Crestwood Cove v. Turner

Crestwood Cove v. Turner

IN THE UTAH COURT OF APPEALS
 

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Crestwood Cove Apartments Business Trust dba
Cottonwood Creek Apartments and Shangri La Ubo,

Plaintiff and Appellant,

v.

Shawn Turner and Larsen Kirkham & Turner,

Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication
 

Case No. 20040539-CA
 

F I L E D
(December 2, 2004)
 

2004 UT App 454

 

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Third District, Salt Lake Department

The Honorable Robin W. Reese

Attorneys: D. Kendall Perkins, Sandy, for Appellant

Michael F. Skolnick, Salt Lake City, for Appellees

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Before Judges Billings, Bench, and Orme.

PER CURIAM:

    Crestwood Cove Apartments Business Trust (Crestwood Cove) appeals the trial court's order granting Shawn Turner and Larsen Kirkham & Turner's motion for summary judgment. This case is before the court on its own motion for summary dismissal for lack of jurisdiction due to the absence of a final, appealable order or judgment. See Utah R. App. P. 3(a).

    The trial court entered summary judgment against Crestwood Cove on May 17, 2004. This was not a final, appealable order because a counterclaim remained pending against Crestwood Cove. See Don Houston, M.D., Inc. v. Intermountain Health Care, 933 P.2d 403, 406 (Utah Ct. App. 1997). Nevertheless, Crestwood Cove filed a Notice of Appeal from this order on June 14, 2004. On October 22, 2004, the trial court entered an order entitled "Nunc Pro Tunc Order of Finality," stating that the prior summary judgment order was intended to be a final order for purposes of rule 54(b) of the Utah Rules of Appellate Procedure.(1)

    Nonfinal orders may be appealed pursuant to rule 5 of the Utah Rules of Appellate Procedure, "or if the trial court expressly certifies them as final for purposes of appeal under Rule 54 of the Utah Rules of Civil Procedure." Don Houston, M.D., Inc., 933 P.2d at 406. However, rule 54(b) certifications "must comply with the rule's requirements." Id.

    Rule 54 allows the trial court to "direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination by the court that there is no just reason for delay and upon an express direction for the entry of judgment." Utah R. Civ. P. 54(b) (emphasis added). Further, an order certifying a judgment as final under rule 54(b) must include "findings supporting the conclusion that such orders are final," by explaining "the lack of factual overlap between the certified and remaining claims." Bennion v. Pennzoil Co., 826 P.2d 137, 139 (Utah 1992). Finally, a rule 54(b) order must contain a brief explanation of the trial court's "rationale as to why there is no just reason for delay." Id.

    No certification order satisfying the requirements of rule 54(b) and Bennion was entered in this case. The "certifications"
--whether we consider the May 17, 2004 order, the October 22, 2004 order, or both--are deficient in that each fails to recite, much less explain, why there is no just reason for delay. See Schwenke v. Intermountain Inc., 2003 UT App 232 (per curiam).(2) Moreover, there is no explanation whatsoever regarding "the lack of factual overlap between the certified and remaining claims." Bennion, 826 P.2d at 139.

    Because the order appealed from was not final and was not properly certified under rule 54(b), this appeal was not properly taken. See, e.g., Backstrom Family Ltd. P'ship v. Hall, 751 P.2d 1157, 1159 (Utah Ct. App. 1988) (concluding failure to comply with procedural requirements resulted in order not being properly certified). We therefore lack jurisdiction over the appeal and must dismiss. See Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989).

    This 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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Judith M. Billings,

Presiding Judge

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Russell W. Bench,

Associate Presiding Judge

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Gregory K. Orme, Judge

1. On October 1, 2004, the parties submitted a letter to this court stating that they agreed that the summary judgment order may be considered final for purposes of appeal and that the current issue should be resolved by this court. However, "acquiescence of the parties is insufficient to confer jurisdiction on the court, and a lack of jurisdiction can be raised by the court or either party at any time." A.J. Mackay Co. v. Okland Constr. Co., 817 P.2d 323, 325 (Utah 1991).

2. Furthermore, we note that the trial court did not have jurisdiction to alter its May 17, 2004 order nunc pro tunc once this appeal was filed. See, e.g., Kennedy v. New Era Indus., 600 P.2d 534, 536 n.3 (Utah 1979). Although this court has the power to grant a temporary remand to allow such alterations under certain circumstances, this remedy was not requested before the trial court entered its amended order. See Don Houston, M.D., Inc. v. Intermountain Health Care, 933 P.2d 403, 406 (Utah Ct. App. 1997).