Opinion
Case No. 20020324-CA.
Filed September 6, 2002. (Not For Official Publication)
Appeal from the First District, Brigham City Department, The Honorable Ben H. Hadfield.
Richard M. Jensen, Brigham City, Appellant.
Bryce M. Froerer, Ogden, for Appellees.
Before Judges Jackson, Greenwood, and Orme.
MEMORANDUM DECISION
This case is before the court on a sua sponte motion for summary dismissal for lack of jurisdiction. We limit the appeal to the order denying a motion to compel arbitration, and dismiss the remainder of the appeal, without prejudice, for lack of jurisdiction.
The district court entered an order on March 12, 2002, which incorporated rulings made in Memorandum Decisions dated September 26, 2001, December 19, 2001, and February 12, 2002. The order stated, in relevant part, that "the Court's decision regarding Defendant Richard M. Jensen's Motion to Arbitrate will remain in effect; i.e., the right to arbitrate has been waived and his default is entered." Also on March 12, 2002, the district court entered a default judgment as to Richard M. Jensen only, ordering him "to pay Plaintiffs' damages in an amount to be determined at hearing." No judgment specifying damages has been entered.
Jensen asserts that the default judgment is final because the district court denied his motion to reconsider. Alternatively, he contends that the default judgment was certified as final for purposes of appeal under rule 54(b) of the Utah Rules of Civil Procedure. Both claims are without merit. The default judgment contemplated further proceedings to determine damages; accordingly, it is not final and appealable. Rule 54(b) allows certification "only upon an express determination by the court that there is no just reason for delay and upon an express direction for the entry of judgment." Utah R. Civ. P. 54(b). The rule further provides that "[i]n the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties." Id. Although Jensen filed a motion to "reconsider" the court's interlocutory rulings under rule 54(b), nowhere in that motion did he seek certification of any order as final for purposes of appeal. Thus, he neither sought, nor obtained, an order certifying the default judgment as final, although he now contends that the court's mere denial of the motion to reconsider renders the order final and appealable. Finally, we note that the default judgment, which clearly contemplates a further hearing and judgment, would not have been eligible for certification because it did not finally resolve the claims against Jensen.
Jensen next claims that a timely appeal was taken from an order denying a motion to compel arbitration. An "appeal may be taken . . . from any court order: (1) denying a motion to compel arbitration." Utah Code Ann. § 78-31a-19(1) (1996). "The plain meaning of this provision is that a party may seek review of any such order regardless of whether the order is a final judgment or has otherwise been designated as final by the district court under rule 54(b)." Pledger v. Gillespie, 1999 UT 54,¶ 17, 982 P.2d 572. In a December 19, 2001, Memorandum Decision, the district court concluded Jensen waived any right to arbitration and directed Appellees' counsel to prepare a further order. The decision was not final and appealable because it contemplated execution of a further order. See Swenson Assoc. Architects v. State, 889 P.2d 415, 417 (Utah 1994) (holding decision directing preparation of further order not final and appealable). Accordingly, the time for appeal commenced with entry of the March 12, 2002 order incorporating denial of the Motion to Arbitrate. The remainder of the appeal, including any issues pertaining to the default judgment, is not taken from a final order and is not within the scope of our appellate jurisdiction at this time.
We agree with Jensen that judicial economy would be served by allowing this appeal to proceed to decision before further proceedings are undertaken in the trial court. Utah Code Ann. § 78-31a-19(1) (1996) contemplates that an immediate appeal of right may be taken from any decision denying a motion to compel arbitration. See Pledger v. Gillespie, 1999 UT 54,¶ 17, 982 P.2d 572. Unfortunately, the delay in entry of an appealable order allowed this case to proceed to a default judgment before an appeal was filed from the order denying arbitration.
We therefore dismiss the appeal insofar as it raises issues not within the scope of appellate jurisdiction under Utah Code Ann. § 78-31a-19(1), and allow the appeal to continue only insofar as it challenges the denial of the Motion to Arbitrate.
Norman H. Jackson, Presiding Judge, Pamela T. Greenwood, Judge, and Gregory K. Orme, Judge, concur.