Schwenke v. Intermntn Inc.

Schwenke v. Intermntn Inc.

IN THE UTAH COURT OF APPEALS

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Wilma L. Schwenke, Tania P. Schwenke, and Wayne Wong,
Plaintiffs and Appellants,

v.

Intermountain Inc., a Utah corporation, doing business as Intermountain Isuzu; Isuzu LT, a business trust; Isuzu Motors Acceptance Corp., a California corporation; and Bank of America, a DC corporation,

Respondents and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20021027-CA
 

F I L E D
(July 3, 2003)
 

2003 UT App 232

 

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Third District, Salt Lake Department

The Honorable Stephen L. Henriod

Attorneys: Wilma L. Schwenke and Tania P. Schwenke, Heber City, and Wayne Wong, West Jordan, Appellants Pro Se

P. Bryan Fishburn and Richard L. King, Salt Lake City, for Appellees Intermountain Inc. and Bank of

America

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Before Judges Jackson, Greenwood, and Orme.

PER CURIAM:

This case is before the court on Appellees' motion for summary disposition. Appellees claim that Appellants seek to appeal this case in its entirety, but because only a portion of the case was certified by the trial court, pursuant to rule 54(b) of the Utah Rules of Civil Procedure, the remaining claims are not final and appealable. See Utah R. App. P. 4. Appellants contend that all claims of all parties have been resolved and the case is appealable.

The trial court has not resolved all claims of all parties as Appellants contend. See Sittner v. Schriever, 2000 UT 45,¶8, 2 P.3d 442 (judgment is final when "there is nothing further to be decided by the district court"). The trial court has not resolved either the counter-claims or claims involving two of the three vehicles, which were the subject of the leases. Therefore, the entire action is not final and appealable and this court lacks jurisdiction of those claims not involving the certified order. When a matter is outside the court's jurisdiction, it retains only the authority to dismiss the action. See Varian-Eimac v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989).

Moreover, the certification is deficient in that it fails to recite, much less to explain, why there is no just reason for delay. Likewise, the trial court made no finding that there is a "lack of factual overlap between the certified and remaining claims." Bennion v. Penzoil Co., 826 P.2d 137, 139 (Utah 1992); Pasquin v. Pasquin, 1999 UT App 245,¶12 n.4, 988 P.2d 1. Because these determinations are subject to appellate review a brief explanation is necessary. See id. Therefore, we vacate the certification.

The appeal is dismissed without prejudice to the timely filing of an appeal from a final order or proper certification pursuant to rule 54(b) of the Utah Rules of Civil Procedure.

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Norman H. Jackson,

Presiding Judge

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Pamela T. Greenwood, Judge

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Gregory K. Orme, Judge