Chang v. Soldier Summit

----ooOoo----

Po-Cheng Chang, et al.,
Plaintiffs and Appellants,

v.

Soldier Summit Development,
a Utah limited partnership; et al.,
Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020453-CA

F I L E D
September 26, 2002 2002 UT App 307 -----

Third District, Salt Lake Department
The Honorable Glenn Iwasaki

Attorneys:
R. Brent Stephens and Heather S. White, Salt Lake City, for Appellants
David M. Wahlquist and Merrill F. Nelson, Salt Lake City, for Appellees -----

Before Judges Jackson, Greenwood, and Orme.

PER CURIAM:

This matter is before the court on Appellees' motion for summary dismissal pursuant to rule 10 of the Utah Rules of Appellate Procedure.(1) Appellees claim that the notice of appeal was untimely, thereby depriving this court of jurisdiction. Appellees also claim that Appellants filed an untimely motion to alter the judgment in the trial court. Consequently, they claim the notice of appeal filed after the ruling on that motion is untimely. Appellees further claim that the notice of appeal should have been filed within thirty days of the original judgment entered January 3, 2002.

Appellees overlook the fact that Appellants filed a prior notice of appeal in the supreme court within thirty days of the January 3, 2002 ruling along with a letter conceding that the notice was premature and filed out of an abundance of caution.(2) The supreme court dismissed the appeal without prejudice to refiling the appeal within thirty days of the trial court's order ruling on the motion to alter judgment.

Implicit in the supreme court's dismissal of the notice of appeal as premature, along with its invitation to refile within thirty days of disposition of the post-trial motion, is that the post-trial motion was deemed timely by the supreme court. The letter accompanying the notice notified the supreme court that the post-trial motion had been filed in the trial court on January 16, 2002. Had the post-trial motion been untimely, the notice of appeal would not have been premature because the time for appeal would run from entry of the January 3, 2002 order. Moreover, the trial court deemed the post-trial motion timely and addressed its merits.

Based on the forgoing, Appellees' motion to dismiss is denied. Moreover, Appellees' motion has no reasonable basis in fact or law and is without merit. See Utah R. App. P. 33(a); Maughan v. Maughan, 770 P.2d 156, 162 (Utah Ct App. 1989). Therefore, Appellants are awarded their attorney fees reasonably incurred in responding to Appellees' motion to dismiss, however, Appellants' motion for sanctions is denied insofar as it requests sanctions in addition to such attorney fees. Calculation and imposition of the attorney fees hereby awarded is deferred pending resolution of this appeal.
 
 

______________________________
Norman H. Jackson,
Presiding Judge
 
 

______________________________
Pamela T. Greenwood, Judge
 
 

______________________________
Gregory K. Orme, Judge

1. Appellants argue that this motion to dismiss was filed more than ten days after filing of the docketing statement and should not be considered. However, the time limit in rule 10 of the Utah Rules of Appellate Procedure is permissive, and this court is free to consider the merits of Appellees' motion. See Glezos v. Frontier, 896 P.2d 1230, 1233 (Utah Ct. App. 1995).

2. Appellees contend that Appellants misled the supreme court by stating, in their first notice of appeal, that the trial court judgment was entered January 8, rather than January 3. Review of the record shows that Appellants correctly stated the dates in their notice of appeal.