Garver v. Rosenberg , 2015 UT 39 ( 2015 )


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  •                            AMENDED OPINION*
    This opinion is subject to revision before final
    Publication in the Pacific Reporter
    
    2015 UT 39
    IN THE
    SUPREME COURT OF THE STATE OF UTAH
    DAVID and KATHERYN GARVER,
    Appellants,
    v.
    THOMAS ROSENBERG, M.D., et. al.,
    Appellees.
    No. 20140197
    Filed February 24, 2015
    Third District, Salt Lake
    The Honorable Denise P. Lindberg
    No. 070901824
    Attorneys:
    Clark Newhall, Salt Lake City, for appellants
    Elliott J. Williams, Carolyn Stevens Jensen, Jesse A. Frederick,
    Salt Lake City, for appellees
    CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
    ASSOCIATE CHIEF JUSTICE NEHRING, JUSTICE DURHAM,
    JUSTICE PARRISH, and JUSTICE LEE joined.
    CHIEF JUSTICE DURRANT, opinion of the Court:
    Introduction
    ¶1 This matter comes before the court on an appeal following
    the district court’s entry of an order purporting to reissue a
    judgment pursuant to rule 60(b) of the Utah Rules of Civil
    Procedure. We conclude that the district court erred in reissuing the
    judgment and that we lack jurisdiction to address the underlying
    merits of the appeal.
    * The court has rewritten paragraphs 2, 3, and 14.
    GARVER v. ROSENBERG
    Opinion of the Court
    Background
    ¶2 David and Katheryn Garver filed a medical malpractice
    action against Dr. Thomas Rosenberg and several other medical
    providers. The claims brought by David Garver were referred to
    arbitration. The claims brought by Katheryn Garver were stayed
    pending the outcome of the arbitration proceedings. The Garvers
    filed an appeal in this court shortly after the arbitration panel issued
    its decision but before the district court issued a judgment
    conforming to the arbitration award. According to the district court’s
    subsequent observation, the Garvers’ counsel nonetheless
    ―continued filing motions in the case, and those matters were fully
    briefed and addressed by the court without [any party asserting] that
    the court lacked jurisdiction.‖
    ¶3 On March 15, 2013, the district court concluded that the
    arbitration award had ―conclusively determined‖ Mr. Garver’s
    medical malpractice claim ―against him.‖ And the court also
    dismissed Mrs. Garver’s remaining claims. That judgment resolved
    all claims as to all parties. We subsequently dismissed as premature
    the appeal that had preceded the March 15 judgment. The Garvers
    failed to file a separate timely appeal of the March 15 judgment.
    ¶4 On May 21, 2013, more than sixty days after entry of the
    March 15 judgment, the Garvers filed a motion pursuant to
    rule 60(b) of the Utah Rules of Civil Procedure. That motion
    presumed that the district court had been divested of jurisdiction by
    the Garvers’ premature notice of appeal and that it lacked
    jurisdiction to enter the March 15 judgment. The district court agreed
    with those contentions and purported to reissue the judgment. In so
    doing, it purported to ―amend‖ the judgment, but it did not grant
    any affirmative relief other than reissuance of the original judgment,
    and it did not substantively alter the original decision.
    ¶5 The Garvers then filed another notice of appeal. We agreed
    to retain the case but also noted that our appellate jurisdiction may
    be limited to reviewing the district court’s order purporting to
    amend and reissue the judgment dismissing the case. We requested
    that the parties file supplemental briefing addressing the question of
    ―whether a premature notice of appeal divests a district court of
    jurisdiction to enter subsequent rulings on the merits of the case
    before it.‖ We have jurisdiction pursuant to Utah Code section 78A-
    3-102(3)(j).
    2
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                             Opinion of the Court
    Standard of Review
    ¶6 ―Whether a trial court has subject matter jurisdiction [is] a
    question of law, which this Court reviews under a correction of error
    standard. . . .‖1
    Analysis
    ¶7 As discussed below, the Garvers’ premature appeal did not
    divest the district court of jurisdiction to enter its March 15
    judgment. Accordingly, the Garvers’ deadline for filing a notice of
    appeal expired thirty days later, and it was error for the district court
    to rule otherwise. Our rules of civil and appellate procedure provide
    a set of mandatory, and jurisdictional, prerequisites that must be met
    before jurisdiction transfers from the district court to the appellate
    court. Where a party fails to comply with the rules, jurisdiction
    remains with the district court.
    ¶8 We begin by emphasizing, as we have done in a number of
    recent decisions, that parties ―may appeal only from a final,
    appealable order‖2 issued in accordance with rule 7(f)(2) of the Utah
    Rules of Civil Procedure,3 unless an exception to the rule applies.4
    1J.M.W. v. T.I.Z. (In re Adoption of Baby E.Z.), 
    2011 UT 38
    , ¶ 10, 
    266 P.3d 702
    (second alteration in original) (internal quotation marks
    omitted).
