Jensen v. Foote

Jensen v. Foote

IN THE UTAH COURT OF APPEALS
 

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Todd Jensen and Carmelle Jensen,

Plaintiffs and Appellees,

v.

Larry Foote,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040842-CA
 

F I L E D
(March 31, 2005)
 

2005 UT App 156

 

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Third District, Salt Lake Department

The Honorable Robert K. Hilder

Attorneys: Budge W. Call, Salt Lake City, for Appellant

Richard D. Burbidge, Stephen B. Mitchell, and Andrew J. Dymek, Salt Lake City, for Appellees

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Before Judges Davis, Jackson, and Thorne.

PER CURIAM:

    This appeal is before the court on its own motion for summary disposition based on an untimely notice of appeal. See Utah R. App. P. 10. Appellees Todd and Carmelle Jensen also claim the questions presented are so insubstantial as to not merit further consideration by the court. See Utah R. App. P. 10(a)(2)(A). The final judgment was entered, according to the parties, on March 10, 2004.

    After failing to appear at a hearing on June 2, 2004, Larry Foote filed a rule 60(b) motion to set aside the judgment. See Utah R. Civ. P. 60(b)(1),(6). On September 9, 2004, the district court denied the motion.(1) On September 27, 2004, Foote filed a notice of appeal purporting to appeal all interim orders.

    Foote appears to argue that his notice of appeal was timely filed because it was filed within thirty days of denial of the rule 60(b) motion. However, as the Jensens correctly point out, a motion pursuant to rule 60(b) of the Utah Rules of Civil Procedure is not a motion enumerated in rule 4(b) of the Utah Rules of Appellate Procedure, which tolls the time for filing a notice of appeal. As a result, Foote's notice of appeal was to be filed no later than thirty days from entry of the final judgment on March 10, 2004. Because the notice of appeal was not timely filed, this court lacks jurisdiction to consider the merits of the appeal of the final judgment. Once a court has determined that it lacks jurisdiction, it "retains only the authority to dismiss the action." Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989).

    Having determined that we lack jurisdiction over the appeal of the final judgment, we turn to whether this court has jurisdiction over the appeal of the denial of Foote's rule 60(b) motion. Foote is entitled to appeal the denial of his rule 60(b) motion apart from the appeal of the final judgment. See Franklin Covey Client Sales, Inc. v. Melvin, 2000 UT App 110,¶7, 2 P.3d 451.

    The Jensens argue that the rule 60(b) motion was filed untimely because the district court entered a default judgment on January 22, 2004. However, the Jensens concede that the final judgment, which includes a determination of damages, was entered on March 10, 2004. Therefore, the rule 60(b) motion, which must be filed within three months, was timely filed. See Utah R. Civ. P. 60(b).

    The Jensens also argue that the issues presented in the appeal of the denial of the rule 60(b) motion are so insubstantial as to not merit further consideration by this court. See Utah R. App. P. 10.

    This court reviews a denial of a rule 60(b) motion for abuse of discretion. See Franklin Covey Client Sales, Inc., 2000 UT App 110 at ¶8. The Jensens contend that Foote has not even "purported" to make a plausible claim of mistake, inadvertence, surprise, or excusable neglect. Foote supported his rule 60(b) motion with a memorandum filed in the district court, claiming he failed to receive several key documents and, therefore, the Jensens failed to comply with the discovery order. Foote argues that he misunderstood documents and was gone for period of time, but provides little, if any, support for his claims. Foote has not demonstrated that the district court judge abused its discretion in denying the motion. As a result, the issues regarding the appeal of the rule 60(b) order are insubstantial.

    This court lacks jurisdiction to consider the appeal of the final judgment because the notice of appeal was untimely. Further, this court affirms the district court's denial of Foote's rule 60(b) motion.

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James Z. Davis, Judge

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Norman H. Jackson, Judge

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William A. Thorne Jr., Judge

1. In its ruling on the rule 60(b) motion, the district court expressed reservations about whether Foote could bring the motion while in contempt of court for failing to appear.