Comm. Refrig. v. Delta Wstrn

Comm. Refrig. v. Delta Wstrn

IN THE UTAH COURT OF APPEALS
 

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Commercial Refrigeration, Inc.,

Plaintiff,

v.

Delta Western, LLC, et al.,

Defendants,

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Commercial Refrigeration, Inc.,

Cross-claim Plaintiff and Appellant,

v.

Tom Strebel and DLJ Engineers, Inc.,

Cross-claim Defendants and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040960-CA
 

F I L E D
(January 6, 2005)
 

2005 UT App 3

 

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Third District, Silver Summit Department

The Honorable Bruce Lubeck

Attorneys: Wesley F. Sine, Salt Lake City, for Appellant

Barry N. Johnson and Ryan B. Braithwaite, Salt Lake City, for Appellee

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Before Judges Billings, Bench, and Greenwood.

PER CURIAM:

    Commercial Refrigeration, Inc. (Commercial) appeals from the trial court's order granting Tom Strebel's motion to dismiss. This is before the court on its own motion for summary disposition based on lack of jurisdiction due to an untimely notice of appeal.

    Commercial asserts that its appeal is timely because the final order disposing of all the parties in this case was not entered until December 10, 2004. However, the trial court granted DLJ Engineers's (DLJ) motion to dismiss in August 2003, disposing of DLJ as a party. In August 2004, the trial court granted Strebel's motion to dismiss, the subject of the current appeal. Finally, on October 1, 2004, the trial court entered an order dismissing Commercial's claims against Delta Western (Delta), and likewise dismissing Delta's claims against Commercial. Thus, as of October 1, 2004, no parties or claims remained before the trial court and the order was final for purposes of appeal. The subsequent stipulated dismissal of DLJ as a party was unnecessary and had no legal effect.

    Commercial filed its notice of appeal on November 5, 2004. Pursuant to rule 4 of the Utah Rules of Appellate Procedure, notices of appeal must be filed within thirty days of the final order or judgment. See Utah R. App. P. 4(a). The time frame is jurisdictional. If an appeal is not timely filed, this court has no jurisdiction to consider the appeal. See Serrato v. Utah Transit Auth., 2000 UT App 299,¶7, 13 P.3d 616. Commercial's notice of appeal was filed more than thirty days after the final order of the trial court, thus depriving this court of jurisdiction. Where this court lacks jurisdiction over an appeal, it retains only the authority to dismiss it. See Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989). Accordingly, this appeal is dismissed.

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Judith M. Billings,

Presiding Judge

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Russell W. Bench,

Associate Presiding Judge

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Pamela T. Greenwood, Judge