Gillmor v. Gillmor

----ooOoo----

In the Matter of the Estate of Edward L. Gillmor, Deceased.
______________________________

Edward L. Gillmor, Jr.;
and Bonnie Gillmor Billings,
Petitioners and Appellants,

v.

Siv Gillmor, Charles F. Gillmor,
Jennifer Gillmor, and Rebecca Gillmor,
Respondents and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000786-CA

F I L E D
January 25, 2001 2001 UT App 25 -----

Third District, Salt Lake Department
The Honorable William B. Bohling

Attorneys:
R. Stephen Marshall, David W. Tufts, and Richard C. Skeen, Salt Lake City, for Appellants
James R. Black and Charles M. Bennett, Salt Lake City, for Appellees -----

Before Judges Bench, Davis, and Thorne.

PER CURIAM:

This case is before the court on a sua sponte motion for summary disposition to resolve whether this court has jurisdiction to consider the appeal under Utah Rule of Civil Procedure 54(b).

Appellants' docketing statement represents that the parties to the appeal "remain before the trial court on claims concerning the partitioning of Estate property and ongoing management of Estate property," and that "[t]he facts underlying this appeal are sufficiently similar to facts underlying the claims remaining before the trial court to constitute res judicata on those claims that are addressed in this appeal." Based upon these statements suggesting that the order was "improperly certified" under Kennecott Corp. v. Utah State Tax Comm'n, 814 P.2d 1099 (Utah 1991), this court initiated a sua sponte motion to determine jurisdiction. In response, appellants represent that the underlying case is a consolidated case involving separate conservatorship and probate proceedings, which "each stem from a different set of facts." However, even accepting the accuracy of this representation, appellants fail to address the crucial question whether the declaratory judgment resolves a claim in the probate proceeding with finality, i.e., whether there is factual overlap between the certified order determining applicable intestate succession law and the remaining claims in the probate proceeding. In addition, the trial court's statements at the conclusion of the hearing reflect a concern that the declaratory judgment be reviewed because it will be applied in determination of the remaining claims. Finally, the certification language does not contain an "express determination" that there is no just reason for delay.

Certification is "generally precluded where there [is] significant 'factual overlap' between the operative facts of the certified and unlitigated claims and where the outcome of the appeal of the certified claims theoretically would have a res judicata effect on the unlitigated claims remaining before the trial court." Bennion v. Pennzoil Co., 826 P.2d 137, 138 (Utah 1992) (per curiam) (restating Kennecott holding). The determination "whether an order is eligible for certification under Rule 54(b), i.e., whether the order is 'final,' is a question of law." Kennecott, 814 P.2d at 1100. Accordingly, in Bennion, the Utah Supreme Court required trial courts to "henceforth enter findings supporting the conclusion that such orders are final." 826 P.2d at 139. "The findings should explain the lack of factual overlap between the certified and remaining claims and thus satisfy the Kennecott criterion for certification to be proper." Id. Noting the further requirement that the trial court may certify an order "only upon an express determination by the court that there is no just reason for delay," and stating that the determination is subject to review under an abuse of discretion standard, the court concluded that "a brief explanation should accompany all future certifications so that this court may render an informed decision on that question." Id. If the appellate court determines that an order was not properly certified, the court "lacks jurisdiction to entertain the appeal," and it must be dismissed. Id.

The trial court in this case made only a conclusory recitation that "[t]he Court certifies this as a final and appealable order under [Utah Rules of Civil Procedure] 54(b)." The court made no "express determination" that there was no just reason for delay, and we do not infer that determination from the fact of certification. The court also made no findings in support of certification, as required by Bennion. Based upon our review, the declaratory judgment resolved the issue of the intestate succession law to be applied to appellants' claims to a share of the estate. As such, the judgment apparently resolved a preliminary issue of law to be applied in the future adjudication in the probate portion of the consolidated case. See Kennecott, 814 P.2d at 1101 (noting "[t]he line between deciding one of several claims and deciding only part of a single claim is sometimes very obscure" and "the rule requires that the entirety of at least one [claim] be decided with finality"). Even assuming there is no factual overlap with claims in the conservatorship portion of the consolidated case, the declaratory judgment will theoretically have res judicata effect by determining the applicable law to be applied to the claims in the probate portion. We conclude that the declaratory judgment was not final and was not eligible to be certified as final under Rule 54(b). Accordingly, we lack jurisdiction to consider the appeal.

If an interlocutory order is not "final" within the meaning of Rule 54(b), a party may seek permission to file a discretionary interlocutory appeal from the appropriate appellate court. See Utah R. App. P. 5. After Kennecott, Utah Rule of Appellate Procedure 5(a) was amended to allow an appellate court, in its discretion, to consider an improperly certified appeal as a petition for permission to appeal. "The appellate court may direct the appellant to file a petition that conforms to the requirements of paragraph (c) of this rule." Utah R. App. P. 5(a). Accordingly, we stay our dismissal for a period of 21 days from the date of this decision to allow appellants to file a petition for permission to appeal from the declaratory judgment in the form required by Rule 5(c). If no timely petition is filed, the appeal shall be dismissed pursuant to this decision without further notice or order.
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 

______________________________
James Z. Davis, Judge
 
 
 

______________________________
William A. Thorne, Jr., Judge