Cameron v. State of Utah

----ooOoo----

Michael Cameron,
Petitioner and Appellant,

v.

State of Utah,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020437-CA

F I L E D
September 26, 2002 2002 UT App 301 -----

Third District, Salt Lake Department
The Honorable Stephen L. Henriod

Attorneys:
Michael Cameron, Draper, Appellant Pro Se -----

Before Judges Jackson, Billings, and Bench.

PER CURIAM:

This case is before the court on a sua sponte motion for summary dismissal. See Utah R. App. P. 10(a). Cameron requests that this court dismiss the motion and proceed with the appeal despite the fact that he has post-judgment motions pending before the trial court.

Within ten days of the date of the order Cameron seeks to appeal, he filed a "Motion to Remand 65C Petition to a Judge of Competent Jurisdiction." In this motion he argued that his petition was not assigned to the judge that sentenced him as required by rule 65C(f) of the Utah Rules of Civil Procedure. The trial court has not entered a ruling on this motion.

Rule 59 of the Utah Rules of Civil Procedure provides "a new trial may be granted . . . for any of the following causes; . . . (1) Irregularity in the proceedings of the court, jury or adverse party, or any order of the court." Utah R. Civ. P. 59(a)(1). Cameron's motion alleges an irregularity in the proceedings because his 65C petition was not assigned to the judge who sentenced him as required under the rule. See Utah R. Civ. P. 65C(f). In determining the characterization of a document, "we will look to the document's substance rather than its caption." DeBry v. Fidelity Nat'l Title Ins. Co., 828 P.2d 520, 522 (Utah Ct. App. 1992). Additionally, this court has stated "that regardless of its caption, 'a motion filed within ten days of the entry of judgment that questions the correctness of the court's findings and conclusions is properly treated as a post-judgment motion under either Rules 52(b) or 59(e).'" Reeves v. Steinfeldt, 915 P.2d 1073, 1076 (Utah Ct. App. 1996) (quoting DeBry, 828 P.2d at 522). Therefore, Cameron's post-judgment motion questioning an irregularity in the trial court proceedings, filed within ten days of entry of judgment, is properly construed as a timely motion under rule 59, and "a notice of appeal is of no effect if filed prior to the disposition of a post-judgment motion." DeBry, 828 P.2d at 523; see also Utah R. App. P. 4(b) (stating that a timely motion under rule 59 shall toll the time for filing a notice of appeal and "the time to appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion"). Consequently, this court is without jurisdiction over the appeal because the district court has not entered a ruling on the post-judgment motion. See Kurth v. Wiarda, 1999 UT App 153,¶5, 981 P.2d 417 ("[U]nder Utah Rule of Appellate Procedure 4(b), a timely motion . . . filed under Utah Rules of Civil Procedure 50(b), 52(b) and 59 suspends the finality of the challenged judgment rendering 'a notice of appeal filed prior to disposition of such a motion by entry of a signed order [ineffective] to confer jurisdiction on an appellate court.'") (citation omitted).

Accordingly, we dismiss the appeal for lack of jurisdiction, without prejudice to filing a new, timely notice of appeal after the trial court enters a ruling on the post-judgment motion.
 
 

______________________________
Norman H. Jackson,
Presiding Judge
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge
 
 

______________________________
Russell W. Bench, Judge