Thurston v. Thurston

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Thurston v. Thurston, Case No. 20000228-CA, Filed May 17, 2001 IN THE UTAH COURT OF APPEALS


Jennifer Melissa Thurston,
Petitioner and Appellant,


Ronald Thurston,
Respondent and Appellee.

(Not For Official Publication)

Case No. 20000228-CA

May 17, 2001 2001 UT App 158 -----

Sixth District, Manti Department
The Honorable Louis G. Tervort

Andrew B. Berry, Jr., Moroni, for Appellant
Gary H. Weight, Provo, for Appellee


Before Judges Greenwood, Davis, and Thorne.

GREENWOOD, Presiding Judge:

Rule 37 of the Utah Rules of Appellate Procedure states, in part: "If a party determines that one or more issues have been rendered moot, the party shall forthwith advise the court by filing a 'suggestion of mootness' in the form of a motion under Rule 23." Utah R. App. P. 37(a). Appellant filed a suggestion of mootness motion on her claim that Oregon lacked personal and subject matter jurisdiction. More than ten days have elapsed since service of Appellant's motion on Appellee, and Appellee has not responded. See Utah R. App. P. 23 (requiring "response in opposition to motion within 10 days after service of the motion"). Because the Oregon court dismissed the action commenced therein by Appellee, and because this case is now in Utah, we agree that the jurisdictional issue is moot.

The remaining issue to be considered is whether Appellant's attorney fees and costs should be awarded. Appellant requests attorney fees and costs for the Oregon action, the Utah action, and this appeal. We lack jurisdiction to address the Oregon action and, therefore, decline to address that issue. See Utah Code Ann. § 78-2a-3 (1996) (setting forth "Court of Appeals jurisdiction"). The trial court may want to address the issue of attorney fees and costs in the Utah action. As for this appeal, however, Rule 33 of the Utah Rules of Appellate Procedure does not contemplate an award of fees to an appellant; thus, there is no basis for awarding Appellant attorney fees on appeal. See Utah R. App. P. 33. Appellant is, however, awarded costs on appeal. See Utah R. App. P. 34(a).

Accordingly, we dismiss this appeal as moot.

Pamela T. Greenwood,
Presiding Judge -----


James Z. Davis, Judge

William A. Thorne, Jr., Judge