Whaley v. Park City

Whaley v. Park City

IN THE UTAH COURT OF APPEALS
 

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Ronald R. Whaley and Melanie A. Reif,

Plaintiffs and Appellants,

v.

Park City Municipal Corporation; Randy Barton dba The Wooden Dog and Mountain Town Stages; Park City Arts Council, a nonprofit corporation; and
Mountain Town Stages, a nonprofit corporation,

Defendants and Appellees.

MEMORANDUM DECISION

(Not For Official Publication)

Case No. 20040395-CA
 

F I L E D
(September 10, 2004)
 

2004 UT App 304

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Third District, Silver Summit Department

The Honorable Robert K. Hilder

Attorneys: Russell A. Cline, Salt Lake City, for Appellants

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Before Judges Bench, Davis, and Jackson.

PER CURIAM:

    This case is before the court on Appellants' motion for summary disposition, which seeks dismissal of their appeal for lack of jurisdiction and a remand with instructions to address Appellants' motion for certification or for clarification of the court's rulings.

    Appellants contend that this court lacks jurisdiction because either the district court has not disposed of the fourth cause of action alleging "continuing, threatened or anticipatory nuisance" and no final judgment has entered, or the district court did not properly certify this case for appeal under rule 54(b) of the Utah Rules of Civil Procedure. Both arguments presume that no final judgment has been entered disposing of the fourth cause of action. This issue was disputed in the district court, where Appellees claimed that a final judgment was entered by the August 7, 2002 Ruling and Order on Appellees' motions for summary judgment, combined with the October 18, 2003 Order disposing of the remaining claim against Appellee Randy Barton. However, Appellants claimed that the district court has not disposed of their fourth cause of action. In a Minute Entry and Order dated January 19, 2004, the district court stated:

[I]t is not clear whether the court previously ruled upon plaintiff's Fourth Cause of Action. If the claim is deemed dismissed along with the other claims, no certification is needed, but if it is not dismissed, the court agrees that this apparently prospective claim does not affect the final nature of the court's ruling as to all other claims, and the court specifically states [that] the dismissal orders entered to this date are not subject to revision. Plaintiffs may prepare an appropriate certification order.

    However, in a Minute Entry and Order dated March 29, 2004, the district court declined to sign the proposed certification order submitted by Appellants as exceeding the scope of the court's invitation, stating that the court would "sign no further orders unless the appellate court to which this matter is assigned remands the matter as to the Fourth Cause of Action for any reason."

    Under either scenario stated by the district court in its January 19, 2004 order, we lack jurisdiction over this appeal. If the October 18, 2003 Order disposed of all remaining claims in the case and constituted a final judgment in conjunction with the August 7, 2002 Ruling and Order, we lack jurisdiction over this appeal because the notice of appeal was not timely filed within thirty days after entry of the October 18, 2003 Order. See Utah R. App. P. 4(a). In the alternative, if the district court has not disposed of the fourth cause of action, we lack jurisdiction because the remaining claims have not been properly certified under rule 54(b).

    Rule 54(b) allows the trial court to "direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination by the court that there is no just reason for delay and upon an express direction for the entry of judgment." Utah R. Civ. P. 54(b) (emphasis added). "In the absence of such determination and direction, any order or other form of decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties." Id. In addition, an order certifying a judgment as final under rule 54(b) must include "findings supporting the conclusion that such orders are final," by explaining "the lack of factual overlap between the certified and remaining claims." Bennion v. Pennzoil Co., 826 P.2d 137, 139 (Utah 1992). Finally, an order certifying a judgment as final for purposes of appeal must contain a brief explanation of the trial court's "rationale as to why there is no just reason for delay." Id. No certification order satisfying the requirements of rule 54(b) and Bennion was entered in this case. See Backstrom Family Ltd. P'ship v. Hall, 751 P.2d 1157, 1159 (Utah Ct. App. 1988) (concluding failure to comply with procedural requirements resulted in order not being properly certified). In addition, the district court conceded that it is not clear whether the fourth cause of action was dismissed by the August 7, 2002 Ruling and Order.

    In their motion, Appellants effectively urge this court to rule that no final judgment has been entered on the fourth cause of action and direct the district court to consider their motion for certification on remand. Having determined that we lack jurisdiction over this appeal, "we retain only the authority to dismiss the action." Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989). Accordingly, we cannot resolve issues regarding whether the summary judgments disposed of the fourth cause of action. The scope and intent of the judgments must be determined by the trial court. Although we agree that there has been no proper certification under rule 54(b), we do not now reach the question of whether certification would be appropriate under the facts of this case.

    We dismiss the appeal for lack of jurisdiction because it would be untimely if the October 18, 2004 Order was the final judgment, and if not, there has been no proper certification of the judgment as final for purposes of appeal.

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Russell W. Bench,

Associate Presiding Judge

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James Z. Davis, Judge

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Norman H. Jackson, Judge