Raiser v. Buirley

----ooOoo----

Aaron Raiser,
Plaintiff and Appellant,

v.

Steve Buirley
and Diane Buirley,
Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010844-CA

F I L E D
April 18, 2002 2002 UT App 122 Petition for Rehearing granted in this case;
see Opinion issued on August 29, 2002.
-----

Fourth District, Provo Department
The Honorable James R. Taylor

Attorneys:
Aaron Raiser, Provo, Appellant Pro Se
Steve Buirley and Diane Buirley, Orem, Appellees Pro Se -----

Before Judges Bench, Orme, and Thorne.

PER CURIAM:

This case is before the court on a sua sponte motion to dismiss for lack of jurisdiction because the notice of appeal was not filed within thirty days of the entry of the judgment or order being appealed, as required by Rule 4(a) of the Utah Rules of Appellate Procedure.

Appellant Aaron Raiser responds to the motion by stating only that the notice of appeal was timely filed. However, the record reflects that the judgment of dismissal was entered on August 31, 2001, and the notice of appeal was date-stamped as filed in the district court on October 5, 2001. The notice of appeal itself recites that Raiser was not able to respond in a timely manner because the decision was mailed to an incorrect address. "In determining whether a notice of appeal is timely filed and established jurisdiction in an appellate court, this court must be bound by the filing date indicated on the notice of appeal transmitted to it by the trial court." In re M.S., 781 P.2d 1287, 1288 (Utah Ct. App. 1989). Accordingly, this court is bound by the date stamped on the notice of appeal by the district court.(1) We are precluded from extending the time for appeal by Rule 2 of the Utah Rules of Appellate Procedure. Raiser did not seek or obtain an extension of the appeal time from the trial court by a timely motion made under Rule 4(e) of the Utah Rules of Appellate Procedure.

On the basis of the foregoing, we dismiss the appeal for lack of jurisdiction.
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
Gregory K. Orme, Judge
 
 

______________________________
William A. Thorne Jr., Judge

1. The trial court docket reflects that a notice of appeal was returned to Raiser because it was not accompanied by the required filing fee. See Utah R. App. P. 3(f) (stating the trial court shall not accept a notice of appeal unless the filing fee is paid).