    2 Cent. Utah Water Conservancy Dist. v. King, 
    2013 UT 13
    , ¶ 9, 
    297 P.3d 619
    ; see also UTAH R. APP. P. 3(a) (―An appeal may be taken from
    a district or juvenile court to the appellate court with jurisdiction
    over the appeal from all final orders and judgments . . . .‖ (emphasis
    added)).
    3 UTAH R. CIV. P. 7(f)(2) (―Unless the court approves the proposed
    order submitted with an initial memorandum, or unless otherwise
    directed by the court, the prevailing party shall, within 21 days after
    the court’s decision, serve upon the other parties a proposed order in
    conformity with the court’s decision.‖).
    4 See Bradbury v. Valencia, 
    2000 UT 50
    , ¶ 9, 
    5 P.3d 649
    (―An appeal
    is improper if it is taken from an order or judgment that is not final,
    unless it fits within an exception to the final judgment rule.‖ (citation
    omitted)); A.J. Mackay Co. v. Okland Constr. Co., 
    817 P.2d 323
    , 325
    (Utah 1991) (―[T]here are exceptions to the final judgment rule when
    the order in question is eligible for certification under Utah Rule of
    Civil Procedure 54(b) and has been properly certified or when we
    have given permission in advance to the parties to take an appeal
    (continued)
    3
    GARVER v. ROSENBERG
    Opinion of the Court
    This ―rule is a mandatory prerequisite to appellate jurisdiction,‖ and
    ―[c]ompliance with rule 7(f)(2) is not discretionary. The rule must be
    satisfied before a district court’s decision is considered final and
    appealable.‖5 If ―the final judgment rule is not satisfied, we lack
    jurisdiction over the appeal and must dismiss it.‖ 6 As we stated in
    Powell v. Cannon, where an arbitration panel’s decision is at issue, the
    decision is not final and appealable ―[u]ntil the district court enters
    judgment on the arbitration award.‖7 This is because, by statute,
    ―[a]n agreement to arbitrate providing for arbitration in this state
    confers exclusive jurisdiction on the court to enter judgment on an
    award under this chapter.‖8
    ¶9 Rule 4 of the Utah Rules of Appellate Procedure also
    imposes strict jurisdictional limitations on the exercise of the right to
    appeal. Once a final judgment on the merits is entered in a civil case,
    parties have only thirty days to file a notice of appeal from the
    judgment,9 though the district court may extend this time period
    under certain circumstances.10 Although a party may toll this period
    by filing certain postjudgment motions, filing a motion under
    from an interlocutory order under Utah Rule of Appellate Procedure
    5.‖).
    5   King, 
    2013 UT 13
    , ¶¶ 10, 25.
    6   Powell v. Cannon, 
    2008 UT 19
    , ¶ 12, 
    179 P.3d 799
    .
    7   
    Id. ¶ 18.
       8   UTAH CODE § 78B-11-127(2).
    9  UTAH R. APP. P. 4(a) (―In a case in which an appeal is permitted
    as a matter of right from the trial court to the appellate court, the
    notice of appeal required by Rule 3 shall be filed with the clerk of the
    trial court within 30 days after the date of entry of the judgment or
    order appealed from.‖).
    10Id. 4(e) (―The trial court, upon a showing of excusable neglect or
    good cause, may extend the time for filing a notice of appeal upon
    motion filed not later than 30 days after the expiration of the time
    prescribed by paragraphs (a) and (b) of this rule.‖). Additionally, as
    of November 1, 2013, an amendment to rule 4 provided district
    courts with the authority to reinstate the period for the filing of a
    notice of appeal, provided certain strict requirements specified by
    the new subparagraph (g) are satisfied.
    4
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                                Opinion of the Court
    rule 60(b) of the Utah Rules of Civil Procedure does not toll the time
    period to appeal the judgment.11
    ¶10 Once a notice of appeal is filed, jurisdiction transfers from
    the district court to the appellate court for most matters in the case.12
    But the notice must be timely—an untimely notice may ―trigger stern
    consequences,‖ precluding the appellate court from exercising
    jurisdiction.13 To be timely, a notice of appeal cannot be filed too late,
    but it also cannot be filed too early. At the very earliest, the notice
    may be filed ―after the announcement of a decision, judgment, or
    order.‖14 If it is filed before the court announces its decision, there is
    no ―final order[] [or] judgment[]‖15 to appeal from. At the very latest,
    11 Thomas v. Thomas, 
    2014 UT App 72
    , ¶ 2, 
    323 P.3d 612
    (per
    curiam); see also UTAH R. APP. P. 4(b) (providing an exclusive list of
    postjudgment motions that toll the time for appeal).
