The Doctor's Co. v. Drezga et al.

IN THE UTAH COURT OF APPEALS
 

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The Doctor's Company,

Plaintiff and Appellee,

v.

G. Gregory Drezga, M.D., Heidi Judd, personally and as the natural parent and guardian of Athan Montgomery for and on behalf of Athan Montgomery,

Defendants.

MEMORANDUM DECISION

(Not For Official Publication)
 

Case No. 20040079-CA
 

F I L E D

(June 4, 2004)
 

2004 UT App 189

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Third District, Salt Lake Department

The Honorable Leslie A. Lewis

Attorneys: Paul C. Burke, Salt Lake City, Appellant

Jaryl L. Rencher and Vaun B. Hall, Salt Lake City, for Appellee

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Before Judges Billings, Greenwood, and Orme.

PER CURIAM:

    Paul Burke, appointed counsel for defendant Drezga, appeals the trial court's order appointing him as counsel for an absentee defendant. The trial court certified the order as final and appealable under Utah Rule of Civil Procedure 54(b). This matter is before the court on its own motion for summary disposition for lack of jurisdiction.

    The Doctor's Company (TDC) filed the instant suit seeking rescission, declaratory judgment, and damages regarding a malpractice insurance policy issued to Drezga. The trial court appointed Burke to represent Drezga because Drezga is apparently out of the jurisdiction, and has not been located. It is unknown whether Drezga has any knowledge of this action.

    After being appointed as counsel, Burke filed a motion for certification to appeal the order, seeking to determine whether the order was appropriate and whether he could represent an absentee client without violating Utah's rules of professional conduct. The trial court certified the order under rule 54(b), noting that it needed "guidance" as to how to proceed.

    Rule 54(b) permits a trial court to "direct the entry of a final judgment as to one or more but fewer than all of the claims or parties" in a matter involving either multiple claims or multiple parties. Utah R. Civ. P. 54(b). The effect of directing a final judgment for a partial disposition of a case is to make the specified final judgment immediately appealable, although the remainder of the case goes forward in the trial court. See id.; Kennecott Corp. v. Utah State Tax Comm'n, 814 P.2d 1099, 1102 (Utah 1991).

    The question of whether an order is eligible for certification under rule 54(b) is a question of law. See Kennecott Corp., 814 P.2d at 1100. Certain requirements must be met before an order is properly certifiable under rule 54(b). First, the action must involve multiple claims for relief or multiple parties. Second, the judgment appealed must be an order that would be appealable if there were no other claims or parties remaining in the action. Third, the trial court must make the specific determination that there is no just reason for delay. See id. at 1101.

    The second element is a finality requirement. The certified order must be a "final judgment as to one or more but fewer than all of the claims or parties." Utah R. Civ. P. 54(b). "[A]n order that does not wholly dispose of a claim or a party is not 'final' under rule 54(b) and will not be appealable, even with such a certification." Pate v. Marathon Steel Co., 692 P.2d 765, 768 (Utah 1984). The order appointing counsel is not an order eligible for certification because it is not a final order wholly disposing of a claim.

    To be a claim within the scope of rule 54(b), the claim must be "a claim for relief . . . presented in an action." Utah R. Civ. P. 54(b). The claims for relief involved in this case are rescission, declaratory judgment, and damages, based on alleged misrepresentations and failure to cooperate. There is no "claim" for attorney representation. No part of the litigation has been resolved by the order appointing counsel. There has been no "final judgment as to one or more but fewer than all of the claims or parties." Id. As a result, the order of the court appointing Burke as attorney is not a final order eligible for certification under rule 54(b).(1)

    An order improperly certified under rule 54(b) is not appealable. See Pate, 692 P.2d at 768. The order appointing counsel was not eligible for certification under rule 54(b), and was improperly certified. As a result, this court lacks jurisdiction to hear this appeal. This appeal is dismissed without prejudice to the filing of an appeal after the entry of a final order in this case.

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Judith M. Billings,

Presiding Judge

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Pamela T. Greenwood, Judge

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Gregory K. Orme, Judge

1. Additionally, although Burke is affected by the challenged order, he is not a party to the underlying action, thus making his standing to appeal suspect. As a non-party to the core proceeding, but a person subject to the order, Burke would have standing under rule 65B(d) of the Utah Rules of Civil Procedure to challenge the authority of the court to issue the appointment order, and seek relief under that rule. See Utah R. Civ. P. 65B(d) (providing standing to any person aggrieved or whose interests are threatened by a court's exceeding its jurisdiction or abusing its discretion).