Gillett v. Price

Gillett v. Price

IN THE UTAH COURT OF APPEALS
 

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David K. Gillett and Majestic Air Services, Inc., a Utah corporation,

Plaintiffs and Appellants,

v.

Steve Price,

Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040682-CA
 

F I L E D
(December 9, 2004)
 

2004 UT App 460

 

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Third District, Sandy Department

The Honorable Royal I. Hansen

Attorneys: Stephen G. Homer, West Jordan, for Appellants

Randall L. Skeen, Salt Lake City, for Appellee

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Before Judges Billings, Bench, and Orme.

PER CURIAM:

    This matter is before the court on motions by this court and Appellee Steve Price for summary dismissal on the basis of lack of jurisdiction. See Utah R. App. P. 10. The civil claim filed in district court related to allegations of theft of property. The district court granted Price's motion for summary judgment in an order issued on June 16, 2004.

    In response to the court's order, Appellant David Gillett filed a motion captioned "Plaintiffs' Motion For Reconsideration [Defendant's Motion For Summary Judgment]." This motion was filed on June 9, 2004, after the initial ruling on the motion for summary judgment was made, but prior to issuance of the final order. Gillett argued in the motion for reconsideration that the district court mischaracterized the documents relied upon in determining the statute of limitations had expired on Gillett's claim. Gillett also argued in the motion that factual issues existed and, as a result, summary judgment was improper.

    Gillett's notice of appeal was filed on August 4, 2004. The notice of appeal was not timely filed from the order granting summary judgment, which was the final judgment. While Gillett's notice of appeal purports to appeal the denial of his motion to reconsider, he argues in his response to the motions for summary dismissal that the motion to reconsider should be construed as either a motion to alter or amend judgment or a motion for a new trial, pursuant to rule 59(e) of the Utah Rules of Civil Procedure. He cites Salt Lake Knee & Sports Rehabilitation v. Salt Lake City Knee & Sports Medicine, 909 P.2d 266, 268 (Utah 1995) and Watkiss & Campbell v. Foa & Son, 808 P.2d 1061, 1065 (Utah 1991), in support of his proposition.

    If construed as a motion to alter or amend judgment or a motion for a new trial, Gillett's notice of appeal would be timely because these are post-trial motions, enumerated in rule 4(b) of the Utah Rules of Appellate Procedure, which toll the time for filing a notice of appeal until thirty days after issuance of an order denying the post-trial motion. See Watkiss & Campbell, 808 P.2d at 1064.

    Gillett's motion, however, is not properly construed as a motion to amend or alter judgment or as a motion for a new trial. There is no indication that the trial court construed Gillett's motion as either a motion to alter or amend the judgment or as a motion for a new trial. Furthermore, the motion does not meet the requirements for either motion.

    This court reviews the rulings of the trial court. Therefore, this court considers whether the trial court has abused its discretion in construing, or not construing, a motion to reconsider as a motion that tolls the time for filing a notice of appeal. Nothing in the district court's order denying Gillett's motion indicates that the court construed Gillett's motion as anything other than a motion to reconsider. Thus the district court did not abuse its discretion in declining to construe the motion as a rule 4(b) motion, especially given that the motion does not meet the requirements of a rule 59 motion. See Utah R. Civ. P. 59(a),(e).

    Because Gillett's notice of appeal was timely from the order denying the motion to reconsider, the question remains whether this court has jurisdiction to consider an appeal of that order. Because the rules of civil procedure do not allow for a motion to reconsider, such a motion will be reviewed only if it could been properly brought under a rule, based on its substance, but was incorrectly captioned. See Salt Lake Knee & Sports Rehabilitation, 909 P.2d at 268. As we have already explained, Gillette's motion cannot be construed as a motion made under the rules of civil procedure.

    For the forgoing reasons, this appeal is dismissed for lack of jurisdiction because of an untimely notice of appeal.

    Price seeks attorney fees and costs based on rules 33 and 34 of the Utah Rules of Appellate Procedure. Price has not sufficiently argued, and we do not conclude, that this appeal was frivolous or for purposes of delay. We therefore decline to award attorney fees. Costs are awarded by operation of rule 34(a) of the Utah Rules of Appellate 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