    12 As we recently clarified in Wisan v. City of Hildale, district courts
    retain authority to deny motions under rule 60(b) even after a notice
    of appeal is filed. 
    2014 UT 20
    , ¶ 21, 
    330 P.3d 76
    (―Notwithstanding
    the filing of a notice of appeal, the district court still had jurisdiction
    to rule on the 60(b) motion pending before it.‖). ―However, if the
    district court is inclined to grant the motion, the movant must obtain
    an order of remand from the [appellate] court before an appropriate
    order or judgment is actually entered.‖ Baker v. Western Sur. Co., 
    757 P.2d 878
    , 880 (Utah Ct. App. 1988) (emphasis added).
    We also note that if the district court finds a valid basis for relief
    under rule 60(b), and elects to grant that relief in a manner that alters
    the original judgment, any such modification may be challenged by a
    separate appeal. See White v. State, 
    795 P.2d 648
    , 649–50 (Utah 1990)
    (per curiam). And, to the extent the underlying judgment is revoked
    by a ruling on the rule 60(b) motion, any pending appellate
    challenges to the revoked portion of the judgment may be mooted
    unless the rule 60(b) ruling is reversed on appeal. See 
    id. District courts
    retain jurisdiction over other similar post-
    judgment proceedings, including the issuance of stays pending
    appeal and orders relating to enforcement of a judgment when a
    judgment is not stayed pending appeal. See, e.g., Cheves v. Williams,
    
    1999 UT 86
    , ¶¶ 45–49, 
    993 P.2d 191
    ; 
    White, 795 P.2d at 649
    –50.
    13   State ex rel. M.M. v. State, 
    2003 UT 54
    , ¶ 3, 
    82 P.3d 1104
    .
    14   UTAH R. APP. P. 4(c).
    15   
    Id. 3(a). 5
                              GARVER v. ROSENBERG
    Opinion of the Court
    the notice of appeal may be filed thirty days from entry of the
    judgment, unless the time to appeal is extended under rule 4(e).16
    Otherwise, jurisdiction remains with the district court.17
    ¶11 The parties cite to language in several of our previous
    decisions, including in Wood v. Turner, that suggests that any notice
    of appeal—whether premature or not—still divests district courts of
    jurisdiction.18 Several of these opinions predate the current version
    of our rules of appellate procedure, however, which now clarifies
    that a notice of appeal must be filed, at the earliest, after the court
    announces its judgment.19 And none of the cases that the Garvers cite
    16   Supra ¶ 9.
    17 Federal courts, under a nearly identical federal rule of appellate
    procedure, have concluded that a premature notice of appeal does
    not divest the district court of jurisdiction over the case. Riggs v.
    Scrivner, Inc., 
    927 F.2d 1146
    , 1148 (10th Cir. 1991) (―While the filing of
    a timely notice of appeal divests the district court of jurisdiction, a
    premature notice of appeal is ineffective to transfer jurisdiction from
    the district court to the court of appeals.‖ (citation omitted)),
    superseded by rule, FED. R. APP. P. 3(c)(4) (1993), as recognized in
    Hehemann v. City of Cincinnati, 
    45 F.3d 430
    (6th Cir. 1994)
    (unpublished); Century Laminating, Ltd. v. Montgomery, 
    595 F.2d 563
    ,
    567 (10th Cir. 1979) (―An attempt to appeal a non-final decision of a
    district court remains just that, an attempt. It is a nullity and does not
    divest the trial court of its jurisdiction.‖).
    A number of Utah cases also reference the importance of a timely
    notice of appeal in connection with their discussion of divestment of
    jurisdiction. See, e.g., State v. Bisner, 
    2001 UT 99
    , ¶¶ 29, 39, 
    37 P.3d 1073
    (describing the ―timely‖ filing of notice of appeal as the act that
    divested a district court of jurisdiction); State v. Brown, 
    856 P.2d 358
    ,
    362 (Utah Ct. App. 1993) (noting that ―timely notice of appeal
    generally divests the trial court of further jurisdiction over a matter‖
    (internal quotation marks omitted)); State v. Sampson, 
    806 P.2d 233
    ,
    233 (Utah Ct. App. 1991) (per curiam) (same); cf. Hi-Country Estates
    Homeowners Ass’n. v. Foothills Water Co., 
    942 P.2d 305
    , 307 (Utah 1996)
    (per curiam) (holding premature remittitur could not have the effect
    of transferring jurisdiction from the court of appeals to the district
    court).
    18   
    419 P.2d 634
    , 635 (Utah 1966).
