Anderson v. Wilshire

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Anderson v. Wilshire

IN THE UTAH COURT OF APPEALS

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R. Michael Anderson and Robert H. Anderson,

Plaintiffs and Appellants,

v.

Wilshire Investments, L.L.C.,

Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020726-CA
 

F I L E D
(February 5, 2004)
 

2004 UT App 19

 

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Fourth District, Heber City Department

The Honorable Donald J. Eyre Jr.

Attorneys: Ronald Ady, Salt Lake City, for Appellants

Mark F. James and Mark H. Richards, Salt Lake City, for Appellee

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Before Judges Billings, Bench, and Thorne.

BENCH, Associate Presiding Judge:

Wilshire Investments (Wilshire) contends that it is entitled to an award of costs and attorney fees, but acknowledges that "[t]he trial court reserved ruling on Wilshire's request." The Andersons similarly argue that they should be awarded costs and attorney fees "at appeal and in the court below." In its Findings, Conclusions, and Order Dismissing [Andersons]' Petition for Removal of Wrongful Lien and Denying Motion for Reconsideration or New Trial, the trial court ruled as follows: "Respondent's [Wilshire's] request for an award of costs and attorney's fees is denied at this time. The request is reserved for consideration by the Court at a later date should this case continue."(1)

As is apparent from this ruling, the trial court anticipated that the Andersons would continue to "pursue other legal remedies as set forth in Section 38-9-7(4)." Therefore, the trial court reserved ruling on the issue of attorney fees until the Andersons had pursued other remedies. The Andersons instead filed a notice of appeal. In our order dated March 17, 2003, we denied Wilshire's motion for summary disposition narrowly on the ground that the Andersons were not required to pursue other remedies in order to render the dismissal of the wrongful lien action a final, appealable order. However, because the trial court reserved ruling on the claim for attorney fees until other potential claims were resolved, and the potential claims were not pursued, the trial court was not given an opportunity to resolve the issue of attorney fees. "[A] trial court must determine the amount of attorney fees awardable to a party before the judgment becomes final for the purposes of an appeal under Utah Rule of Appellate Procedure 3." ProMax Dev. Corp. v. Raile, 2000 UT 4,¶15, 998 P.2d 254. The Utah Supreme Court reasoned that

[i]t will save the resources of the parties and this court if the issue of attorney fees can be determined in the same appeal in which the merits of the underlying judgment are examined. Otherwise, a second appeal must be taken to challenge the amount of attorney fees awarded subsequent to the judgment on the merits and then examined in the light of the judgment on the merits. This would be wasteful.

Id. at ¶14.

Because the claim for attorney fees remains pending before the trial court, we lack jurisdiction to hear the appeal. "When a matter is outside the court's jurisdiction it retains only the
authority to dismiss the action." Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989).

This appeal is therefore dismissed for lack of jurisdiction.

______________________________

Russell W. Bench,

Associate Presiding Judge

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WE CONCUR:

______________________________

Judith M. Billings,

Presiding Judge

______________________________

William A. Thorne Jr., Judge

1. Additionally, the trial court, during three separate discussions of the issue, made the following statements:

(1) "Well, I feel I denied the request for attorneys fees at the time of the hearing but I did indicate that, you know, if that was pursued and it was shown at the time of trial that it was frivolous or it was less than concrete whether there was a basis for your claim, then I just reserved the right to award attorneys fees as the statute permits."

(2) "I'm not going to make any determination right now as to awarding attorneys fees either way. I denied it initially and under the statute if the matter goes further, either side has a right to request attorneys fees."

(3) "Well, if you prevail at a trial in this matter, the statute permits the consideration of attorneys fees."

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