Martin v. Ballesteros

Martin v. Ballesteros

IN THE UTAH COURT OF APPEALS
 

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Michael Clayton Martin,

Plaintiff and Appellant,

v.

Benjamin R. Ballesteros,

Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040475-CA
 

F I L E D
(October 15, 2004)
 

2004 UT App 359

 

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Third District, Salt Lake Department

The Honorable L.A. Dever

Attorneys: Michael Clayton Martin, Salt Lake City, Appellant Pro Se

Jan P. Malmberg and John Haslam Bailey, Salt Lake City, for Appellee

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Before Judges Davis, Jackson, and Orme.

PER CURIAM:

The district court dismissed Appellant Michael Clayton Martin's complaint, with prejudice, in an order entered on February 2, 2004. Martin incorrectly asserted that a certification under rule 54(b) of the Utah Rules of Civil Procedure was necessary. In a signed Minute Entry Ruling, dated February 12, 2004, the district court advised Martin that the dismissal was a final appealable judgment. In another signed Minute Entry Ruling, dated March 3, 2004, the district court again advised Martin that certification was not an issue because the case was dismissed on February 2, 2004, and that his request to add parties to a dismissed lawsuit was improper and was denied. In a Minute Entry Ruling dated March 31, 2004, the district court denied Martin's March 30, 2004 request for an extension of the time to appeal.

In a signed Minute Entry Ruling dated April 30, 2004, the district court granted the request of Appellee Benjamin Ballesteros for attorney fees of $250.00 incurred in responding to Martin's post-dismissal motions. On June 1, 2004, Martin filed a notice of appeal from the April 30, 2004 ruling, and on June 16, 2004, he filed a duplicate notice of appeal. We consolidated the appeals.

The notice of appeal filed on June 1, 2004, and again on June 16, 2004, is untimely insofar as Martin seeks to appeal the dismissal of his complaint because the appeal was not filed within thirty days of entry of the order of dismissal on February 2, 2004. See Utah R. App. P. 4(a) (stating that a notice of appeal must be filed within thirty days of the date of entry of the judgment or order appealed). Accordingly, we lack jurisdiction over an appeal of the dismissal. However, the notice of appeal filed on June 1, 2004, was filed timely after entry of the April 30, 2004 Minute Entry Ruling. Accordingly, our review is limited to determining whether the appeal of the post-dismissal award of attorneys fees presents a substantial question for appellate review.

Attorney fees generally cannot be recovered unless provided for by statute or by contract. See Canyon Country Store v. Bracey, 781 P.2d 414, 419 (Utah 1989). The only apparent basis for an attorney fees award in this case is Utah Code section 78-27-56, which allows an award of "reasonable attorney's fees to a prevailing party if the court determines that the action . . . was without merit and not brought or asserted in good faith." Utah Code Ann. § 78-27-56 (2002). "Under the plain language of this statute, attorney fees are appropriately awarded only if the trial court determines that three requirements are met: (1) the party seeking fees prevailed; (2) the claim or defense asserted by the opposing party was meritless; and (3) that claim or defense was asserted in bad faith." Chipman v. Miller, 934 P.2d 1158, 1161 (Utah Ct. App. 1997). "With regard to each of these elements, the trial court must make specific findings." Id. "Absent specific findings, the basis of the award cannot be determined." Id.

We dismiss the appeal for lack of jurisdiction insofar as it is taken from the February 2, 2004 order of dismissal; however, we conclude that we have jurisdiction to review the attorney fees award based upon a timely notice of appeal. We reverse the attorneys fee award and remand for proceedings consistent with this opinion, as necessary to determine the request for attorney fees and to enter findings of fact in support of the district court's ruling. We deny the request for attorney fees incurred on this appeal under rule 33 of the Utah Rules of Appellate Procedure.

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James Z. Davis, Judge

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Norman H. Jackson, Judge

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Gregory K. Orme, Judge