Sonntag v. Ward

Sonntag v. Ward

IN THE UTAH COURT OF APPEALS
 

----ooOoo----

Gloria Sonntag, Joanne Tinsley, Bernadine Hiser, and Karen Bacon,

Plaintiffs and Appellees,

v.

William A. Ward,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040578-CA
 

F I L E D
(October 21, 2004)
 

2004 UT App 368

 

-----

Second District, Ogden Department

The Honorable W. Brent West

Attorneys: William A. Ward, Ogden, Appellant Pro Se

Douglas A. Taggart and E. Troy Blanchard, Ogden, for Appellees

-----

Before Judges Bench, Davis, and Orme.

PER CURIAM:

    William A. Ward appeals the decision of the trial court granting Appellees Gloria Sonntag, Joanne Tinsley, Bernadine Hiser, and Karen Bacon's (collectively Beneficiaries) motion for summary judgment. This case is before the court on its own motion for summary disposition.

    The trial court entered a written decision regarding Beneficiaries' motion for summary judgment on April 15, 2004. On April 29, 2004, Ward filed a "Petition to Reconsider Decision Rendered 16 April 2004 and Motion to Dismiss for Lack of Jurisdiction" (Petition to Reconsider). The trial court did not rule on the Petition to Reconsider. Instead, on May 28, 2004, the trial court issued an Order and Judgment, outlining specific terms for Ward to follow as a result of the grant of summary judgment.

    An appeal may be taken from all final district court orders and judgments. See Utah R. App. P. 3(a). Absent a final order, the appellate court lacks jurisdiction and must dismiss the appeal. See Kurth v. Wiarda, 1999 UT App 153,¶5, 981 P.2d 417. The finality of an order or judgment may be affected by certain post-trial motions. See id. Specifically, under Utah Rule of Appellate Procedure 4(b), a timely motion for a new trial filed under Utah Rule of Civil Procedure 59 "suspends the finality of the challenged judgment rendering a notice of appeal filed prior to disposition of such a motion by entry of a signed order [ineffective] to confer jurisdiction on an appellate court." Kurth, 1999 UT App 153 at ¶5 (quotations and citation omitted). To vest jurisdiction in the appellate court, "the notice of appeal must be filed after entry of the order disposing of such motions." Id.

    We construe the Petition to Reconsider in this case as a motion for new trial. See Watkiss & Campbell v. Foa & Son, 808 P.2d 1061 (Utah 1991) (stating that "exception to order and motion for reconsideration" was properly treated as motion for new trial). The trial court docket specifically notes, on June 4, 2004, that the Petition to Reconsider was not ripe for decision due to the failure to file a notice to submit. Ward's Petition to Reconsider therefore remains pending and suspends the appeal period until "entry of the order denying" it. Utah R. App. P. 4.

    When this court lacks jurisdiction it must dismiss the appeal. See Loffredo v. Holt, 2001 UT 97,¶11, 37 P.3d 1070. Accordingly, Ward's appeal is dismissed without prejudice to the timely filing of a notice of appeal from a final judgment or order entered by the district court.

______________________________

Russell W. Bench,

Associate Presiding Judge

______________________________

James Z. Davis, Judge

______________________________

Gregory K. Orme, Judge