Burleigh v. Friel, Warden

Burleigh v. Friel, Warden

IN THE UTAH COURT OF APPEALS
 

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Tom Burleigh,

Petitioner and Appellant,

v.

Clint Friel, Warden; et al.,

Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20041115-CA
 

F I L E D
(April 28, 2005)
 

2005 UT App 190

 

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Third District, Salt Lake Department

The Honorable Leon A. Dever

Attorneys: Tom Burleigh, Draper, Appellant Pro Se

Mark L. Shurtleff and Natalie A. Wintch, Salt Lake City, for Appellee

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Before Judges Billings, Bench, and Jackson.

PER CURIAM:

    This appeal is before the court on a sua sponte motion for summary disposition. After both parties had filed their responses to the sua sponte motion, Appellant Tom Burleigh advised the court that he had not received a decision disposing of his motion for rehearing filed pursuant to rule 59 of the Utah Rules of Civil Procedure; therefore, his notice of appeal was premature.

    The record reflects that the district court announced its decision granting Appellee Clint Friel's motion for summary judgment in a minute entry dated October 26, 2004, which directed counsel for Friel to draft an appropriate order "outlining the issues and the legal conclusions to be drawn from statutes and case law." On November 15, 2004, Burleigh filed a "motion for rehearing" invoking rule 59 and challenging both the merits and the summary judgment procedure. On November 17, 2004, the district court entered its "Findings of Fact, Conclusions of Law, and Order of the Court," which did not refer to, nor dispose of, the pending motion seeking a rehearing under rule 59.

    This case falls squarely under rule 4(b) of the Utah Rules of Appellate Procedure and must be dismissed for lack of jurisdiction. A timely motion for new trial made under rule 59 suspends the running of the appeal time, and "the time for appeal for all parties shall run from the entry of the order denying a new trial." Utah R. App. P. 4(b). "A notice of appeal filed before the disposition of [the motion] shall have no effect" and "[a] new notice of appeal must be filed within the prescribed time measured from the entry of the order of the trial court disposing of the motion." Id. The motion for new trial in this case was filed after the announcement of the court's decision, but before the entry of a signed final order. The motion was timely under rule 59 of the Utah Rules of Civil Procedure and suspended the time for appeal. See Hudema v. Carpenter, 1999 UT App 290,¶18-19, 989 P.2d 491 (holding that motion for new trial under rule 59 filed prior to entry of signed judgment is timely and tolls appeal time). The notice of appeal did not invoke the jurisdiction of this court, and Burleigh must file a new notice of appeal after entry of the signed order denying his motion for rehearing or new trial.

    Although Friel argues that this court should deny Burleigh's request for dismissal of his appeal without prejudice on grounds of judicial economy, we cannot disregard the jurisdictional defect in 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. 1989).

    We dismiss the appeal for lack of jurisdiction, without prejudice to filing a new notice of appeal following entry of a decision on the pending motion for rehearing.

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Judith M. Billings,

Presiding Judge

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Russell W. Bench,

Associate Presiding Judge

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Norman H. Jackson, Judge