Luke v. Luke

Luke v. Luke

IN THE UTAH COURT OF APPEALS
 

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Melody S. Luke,

Plaintiff and Appellee,

v.

Frederick G. Luke, an individual; Redko International, N.V., a Netherlands Antilles Corporation; Shan Womack, an individual; and John Does 1-10,

Defendants and Appellants.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20041113-CA
 

F I L E D
(March 17, 2005)
 

2005 UT App 123

 

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Third District, Salt Lake Department

The Honorable Frank G. Noel

Attorneys: Steven B. Smith, Salt Lake City, for Appellant Redko

Mark O. Morris, Wade R. Budge, and Stewart O. Peay, Salt Lake City, for Appellee

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Before Judges Davis, Jackson, and Thorne.

PER CURIAM:

    This case is before the court on its own motion for summary dismissal for lack of jurisdiction. See Utah R. App. P. 10. The issue is whether the certification, entered pursuant to rule 54(b) of the Utah Rules of Civil Procedure, is defective, thereby divesting this court of jurisdiction to consider the nonfinal order. Appellee Melody S. Luke filed a response to this court's motion. Neither Appellants Frederick G. Luke, nor Redko International (Redko) filed a response.

    The order certified by the trial court as final resolved Melody Luke's tenth of eleven causes of action. The remaining causes are pending. The certified order granted partial summary judgment in favor of Melody Luke and ordered judicial foreclosure on property in Melody Luke's name on which she contended Redko was obligated to make payments, but Redko had defaulted. In ruling in Melody Luke's favor, the trial court concluded that Redko's filing of a lis pendens did not relieve it of its obligation to make payments. The property was sold at a sheriff's auction to Melody Luke.

    There are three requirements for certification based on rule 54(b): (1) there must be multiple claims for relief or multiple parties; (2) the order must be one that would otherwise have been appealable, but for the fact that there are claims or parties remaining in the trial court; and(3) the trial court must make an express determination that there is no just reason for delay. See Utah R. Civ. P. 54(b). The trial court is obligated to provide at least some reasoning for the findings regarding these three criteria. See Bennion v. Pennzoil Co., 826 P.2d 137, 139 (Utah 1992). This is necessary in order for the appellate court to review the decision to certify under an abuse of discretion standard. See id.

    In the certification order in the instant appeal, the trial court set forth no findings supporting the conclusion that there is no factual overlap between the certified and remaining claims, nor has the court explained the lack of factual overlap at all. See id. Further, the trial court has advanced no rationale as to why there is no just reason for delay. See id. The order states that the decision completely resolves one of the eleven claims, but does not otherwise elaborate.

    As a result of these procedural deficiencies, the certification order is inadequate and this court lacks jurisdiction. See Beckstrom Family Ltd. P'ship v. Hall, 751 P.2d 1157, 1159 (Utah Ct. App. 1988). Once the court determines that is lacks jurisdiction, "it retains only the authority to dismiss the action." See Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989).

    Accordingly, the appeal is dismissed without prejudice to the timely filing of a notice of appeal from a final order, or a properly certified order pursuant to rule 54(b) of the Utah Rules of Civil Procedure.

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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