Giffen v. Johnson

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Giffen v. Johnson Case No. 20001101-CA

IN THE UTAH COURT OF APPEALS

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Bruce M. Giffen,
Plaintiff and Appellee,

v.

Danell M. Johnson and Jamis M. Johnson,
Defendants and Appellants.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20001101-CA

F I L E D
(December 20, 2001)

2001 UT App 406

 

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Third District, Salt Lake Department
The Honorable Anne M. Stirba

Attorneys: 
Jamis M. Johnson, Salt Lake City, Appellant Pro Se
Robert J. Dale and Bradley L. Tilt, Salt Lake City, for Appellee

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Before Judges Greenwood, Billings, and Davis.

PER CURIAM:

Appellee Bruce M. Griffin sought foreclosure on a property for which the loan was in default. Appellants Danell M. Johnson and Jamis M. Johnson appeal the trial court's grant of summary judgment dismissing two of Appellants' claims. Appellants listed twelve claims in their complaint, including fraud, breach of fiduciary duty, and numerous others. The summary judgment disposed of two of them. No formal motion for certification under Rule 54(b) of the Utah Rules of Civil Procedure was made. Appellants have previously petitioned the Utah Supreme Court for permission to appeal an interlocutory order pursuant to Rule 5 of the Utah Rules of Appellate Procedure. The petition was denied due to lack of jurisdiction because it was untimely.

Absent certification, an order which disposes of fewer than all of the claims will not be a final order and this court does not have jurisdiction to hear an appeal. See Donohue v. Mouille, 913 P.2d 776, 778 (Utah Ct. App. 1996). Although an informal discussion took place in the trial court, where Appellants indicated that they would likely seek Rule 54(b) certification, and the trial court expressed a willingness to certify, this did not qualify as a formal motion to certify. The trial court made no requisite finding that there was no just reason for delay. See Utah R. Civ. P. 54(b). The only exception to Rule 54(b) certification is when the appellate court determines that the order will, in the discretion of the court, be considered as a petition for permission to appeal under Rule 5(a) of the Utah Rules of Appellate Procedure. In this case, the Utah Supreme Court has denied Appellants' petition, and we decline to exercise the discretion to consider the appeal as a petition pursuant to Rule 5. The appropriate remedy, under these circumstances, is dismissal of the appeal. See Bradbury v. Valencia, 2000 UT 50,¶8, 5 P,3d 649, A.J. Mackay Co. v. Okland Constr. Co., 817 P.2d 323, 325 (Utah 1991). Therefore, this appeal is dismissed for lack of jurisdiction.

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Pamela T. Greenwood, Presiding Judge

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Judith M. Billings, Judge

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James Z. Davis, Judge