C.Y. v. State (In re M.Y.)

C.Y. v. State (In re M.Y.)

IN THE UTAH COURT OF APPEALS

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State of Utah, in the interest of M.Y., a person under eighteen years of age.

______________________________

C.E.Y. and K.R.Y.,

Appellants,

v.

State of Utah,

Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20031052-CA
 

F I L E D
(April 1, 2004)
 

2004 UT App 88

 

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Fifth District Juvenile, St. George Department

The Honorable Thomas M. Higbee

Attorneys: Clyde Earl Young and Kathleen Rose Young, St. George, Appellants Pro Se

Mark L. Shurtleff, Carol L.C. Verdoia, and John M. Peterson, Salt Lake City, for Appellee

Martha Pierce, Salt Lake City, Guardian Ad Litem

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Before Judges Billings, Jackson, and Thorne.

PER CURIAM:

This case is before the court on its own motion for summary dismissal for lack of jurisdiction because of an untimely notice of appeal. See Utah R. App. P. 10. The final order, initially issued on December 4, 2003, indicated that if any party wanted the order to include additional findings, a request should be made to the court by a date certain. The State timely requested additional findings. The subsequent order issued on January 16, 2004. Appellant filed a motion for a new trial on January 5, 2004, timely from the January 16 final order including the additional findings. Appellant also filed several notices of appeal in the juvenile court on December 22, 2003; December 30, 2003; January 2, 2004; and January 5, 2004.

The motion for a new trial is still pending before the juvenile court. The timely filing of a motion for a new trial suspends the time for filing an appeal. See Utah R. App. P. 4(b). Consequently, the notices of appeal filed before the disposition of the motion for a new trial have no effect. See id.

Because the motion for a new trial is pending, the notices of appeal were premature and, therefore, untimely. As a result, this court lacks jurisdiction. Once a court has determined that it lacks jurisdiction, it "retains only the authority to dismiss the action." Varian-Eimac v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1998).

This appeal is dismissed without prejudice to the filing of a timely notice of appeal upon resolution of the pending motion for new trial.

Appellants filed a Motion for Reinstatement of Appeal after the responses to this court's motion were filed. At the time the motion was filed, the appeal had not been dismissed and, therefore, could not be reinstated. Because this court lacks jurisdiction, we have no jurisdiction to address the motion or to reinstate the appeal.

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Judith M. Billings,

Presiding Judge

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Norman H. Jackson, Judge

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William A. Thorne Jr., Judge