Caldwell v. Friel

Caldwell v. Friel

IN THE UTAH COURT OF APPEALS
 

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Johnny Ray Caldwell,

Petitioner and Appellant,

v.

Clint Friel,

Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20050095-CA
 

F I L E D
(April 14, 2005)
 

2005 UT App 177

 

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Third District, Salt Lake Department

The Honorable Timothy R. Hanson

Attorneys: Johnny Ray Caldwell, 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:

    Johnny Ray Caldwell seeks to appeal from a judgment on his petition for extraordinary relief. This case is before the court on a sua sponte motion for summary disposition on the basis that no final, appealable judgment has been entered in the district court determining the petition.

    "This court does not have jurisdiction over an appeal unless it is taken from a final judgment, Utah R. App. P. 3(a), or qualifies for an exception to the final judgment rule." Loffredo v. Holt, 2001 UT 97,¶10, 37 P.3d 1070. "For a judgment or order to be final, it 'must dispose of the case as to all the parties and finally dispose of the subject-matter of the litigation on the merits of the case.'" In re Southern Am. Ins. Co., 930 P.2d 276, 278 (Utah Ct. App. 1996) (citation omitted). "Where the final judgment rule is not satisfied, the proper remedy for this court is dismissal." Loffredo, 2001 UT 97 at ¶11.

    Caldwell filed his petition for extraordinary relief in October of 2003. After receipt of Caldwell's filing fee, the district court required Clint Friel (Friel) to answer. On January 14, 2005, Friel filed a motion for summary judgment, a memorandum in support of the motion, and a supporting affidavit. The district court denied Caldwell's request for appointment of counsel in a minute entry order entered on January 28, 2005. On January 31, 2005, Caldwell filed a notice of appeal challenging the memorandum filed in support of summary judgment. On February 2, 2005, Caldwell filed a second notice of appeal, which claims to be taken from a final judgment. As a result of this appeal, the district court has not determined the motion for summary judgment that has been submitted for decision.

    A memorandum filed by a party is clearly not a judgment in any sense and cannot be appealed. Therefore, the original notice of appeal filed by Caldwell is not taken from a final, appealable order and does not invoke the jurisdiction of this court. The second notice of appeal states that it was taken from a final, judgment entered on January 20, 2005; however, no final judgment has been entered in this case, and the petition remains pending before the district court. Even if the notice of appeal were construed as taken from the order denying a request for appointment of counsel, the order also was not a final, appealable judgment and permission to appeal from that interlocutory order was not sought by Caldwell, and has not been granted by this court, pursuant to rule 5 of the Utah Rules of Appellate Procedure.

    We dismiss the appeal for lack of jurisdiction because it is not taken from a final, appealable judgment. Our dismissal is without prejudice to a timely notice of appeal filed after entry of the final judgment on the petition for extraordinary relief.

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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