Opinion
Case No. 20041098-CA.
Filed February 17, 2005. (Not For Official Publication).
Appeal from the Fifth District, St. George Department, The Honorable G. Rand Beacham.
Justin D. Heideman and Justin R. Elswick, Provo, for Appellants.
Bryan J. Pattison and Jeffrey N. Starkey, St. George, for Appellees.
Before Judges Greenwood, Jackson, and Thorne.
MEMORANDUM DECISION
Kent A. Heideman, Kimball B. Gardner, and Birdview MFG, Inc. (collectively Heideman) appeal from a summary judgment in favor of Washington City, Inc. (Washington City). Heideman filed a timely "Motion to Reconsider Final Judgment on Defendants' Motion for Summary Judgment and Defendants' Motion to Strike" (motion to reconsider), purportedly pursuant to rules 52 and 59 of the Utah Rules of Civil Procedure. Before the district court could rule on the motion to reconsider, Heideman filed this appeal.
Washington City has moved to dismiss the appeal, asserting that this court is without jurisdiction due to the absence of a final appealable order under Utah Rules of Appellate Procedure 3(a) and 4(b). See Utah R. App. P. 3(a), 4(b).
An appeal may be taken from "final orders or judgments." Utah R. App. P. 3(a). Absent a final order, the appellate court lacks jurisdiction and must dismiss the appeal. See Regan v. Blount, 1999 UT App 154, ¶ 4, 978 P.2d 1051. The finality of an order or judgment may be affected by certain post-trial motions. For instance, if a party makes a timely motion for new trial under Utah Rule of Civil Procedure 59, the thirty-day period "runs from the entry of the order denying a new trial." Utah R. App. P. 4(b); see also Hudema v. Carpenter, 1999 UT App 290, ¶ 15, 989 P.2d 491. Similarly, a timely motion to alter or amend the verdict under Utah Rule of Civil Procedure 52(b) suspends the finality of the challenged order or judgment. See Utah R. App. P. 4(b). "To vest jurisdiction in the appellate court, the notice of appeal must be filed after entry of the order disposing of such motions." Regan, 1999 UT App 154 at ¶ 4.
Heideman's motion to reconsider is purportedly filed under Utah Rules of Civil Procedure 52 and 59. Pursuant to Utah Rule of Appellate Procedure 4(b), a notice of appeal filed before the disposition of such a motion "shall have no effect." Utah R. App. P. 4(b). Instead, "[a] new notice of appeal must be filed within the prescribed time measured from the entry of the order of the trial court disposing of the motion." Id. Heideman's notice of appeal was filed before the district court disposed of Heideman's post-judgment motion and was therefore premature. See Kay v. Summit Sys., 924 P.2d 338, 338 (Utah 1996).
Because this appeal is not taken from a final order, we have no alternative but to dismiss the appeal for lack of jurisdiction.See Regan, 1999 UT App 154 at ¶ 9. This dismissal is without prejudice to the filing of a timely notice of appeal after the entry of a final order.
Pamela T. Greenwood, Judge, Norman H. Jackson, Judge and William A. Thorne Jr., Judge.