious cases, 'lest there be an improper chilling of the right to appeal erroneous lower court decisions.'" Taylor v. Hansen, 958 P.2d 923, 931 (Utah Ct. App. 1998) (quoting Porco v. Porco, 752 P.2d 365, 369 (Utah Ct. App. 1988)). If this were such an egregious case, the Supreme Court would presumably have granted the motion for summary disposition rather than calling for briefs.

Affirmed.
 
 
 

______________________________
Gregory K. Orme, Judge

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WE CONCUR:
 
 

______________________________
James Z. Davis, Judge
 
 
 

______________________________
Norman H. Jackson, Judge

1. Our decision necessarily resolves the motion for summary disposition, deferred by the Supreme Court, with a single exception. The argument concerning untimely filing of the docketing statement is easily addressed. As the Utah Supreme Court stated in Nelson v. Salt Lake City, 919 P.2d 568, 572 (Utah 1996), "[t]he docketing statement is for the benefit of the Court, not the appellee." Mere failure to timely file the docketing statement is no ground to dismiss the appeal.