AFIE v. Harrison

AFIE v. Harrison

IN THE UTAH COURT OF APPEALS
 

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Armed Forces Insurance Exchange, a Kansas corporation,

Plaintiff and Appellee,

v.

Judi Harrison,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040234-CA
 

F I L E D
(August 12, 2004)
 

2004 UT App 270

 

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Third District, Salt Lake Department

The Honorable Joseph C. Fratto Jr.

Attorneys: Joseph C. Rust, Salt Lake City, for Appellant

Andrew M. Morse, David L. Pinkston, and David Jason Hawkins, Salt Lake City, for Appellee

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Before Judges Bench, Davis, and Greenwood.

PER CURIAM:

This case is before the court following a remand after an earlier appeal to the Utah Supreme Court. See Armed Forces Ins. Exch. v. Harrison, 2003 UT 14, 70 P.3d 35. Judi Harrison appeals an order she claims was a de facto denial of her motion to dismiss and seeks a decision from this court mandating dismissal of the underlying case by the district court. Armed Forces Insurance Exchange (AFIE) moves to dismiss the appeal on the basis that it is not taken from a final appealable order and we lack jurisdiction over the appeal, and on the additional ground that the appeal is moot.

AFIE obtained a judgment against Restorations Systems, Inc. on several theories, including fraud, and was awarded damages. See id. at ¶1. The district court also entered judgment against Harrison, a corporate officer of Restoration Systems, Inc., finding her personally liable on the fraud claims and awarding damages. See id. Only Harrison appealed. The supreme court held that the findings of fact pertaining to Harrison's personal liability for fraud were insufficient to allow appellate review of the district court's decision and remanded "for entry of further findings of fact regarding the essential elements of fraud to support Harrison's personal liability in accordance with this opinion, or for further proceedings consistent with this opinion." Id. at ¶44.

On remand, AFIE prepared proposed additional findings of fact with citations to the existing record and transcripts. Harrison filed a motion to dismiss. The district court denied AFIE's request to supplement the record with additional evidence. On March 5, 2004, the district court entered a minute entry order concluding that it was unable to make further specific findings of fact that would support Harrison's personal liability for fraud. The court declined to rule on Harrison's motion to dismiss. Harrison filed this appeal, contending that the March 5, 2004 minute entry order was a de facto denial of her motion to dismiss and seeking an award of attorney fees from this court pursuant to Utah Code section 78-27-56 (2002).

The March 5, 2004 minute entry order is not a final appealable order because it did not fully resolve the case before the district court. "For a judgment or order to be final, it must dispose of the case as to all parties, and finally dispose of the subject-matter of the litigation on the merits of the case." In re S. Am. Ins. Co., 930 P.2d 376, 378 (Utah Ct. App. 1996). "In other words, a judgment is final when it ends the controversy between the parties litigant." Id. Harrison contends that the March 5, 2004 order was a de facto denial of her motion to dismiss; however, even if the order is construed as a denial of the motion to dismiss, it is not final and appealable because it left the case pending in district court.

Harrison opposes AFIE's motion for dismissal for lack of jurisdiction as untimely under rule 10 of the Utah Rules of Appellate Procedure. "Lack of jurisdiction can be raised at any time by either party or by the court." Olson v. Salt Lake City Sch. Dist., 724 P.2d 960, 964 (Utah 1986). Once this court determines that it lacks jurisdiction over an appeal, "we retain only the authority to dismiss the action." Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989).

After this appeal was filed, AFIE filed a motion to voluntarily dismiss its remaining claims. In an Order of Dismissal with Prejudice entered on June 24, 2004, the district court dismissed the claims against Harrison with prejudice, with the parties to bear their own costs and attorney fees. The district court also denied Harrison's request for attorney fees under section 78-27-56, which was based on her claim that AFIE proceeded in bad faith by continuing to pursue the case following remand. Harrison contends that this final order did not resolve her own motion to dismiss and represents that she sought reconsideration in the district court. However, this has no relevance to our determination that the March 5, 2004 minute entry order that Harrison appeals is not a final appealable judgment. If Harrison intends to appeal from the June 24, 2004 order of dismissal, which also denied her claim for attorney fees, she must have filed a timely notice of appeal from that order.

Because we lack jurisdiction over this appeal from the March 5, 2004 minute entry order, we "retain only the authority to dismiss" the appeal. Id. Accordingly, we do not consider whether the June 24, 2004 Order of Dismissal with Prejudice also rendered the appeal moot. We dismiss the appeal for lack of jurisdiction.

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Russell W. Bench,

Associate Presiding Judge

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James Z. Davis, Judge

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Pamela T. Greenwood, Judge