Holloway v. Clifford Johnson Excavations
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IN THE UTAH COURT OF APPEALS ----ooOoo---Steven E. Holloway, Plaintiff and Appellant, v. Clifford Johnson Excavations, and Clifford Johnson Sr., Defendants and Appellees. ) ) ) ) ) ) ) ) ) ) MEMORANDUM DECISION (Not For Official Publication) Case No. 20060355-CA F I L E D (July 7, 2006) 2006 UT App 281 ----Third District, Salt Lake Department, 058904001 The Honorable Joseph C. Fratto Attorneys: Steven E. Holloway, Draper, Appellant Pro Se Douglas G. Mortensen, Salt Lake City, for Appellees ----- Before Judges Greenwood, Davis, and Thorne. PER CURIAM: This case is before the court on a sua sponte motion to summarily dismiss an appeal for lack of jurisdiction because it appeared to have been taken from the judgment of the district court after a trial de novo in a small claims case. See Utah Code Ann. § 78-6-10(2) (Supp. 2005) ("The decision of the trial de novo may not be appealed unless the court rules on the constitutionality of a statute or ordinance."). Based upon a review of the record, we conclude that the district court heard the case as a small claims case, and the appeal should have been considered by the district court through a trial de novo. Plaintiff Steven Hollloway initiated a small claims action in the Third District Court. The district court docket notes that the small claims case was assigned to a district court judge because Holloway was incarcerated in the Utah State Prison. Although heard by a district court judge, the underlying proceeding was filed in the Small Claims Court and resulted in a Small Claims Judgment entered on March 31, 2006. Utah Code section 78-6-10(1) states: Either party may appeal the judgment in a small claims action to the district court of the county by filing a notice of appeal in the original trial court within 30 days of the notice of entry of the judgment. If the judgment in a small claims action is entered by a judge or judge pro tempore of the district court, the notice of appeal shall be filed with the district court. Utah Code Ann. § 78-6-10(1) (emphasis added). Jurisdiction over an appeal from a small claims judgment lies in the district court, whether the small claims judgment was entered by a district court judge or a judge pro tempore. See id. "The appeal is a trial de novo and shall be tried in accordance with the procedures of small claims actions, except a record of the trial shall be maintained." Id. § 78-6-10(2). The decision following the trial de novo "may not be appealed unless the [district] court rules on the constitutionality of a statute or ordinance." Id. The motion seeking to appeal the small claims judgment was incorrectly transmitted to this court as an appeal from a district court judgment. Because the motion to appeal was filed within the time for an appeal from the small claims judgment, we construe it as a timely appeal to the district court to obtain a trial de novo. We lack jurisdiction to consider an appeal taken directly from a small claims judgment prior to a trial de novo in district court. We dismiss the appeal for lack of jurisdiction and remand the case to the district court for further proceedings consistent with this decision. ______________________________ Pamela T. Greenwood, Associate Presiding Judge ______________________________ James Z. Davis, Judge ______________________________ William A. Thorne Jr., Judge 20060355-CA 2
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