GTO's...Trust v. Sylvester

GTO's...Trust v. Sylvester

IN THE UTAH COURT OF APPEALS

----ooOoo----

GTO's Rule Living Trust,

Plaintiff and Appellant,

v.

Robert S. Sylvester,

Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040117-CA
 

F I L E D
(April 8, 2004)
 

2004 UT App 99

 

-----

Third District, Salt Lake Department

The Honorable Bruce C. Lubeck

Attorneys: Robert W. Hughes, Salt Lake City, for Appellant

Robert J. Stansfield, Salt Lake City, for Appellee

-----

Before Judges Billings, Jackson, and Thorne.

PER CURIAM:

GTO's Rule Living Trust (GTO) seeks to appeal the trial court's clarification of a final judgment entered in January 2003. This matter is before the court on Appellee Sylvester's motion to dismiss the appeal for lack of jurisdiction.

After a bench trial in November 2002, the trial court determined the value of the partnership between James Hefferon and Robert Sylvester as of the stipulated dissolution date of August 1998. The trial court determined that the value was the sum of the partnership's tangible assets plus the net income for the year. The final judgment was entered and satisfied in January 2003. No appeal was taken from the judgment.

In November 2003, GTO filed a "request for clarification" with the trial court, asking the court to specify whether the office building that housed the partnership offices was included in the partnership valuation as a partnership asset. In January 2004, the trial court issued its clarification, specifying that the building had been considered as a partnership asset and included in the valuation. GTO filed a timely appeal from the clarification, asserting on appeal that the building was improperly included in the partnership valuation.

A request for judicial clarification is not specifically provided for in Utah court rules. However, this court may disregard the title of a pleading and address the substance if it is merely mistitled. See, e.g., Watkiss & Campbell v. Foa & Sons, 808 P.2d 1061, 1064-65 (Utah 1991) (treating motion for reconsideration as motion for new trial). But, evaluating the request for clarification, it appears this clarification does not come within the scope of any of the post-judgment motions provided for in rule 59 or rule 60 of the Utah Rules of Civil Procedure.

Rule 59 and rule 60 set forth particular grounds for post- judgment relief, including motions for a new trial, to alter or amend judgment, or to set aside judgment. See Utah R. Civ. P. 59, 60. Appellant does not allege any of the grounds listed in the rules, nor does Appellant request the relief provided by the rules. The request for clarification does not qualify as a rule 59 motion which would toll the time for appeal. See Utah R. Civ. P. 59. Nor does it qualify as a rule 60 motion which would be separately appealable. See Utah R. Civ. P. 60.

Furthermore, the request for clarification on its own does not renew any appeal time. The trial court's clarification does not alter the substantive rights of the parties, nor resolve any outstanding issue between the parties, nor even require any further action from the court or the parties. It appears that the trial court's clarification was a confirmation or reentry of the order previously entered in January 2003. "Where a judgment is reentered, and the subsequent judgment does not alter the substantive rights affected by the first judgment, the time for appeal runs from the first judgment." Foster v. Montgomery, 2003 UT App 405,¶18, 82 P.3d 191 (quotations and citation omitted). Thus, the time for appeal in this matter ran from the first judgment entered.

The time for appeal ran from the entry of the final judgment in January 2003, and expired in February 2003. Appellant's request for clarification did not alter or renew the time for appeal. The time for filing an appeal is
jurisdictional. See Utah R. App. P. 4; State v. Montoya, 825 P.2d 676, 678 (Utah Ct. App. 1991).

We therefore dismiss this appeal for lack of jurisdiction.

______________________________

Judith M. Billings,

Presiding Judge

______________________________

Norman H. Jackson, Judge

______________________________

William A. Thorne Jr., Judge