Hammond v. Orr

IN THE UTAH COURT OF APPEALS

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Don L. Hammond,
Plaintiff and Appellant,

v.

Laroy Orr,
Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20011032-CA
 

F I L E D
(June 12, 2003)
 

2003 UT App 189

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Third District, Salt Lake Department

The Honorable J. Dennis Frederick

Attorneys: David J. Hodgson, Salt Lake City, for Appellant

Bryan R. Farris, Orem, for Appellee

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Before Judges Bench, Davis, and Greenwood.

DAVIS, Judge:

Don Hammond appeals the trial court's decision to grant Laroy Orr's motion to dismiss Hammond's complaint.(1) We dismiss the appeal.

"Generally, a dismissal without prejudice is not considered to be a final[,] appealable order." Hales v. Oldroyd, 2000 UT App 75,¶1 n.2, 999 P.2d 588. "The final judgment rule, which underlies what is now Utah Rule of Appellate Procedure 3, precludes a party from taking an appeal from any orders or judgments that are not final." A.J. Mackay Co. v. Okland Constr. Co., 817 P.2d 323, 325 (Utah 1991). "Where an appeal is not properly taken, [we] lack[] jurisdiction and we must dismiss." Bradbury v. Valencia, 2000 UT 50,¶8, 5 P.3d 649.

However, a dismissal without prejudice is considered to be a final, appealable order if, according to the "general rule" set forth by the Utah Supreme Court in Bowles v. State, 652 P.2d 1345 (Utah 1982) (per curiam), "the effect of the [dismissal without prejudice] is to finally resolve the issues." Id. at 1346. In Bowles, the State moved the trial court to dismiss the plaintiffs' action on the basis of governmental immunity. See id. at 1345-46. In its ruling on the State's motion, the trial court dismissed the plaintiffs' claim without prejudice and ruled that the claim presented a situation where "governmental immunity [was] not waived." Id. On appeal, the plaintiffs argued that although the trial court dismissed the action without prejudice, the trial court's ruling on governmental immunity effectively prevented them from "mov[ing] further." Id. at 1346. Plaintiffs asserted that because the dismissal without prejudice was a ruling "on the legal merits of [the] action," it was a final, appealable order. Id. The Utah Supreme Court agreed with the plaintiffs and concluded that the trial court's dismissal without prejudice did "go to the legal merits of any cause plaintiffs may frame and hence it is appealable." Id.

This case is distinguishable from Bowles. Unlike the dismissal without prejudice in Bowles, the dismissal without prejudice of Hammond's claims does not "go to the legal merits" of his claims and does not prevent him from "mov[ing] further." Id. The trial court's order states that "[i]f [Hammond] successfully challenges the bankruptcy discharge, the instant proceeding may be reinstated upon proper application." By its terms, the order does not address the merits of Hammond's claims by dismissing his complaint without prejudice and requiring him to "challenge[] the bankruptcy discharge." The order then allows him to move further by authorizing him to "reinstate[]" the proceedings in the trial court upon a "successful[] challenge[] [to] the bankruptcy discharge."

The dismissal without prejudice in this case does not "finally resolve the issues" related to Hammond's claims. Id. Consequently, it does not satisfy the general rule set forth in Bowles and, thus, is not a final, appealable order. Because Hammond's appeal is not taken from a final, appealable order, we lack jurisdiction over it. The appeal is therefore dismissed.

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James Z. Davis, Judge

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WE CONCUR:

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Russell W. Bench, Judge

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Pamela T. Greenwood, Judge

1. The trial court's order on Orr's motion states that Hammond's claims were "dismissed without prejudice."