Young v. Young

Young v. Young

IN THE UTAH COURT OF APPEALS
 

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Jacqueline Young,

Plaintiff and Appellant,

v.

Cless Trenton Young,

Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040574-CA
 

F I L E D
(November 18, 2004)
 

2004 UT App 431

 

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Sixth District, Manti Department

The Honorable Paul D. Lyman

Attorneys: Randy S. Kester, Provo, for Appellant

Joshua K. Faulkner, Provo, for Appellee

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Before Judges Billings, Bench, and Orme.

PER CURIAM:

    Appellant Jacqueline Young (Wife) seeks to appeal the Findings of Fact, Conclusions of Law, and Order Dismissing Petition to Modify entered on June 4, 2004. This case is before the court on a sua sponte motion for summary dismissal because the appeal was filed before entry of an order disposing of a timely motion to amend the findings. See Utah R. App. P. 4(b) (stating that if a timely motion to amend or make additional findings of fact is filed, the time for appeal for all parties shall run from the entry of the order granting or denying the motion and a notice of appeal filed before disposition of the motion is of no effect).

    After the district court's oral ruling and the preparation of proposed findings of fact and conclusions of law, Wife filed a document entitled "Objection to and Motion to Alter or Amend the Findings of Fact, Conclusions of Law, and Order." On June 4, 2004, the district court entered the findings, conclusions, and order as proposed without ruling on the motion to amend. On June 7, 2004, counsel for Appellee Cless Trenton Young (Husband) filed a response to the motion to amend. The response conceded one drafting error, but opposed the remaining requests, which sought amendment of the findings as read into the record by the court and incorporated in the written findings of fact entered by the court. The motion is substantively a motion under rule 52(b) of the Utah Rules of Civil Procedure and operates to toll the appeal time until resolved. See Utah R. App. P. 4(b).

    Rather than filing a response to the sua sponte motion, counsel for both parties filed a stipulation stating, in relevant part, that they agreed that the trial court's signing of the order "constituted a denial of Plaintiff's Motion to Alter or Amend and are willing to accept that as a specific denial of Plaintiff's Motion and allow the appeal to proceed as filed." On that basis, they seek an order from this court stating that the court also accepts the June 4, 2004, order as a denial of the motion to alter or amend the findings.

    The approach urged by the parties is contrary to well-settled case law governing appellate jurisdiction. "[A] motion under the Utah Rules of Civil Procedure of the type described in rule 4(b) that is filed prior to the entry of the judgment is timely for purposes of tolling the appeal period." Kurth v. Wiarda, 1999 UT App 153,¶6, 981 P.2d 417 (per curiam). "The mere entry of a final judgment inconsistent with but silent regarding a post-trial pre-judgment motion does not dispose of the motion by necessary implication unless the surrounding circumstances indicate that the trial court considered and rejected the motion." Id. at ¶7; see also Regan v. Blount, 1999 UT App 154, ¶7, 978 P.2d 1015 (per curiam). Finally, "acquiescence of the parties is insufficient to confer jurisdiction and . . . a lack of jurisdiction can be raised at any time by either party or by the court." Olson v. Salt Lake City Sch. Dist., 724 P.2d 960, 964 (Utah 1986).

    Wife's motion to amend was not disposed of by necessary implication by the findings, conclusions, and order entered on June 4, 2004, and there is no indication that the district court considered the motion prior to signing the order. The parties' agreement to the contrary is of no effect.

    "If an appeal is not timely filed, this court lacks jurisdiction to hear the appeal." Serrato v. Utah Transit Auth., 2000 UT App 299,¶7, 13 P.3d 616. The notice of appeal filed before entry of an order denying the motion to amend was ineffective, and we are without jurisdiction over the appeal. Having concluded that we lack jurisdiction, we retain "only the authority to dismiss the action." Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1998).

    Accordingly, we dismiss the appeal for lack of jurisdiction, without prejudice to a new timely notice of appeal filed after the entry of an order denying the motion to amend.

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Judith M. Billings,

Presiding Judge

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Russell W. Bench,

Associate Presiding Judge

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Gregory K. Orme, Judge