Larsen v. Exclusive

----ooOoo----

Wesley L. Larsen,
Plaintiff and Appellant,

v.

Exclusive Cars, Inc.,
a Utah corporation;
and Floyd Maestas, an individual,
Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010282-CA

F I L E D
October 3, 2002 2002 UT App 318 -----

Third District, Sandy Department
The Honorable Denise P. Lindberg

Attorneys:
Loren M. Lambert, Midvale, for Appellant
Nick J. Colessides and Floyd Maestas, Salt Lake City, for Appellees -----

Before Judges Jackson, Davis, and Greenwood.

DAVIS, Judge:

Wesley Larsen (Plaintiff) appeals the trial court's order granting summary judgment in favor of Exclusive Cars, Inc. and Floyd Maestas (Defendants). Plaintiff also challenges the trial court's award of attorney fees to Defendants, as well as the trial court's failure to enter judgment on the amount of attorney fees. We dismiss for lack of jurisdiction.

On September 3, 1999, Plaintiff filed a complaint against Defendants, alleging fraudulent and negligent misrepresentation. Four months later, Defendants filed a motion for summary judgment. In response, Plaintiff conceded that the negligent misrepresentation claim failed on the bases of the merger doctrine and parol evidence rule.

On February 21, 2001, the trial court ruled as a matter of law that, on the undisputed facts of this case, there was no reasonable reliance on the part of Plaintiff. Therefore, the court granted Defendants' motion for summary judgment.

Less than a month later, Defendants submitted a proposed judgment to the trial court. Plaintiff objected because the judgment granted attorney fees to Defendants, although attorney fees had not been previously awarded. Meanwhile, Plaintiff filed a notice of appeal.

On March 30, 2001, the trial judge entered judgment on the order of summary judgment, which included an award of "reasonable attorney[] fees and costs" to Defendants. The amount of fees claimed was to be presented in an affidavit by Defendants' counsel. On July 14, 2001, Defendants filed the affidavit in support of the judgment for the award of attorney fees in the amount of $16,678.85. Shortly thereafter, Plaintiff filed a second notice of appeal and an objection to Defendants' affidavit. Defendants then prepared a revised judgment that ordered the calculated amount be awarded to Defendants. However, the judgment was never signed by the trial judge.

Finally, on September 17, 2001, Plaintiff requested that the trial court make a decision concerning the request for attorney fees. The trial court never responded. In fact, the only trial court activity concerning this matter was a handwritten note by another judge on the trial court docket, dated October 26, 2001, that indicated he believed the judgment could not be signed because it was a matter currently on appeal.

"This court does not have jurisdiction over an appeal unless it is taken from a final judgment . . . or qualifies for an exception to the final judgment rule." Loffredo v. Holt, 2001 UT 97,¶10, 37 P.3d 1070; see also Utah R. App. P. 3(a). Such a rule "prevents a party from prematurely appealing a non-final judgment" and "saves this court from having to deal with piecemeal appeals in the same litigation." Loffredo, 2001 UT 97 at ¶11 (quotations and citation omitted). "For [a trial court's] order to constitute a final judgment, it must end the controversy between the litigants." Id. at ¶12. Thus, "the trial court's decision must dispose of the claims of all parties." Id. If the final judgment rule is not satisfied, "the proper remedy for this court is dismissal." Id. at ¶11.

The Utah Supreme Court has clearly determined that "there is no final judgment for the purposes of appeal until the amount of [attorney] fees has been ascertained and granted." ProMax Dev. Corp. v. Raile, 2000 UT 4,¶12, 998 P.2d 254; see also Loffredo, 2001 UT 97 at ¶12 (following ProMax ruling that trial court must determine amount of attorney fees before judgment is final); Sittner v. Schriever, 2000 UT 45,¶19, 2 P.3d 442 (noting judgment that failed to fix amount of attorney fees to be awarded was not final). This rule operates to preserve judicial economy so that a challenge to attorney fees can be raised in the same appeal as the merits of the case. SeeProMax, 2000 UT 4 at ¶14. "Otherwise, a second appeal must be taken to challenge the amount of attorney fees awarded subsequent to the judgment on the merits." Id. Thus, a trial court must determine the amount of attorney fees to be awarded in order for a judgment to be final.(1) See id.

In the present case, Plaintiff has appealed the trial court's decision to grant Defendants' motion for summary judgment. As part of the judgment, the court awarded Defendants reasonable attorney fees and costs in an amount to be later determined. Defendants' counsel prepared a revised judgment reflecting a specific amount for attorney fees and costs, and Plaintiff subsequently filed an objection to the determined amount. The trial court never signed the revised judgment. Thus, the issue of the amount of attorney fees and costs to be awarded is pending before the trial court.

Because no final judgment has been entered that reflects the amount of attorney fees awarded to Defendants, we must dismiss this case for lack of jurisdiction.
 
 

______________________________
James Z. Davis, Judge -----

WE CONCUR:
 
 

______________________________
Norman H. Jackson,
Presiding Judge
 
 

______________________________
Pamela T. Greenwood, Judge

1. An unsigned judgment that includes an amount of attorney fees is not considered final. See Utah R. Civ. P. 58A(b) (specifying that "all judgments shall be signed by the judge").