Bartel v. DeBry

----ooOoo----

Del Bartel, individually
and as to his individual interest
in Cascade Enterprises and Cascade Construction;
and Dale Thurgood, individually
and as to his individual interest
in Cascade Enterprises and Cascade Construction,
Plaintiffs and Appellants,

v.

Robert J. DeBry, Joan DeBry, Robert J. DeBry and Associates,
Edward T. Wells, Dale Gardiner, Kenneth W. Karren,
Kenneth W. Karren Jr., George R. Jensen, Michael Jensen,
David Mu, William F. Bannon, Michael Mills,
Valley Mortgage Corporation, and John Does 1 through 9,
Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010460-CA

F I L E D
October 25, 2001 2001 UT App 321 -----

Third District, Salt Lake Department
The Honorable Homer F. Wilkinson

Attorneys:
Del K. Bartel, West Jordan, and Dale Thurgood, Morgan, Appellants Pro Se
David A. Greenwood and Cassie Wray, Salt Lake City, for Appellees Robert J. DeBry, Joan DeBry, and Robert J. DeBry and Associates
Craig R. Mariger and Edward R. Munson, Salt Lake City, for Appellees Kenneth W. Karren and Kenneth W. Karren Jr.
Craig C. Coburn and Zachary E. Peterson, Salt Lake City, for Appellees James Bailey and David Mu
Blake S. Atkin and Lonn Litchfield, Salt Lake City, for Appellee Dale Gardiner
Gary E. Doctorman and Laura S. Scott, Salt Lake City, for Appellee Valley Mortgage Corporation -----

Before Judges Jackson, Bench, and Davis.

PER CURIAM:

This case is before the court on five motions filed by appellees seeking summary disposition of the appeal. We dismiss for lack of jurisdiction because no timely notice of appeal was filed following entry of the final appealable judgment.

The DeBry parties and defendants Edward T. Wells, Dale Gardiner, Kenneth W. Karren, Kenneth W. Karren Jr., George Jensen, David Jorgensen, James Bailey, David Mu, Michael Mills, and Valley Mortgage Corporation were each served with a summons and complaint within 120 days of the complaint's 1992 filing. On various dates between 1993 and 1999, each of these served defendants was dismissed from the action. On August 23, 1999, the trial court entered a default judgment against defendant George Jensen. At that point the claims against all served defendants had been resolved by dismissal or judgment, and appellants had not served the remaining named defendants, to wit: William F. Bannon and Michael Jensen. Six months after dismissal of the last served defendant, appellants served Bannon. On April 25, 2001, the trial court entered an order dismissing claims against Bannon and Michael Jensen. The latter had never been served. Appellants filed a notice of appeal seeking to appeal from "orders addressing all claims and causes of action pertaining to all named defendants in this litigation."

Appellants' reliance on Rule 4(b) of the Utah Rules of Civil Procedure is misplaced, and was rejected by this court in Otteson v. Dep't of Human Servs., 945 P.2d 170 (Utah Ct. App. 1997). In Otteson, as in this case, appellant argued that the service of additional named but previously unserved defendants after the dismissal of all claims against the served defendants reopened the case in the trial court and rendered the prior judgment nonfinal. Id. at 171. This court disagreed, concluding that "[t]he dismissal of all defendants who had been served with process and brought within the district court's jurisdiction was a final and appealable judgment." Id. at 172. Accordingly, we held that "[f]ailure to dismiss additional named defendants who had not been served at the time of entry of the . . . order of dismissal did not leave claims pending in the district court or prevent the entry of final judgment since the unserved defendants were not made parties to the action prior to dismissal." Id. (citing Bristol v. Fibreboard Corp., 789 F.2d 846, 847 (10th Cir. 1986)).

The August 23, 1999 order in this case disposing of claims against the last remaining served defendant was the final judgment and commenced the running of the appeal time. Because Bannon and Michael Jensen had not been served, the August 23, 1999 order resolved all claims between the named defendants who had been served and actually made parties and it ended the controversy before the court. Appellants failed to file a timely notice of appeal from that order, and this court lacks jurisdiction. The belated service of Bannon did not revive the previously dismissed case in order to allow an appeal.

Because we lack jurisdiction, we do not consider Dale Gardiner's motion for summary affirmance or Valley Mortgage's motion for summary dismissal, which actually seeks summary affirmance based upon the parties' prior stipulation. See Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989)("When a matter is outside the court's jurisdiction it retains only the authority to dismiss the action."). Valley Mortgage's request for damages is denied based upon our dismissal and because it is not clear that appellants ever sought to appeal the dismissal of that party.

We dismiss the appeal for lack of jurisdiction based upon the failure to file a timely notice of appeal from the August 23, 1999 final judgment.
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 

______________________________
Russell W. Bench, Judge
 

______________________________
James Z. Davis, Judge