Wierzbicki v. Heart

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IN THE UTAH COURT OF APPEALS ----ooOoo---Michele Wierzbicki, Plaintiff and Appellee, v. Andrea Heart, Defendant and Appellant. ) ) ) ) ) ) ) ) ) MEMORANDUM DECISION (Not For Official Publication) Case No. 20100319-CA F I L E D (June 4, 2010) 2010 UT App 146 ----Third District, West Jordan Department, 090420028 The Honorable Terry L. Christiansen Attorneys: Andrea Heart, West Jordan, Appellant Pro Se James A. McIntyre and Sarah E. Viola, Salt Lake City, for Appellee ----- Before Judges McHugh, Thorne, and Voros. PER CURIAM: Andrea Heart appeals the district court's order entered on April 1, 2010. This matter is before the court on a motion for summary disposition. We dismiss the appeal without prejudice. Generally, "[a]n appeal is improper if it is taken from an order or judgment that is not final." Bradbury v. Valencia, 2000 UT 50, ¶ 9, 5 P.3d 649. Indeed, this court lacks jurisdiction to consider an appeal unless it is taken from a final, appealable order. See id. ¶ 8. For an order to be a final, appealable order, the order must "dispose of all parties or claims to an action." Id. ¶ 10. Where further action is contemplated by the express language of the order, the order is not a final, appealable order. See State v. Leatherbury, 2003 UT 2, ¶ 9, 65 P.3d 1180. The district court must also determine the amount of reasonable attorney fees, if any, before the judgment becomes final for the purposes of an appeal. See Promax Dev. Corp. v. Raile, 2000 UT 4, ¶ 15, 998 P.2d 254. The district court's April 1, 2010 order expressly contemplates a further order of the court regarding the proceeds derived from the sale of the parties' real property. The order also fails to resolve the remaining issue of attorney fees. Thus, the April 1, 2010 order is not a final order for purposes of appeal. See id. Accordingly, the appeal is dismissed without prejudice to the filing of a timely appeal from a final order. ______________________________ Carolyn B. McHugh, Associate Presiding Judge ______________________________ William A. Thorne Jr., Judge ______________________________ J. Frederic Voros Jr., Judge 20100319-CA 2

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