Deep Creek Ranch v. State Armory

Deep Creek Ranch v. State Armory

IN THE UTAH COURT OF APPEALS

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Deep Creek Ranch, LLC,
Plaintiff and Appellee,

v.

Utah State Armory Board, Utah National Guard, and John Does I through X,
Defendants and Appellants.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030084-CA
 

F I L E D
(June 12, 2003)
 

2003 UT App 200

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Third District, Tooele Department

The Honorable David S. Young

Attorneys: Mark L. Shurtleff, Thomas D. Roberts, and Mark E. Burns, Salt Lake City, for Appellants

James E. Morton and Scott S. Kunkel, Salt Lake City, for Appellee

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Before Judges Jackson, Billings, and Greenwood.

PER CURIAM:

This case is before the court on the motion of Appellee Deep Creek Ranch (Deep Creek) for summary dismissal for lack of jurisdiction.

Appellants Utah State Armory Board and the Utah National Guard initiated this appeal after entry of a memorandum decision granting Deep Creek's Motion for Summary Judgment Re: Specific Performance, which they contend resolved the final issue in the case and is, accordingly, a final appealable judgment. Deep Creek claims that the memorandum decision is not a final judgment because (1) the separate liability of the Utah National Guard was not resolved, (2) there are unresolved claims for compensatory and consequential damages, and (3) Deep Creek is entitled to an award of attorney fees. Appellants concede that an unresolved claim for attorney fees prevents a decision from being a final judgment, but urge this court to conclude that Deep Creek is not entitled to attorney fees.

Based upon a review of the record we conclude that the memorandum decision is not a final appealable judgment. The form of the decision reflects that it was intended only to resolve the issue as to the measure of damages for the breach of contract claim. Although Deep Creek sought specific performance as a remedy for the breach of contract and promissory estoppel causes of action asserted in its complaint, it also sought compensatory damages, measured by lack of production from the ranch, as a separate remedy for the breach of the implied covenant of good faith and fair dealing. That cause of action and the damages claim were not resolved by either of two summary judgments entered by the court. The sales agreement also allowed an award of attorney fees to the prevailing party in any action to enforce the agreement. The determination of entitlement to attorney fees under the agreement, and the amount of any award, are matters for determination by the trial court, not by this court on appeal. Appellants concede that the failure to resolve a claim for attorney fees renders a judgment not final for purposes of appeal. Deep Creek also contends that its separate claims against the Utah National Guard were not resolved. The record reflects that Deep Creek did not distinguish the actions of the Utah State Armory Board from those of the Utah National Guard; nevertheless, a final judgment should clarify the disposition of any claims and causes of action asserted as to each defendant in an action.

We dismiss the appeal because it is not taken from a final appealable judgment that fully resolved the case before the trial court. Our dismissal is without prejudice to a timely appeal initiated after entry of a final appealable judgment.

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Norman H. Jackson,

Presiding Judge

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Judith M. Billings,

Associate Presiding Judge

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Pamela T. Greenwood, Judge