Cobon Energy v. AGTC

Cobon Energy v. AGTC

IN THE UTAH COURT OF APPEALS
 

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Cobon Energy, LLC,

Plaintiff and Cross-appellant,

v.

AGTC, Inc.; Alpine Coal Co, Inc.; and Richard G. Visovsky,

Defendants and Cross-appellees.

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AGTC, Inc. and Alpine Coal Co., Inc.,

Counterclaim Plaintiffs and Appellants,

v.

Cobon Energy, LLC,

Counterclaim Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040986-CA
 

F I L E D
(January 27, 2005)
 

2005 UT App 29

 

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Third District, Salt Lake Department

The Honorable J. Dennis Frederick

Attorneys: E. Scott Savage and Stephen R. Waldron, Salt Lake City, for Appellants and Cross-appellees

Evan A. Schmutz and Curtis R. Hussey, Provo, for Appellee and Cross-appellant

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Before Judges Billings, Greenwood, and Thorne.

PER CURIAM:

    AGTC, Inc. and Alpine Coal Co., Inc. (collectively AGTC) appeal from the dismissal of their counterclaim against Cobon Energy, LLC (Cobon) as a sanction under rule 37 of the Utah Rules of Civil Procedure. Cobon cross-appeals from the trial court's grant of summary judgment in favor of AGTC. This is before the court on its own motion for summary disposition based on lack of jurisdiction due to the absence of a final order.

    In June 2004, the trial court granted AGTC's motion for summary judgment in an unsigned minute entry. AGTC was directed to prepare the final order regarding summary judgment. AGTC submitted a proposed order to which Cobon objected. It is undisputed that the trial court has never entered a final order disposing of the summary judgment motion and objections.

    Appeals may be taken only from final orders or judgments. See Utah R. App. P. 3(a). It is well settled that an unsigned minute entry does not constitute an entry of judgment, nor is it final for purposes of appeal. See Ron Shepard Ins. Inc. v. Shields, 882 P.2d 650, 653 (Utah 1994). The trial court's grant of summary judgment by an unsigned minute entry is thus not a final order or judgment from which an appeal may be taken. See id.

    AGTC argues that there is no issue remaining before the trial court after the entry of the November order dismissing its counterclaim, and thus, the case is final for appeal. However, although the trial court dismissed AGTC's counterclaim in a final order, the summary judgment technically remains pending before the court. Because the trial court "never signed an order granting [AGTC's] motion for summary judgment nor entered judgment thereon, there is not a final order or judgment" regarding the summary judgment motion. Id. "It is settled law that a trial court is free to reassess its decision at any point prior to entry of a final order or judgment." Id. at 654. Therefore, with no final order regarding summary judgment, the matter remains pending. See id. Moreover, the lack of a final order on summary judgment is not a mere technicality in this case. A proposed order and objections are before the trial court. The scope of the summary judgment is disputed, clearly presenting an outstanding issue for resolution.

    With no final order on summary judgment, the case remains pending and unripe for appeal. Where an appeal is not properly taken, this court lacks jurisdiction and must dismiss the appeal. See Bradbury v. Valencia, 2000 UT 50,¶8, 5 P.3d 649.

    Accordingly, this appeal is dismissed without prejudice to the timely filing of a notice of appeal after the entry of a final order.

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Judith M. Billings,

Presiding Judge

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Pamela T. Greenwood, Judge

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William A. Thorne Jr., Judge