Kanth v. Kanth

----ooOoo----

Cory Leigh Kanth,
Petitioner and Appellee,

v.

Rajani Kannepalli Kanth,
Respondent and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020660-CA

F I L E D
October 10, 2002 2002 UT App 337 -----

Third District, Salt Lake Department
The Honorable Michael K. Burton

Attorneys:
Rajani Kannepalli Kanth, Salt Lake City, Appellant Pro Se
Frederick N. Green, Salt Lake City, for Appellee -----

Before Judges Jackson, Billings, and Bench.

PER CURIAM:

Appellant Rajani Kanth appeals from an unsigned minute entry denying a temporary restraining order to prevent his child from undergoing surgery to remove her tonsils and adenoids. Both the district court and this court denied emergency motions to stay the denial of a restraining order. The case is before this court on a sua sponte motion for summary disposition.

The denial of the motion for a temporary restraining order was by an unsigned minute entry; thus, it is not a final appealable judgment. See State v. Crowley, 737 P.2d 198, 198-99 (Utah 1987) ("An unsigned minute entry does not constitute a final order for purposes of appeal."). Based upon the lack of a final judgment, this court lacks jurisdiction over the appeal and it must be dismissed.

Dismissal for lack of a final judgment is generally without prejudice because the time for filing an appeal will commence upon the entry of a final appealable judgment. In this case, we conclude that the appeal should be dismissed with prejudice because it is also moot. Appellee Cory Leigh Kanth suggests the mootness of the appeal in her response, which states that the surgery scheduled for August 23, 2002 has been performed. Appellant fails to acknowledge this intervening fact and persists in arguments directed to the alleged unfitness of Appellee as custodial parent. These arguments are beyond the limited scope of this appeal and must be pursued, to the extent they are properly preserved, in the appeal from the divorce decree presently before this court as Case No. 20010718-CA. In contrast, the only issues properly before this court in the present appeal concerned the district court's denial of a temporary restraining order to prevent the surgery. As such, this appeal is moot and must been dismissed with prejudice. See generallyEllis v. Swensen, 2000 UT 101,¶25, 16 P.3d 1233.

Accordingly, we dismiss the appeal with prejudice.
 
 

______________________________
Norman H. Jackson,
Presiding Judge
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge
 
 

______________________________
Russell W. Bench, Judge