    19UTAH R. APP. P. 4(c). In its memorandum before us, the Garvers
    cite Wood, which states that a ―premature filing of the notice of
    appeal . . . should not be regarded as a defect which will ipso facto
    (continued)
    6
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                             Opinion of the Court
    deemed valid a premature filing of a notice of appeal where the
    filing was before the announcement of the judgment. 20 Still, we
    recognize the confusion that the language in these opinions may
    have caused. Accordingly, we now clarify that any of our prior
    decisions generally stating that a notice of appeal divests the district
    court of jurisdiction should be construed as referring to timely notices
    of appeal. And to the extent our prior decisions state or imply that a
    notice of appeal filed before announcement of the judgment divests a
    district court of jurisdiction, we disavow such statements.
    ¶12 In sum, jurisdiction transfers from the district court to the
    appellate court only where: (1) the district court has at the very least
    announced its decision, and a subsequent final judgment is entered
    in conformity with the announcement; and (2) the appealing party
    files a timely notice of appeal. In other words, the timing of a party’s
    appeal is central to the transfer of jurisdiction from the district court
    to the appellate court.
    ¶13 Here, the Garvers’ timing was significantly off, and
    jurisdiction over the case therefore never transferred to the appellate
    court. After the district court compelled arbitration and after the
    arbitration panel announced its decision, the Garvers filed a notice of
    appeal on November 16, 2012, challenging only the district court’s
    order that compelled arbitration. We dismissed this appeal as
    premature on May 8, 2013,21 because there was neither a ―final
    entirely deprive the appellate court of jurisdiction. It is an
    irregularity which would be grounds for dismissal of the appeal
    within the discretion of the 
    court.‖ 419 P.2d at 635
    . But rule 4(c) has
    since clarified that although a premature notice of appeal will relate
    forward, it will do so only when the notice is filed between the
    announcement of the judgment and the entry of the judgment. If it is
    filed before the judgment is even announced, it is considered ―a
    nullity.‖ 
    Montgomery, 595 F.2d at 567
    (clarifying the notice of appeal
    timing requirements under a nearly identical federal rule of
    appellate procedure).
    See Nelson v. Stoker, 
    669 P.2d 390
    , 392–93 (Utah 1983); Kennedy v.
    20
    New Era Indus., Inc., 
    600 P.2d 534
    , 536 n.3 (Utah 1979).
    21 This court’s dismissal of the first appeal is now the law of the
    case and cannot be challenged in the context of this appeal.
    7
    GARVER v. ROSENBERG
    Opinion of the Court
    order[]‖22 in the case, nor did the Garvers properly seek
    interlocutory relief.23
    ¶14 Before we dismissed the appeal, however, the district court
    entered a judgment conforming to the arbitration panel’s decision on
    March 15, 2013, in what became the necessary final judgment in the
    case, disposing of all claims as to both Mr. and Mrs. Garver.
    Although the Garvers had thirty days to appeal from this judgment,
    they failed to do so. Instead, they filed a motion under rule 60(b),
    contending that the district court lacked jurisdiction to enter its
    March 15 judgment. In essence, they argued that their premature
    notice of appeal filed on November 16, 2012, divested the district
    court of jurisdiction, so the district court’s March 15 judgment was
    improper. The district court agreed and entered a ruling on February
    21, 2014, granting the Garvers’ rule 60(b) motion and purporting to
    ―reissue‖ the judgment.
    ¶15 This was error. As described above, a premature notice of
    appeal does not effectuate a transfer of jurisdiction to review the
    merits of a case. Accordingly, the district court in this case retained
    jurisdiction. Parties cannot circumvent the jurisdictional deadlines
    prescribed by rule 4 of the Utah Rules of Appellate Procedure with a
    postjudgment motion under rule 60(b) of the Utah Rules of Civil
    Procedure asking the district court to reissue the judgment. And
    district courts lack the authority to acquiesce to such a request.
    Where an appeal is patently premature, district courts need not be
    concerned that they lack jurisdiction to proceed with a case. And
    where the jurisdictional question is in doubt, district courts have
    tools at their disposal, including the power of a stay, to resolve these
    concerns.24
    22 UTAH R. APP. P. 3(a); see Powell, 
    2008 UT 19
    , ¶ 18 (―[T]he order
    compelling arbitration and staying litigation neither ended the
    controversy between the litigants nor disposed of the subject matter
    of the litigation. Indeed, the district court retained jurisdiction over
    the case by staying the litigation pending the completion of the
    arbitration.‖). Furthermore, no exception to the final judgment rule
    applied.
    23Although section 78B-11-129 of the Utah Code permits a direct
    appeal of certain interlocutory decisions pertaining to arbitration, an
    order compelling arbitration is not one of them.
    24 It is true that an appellate court is the ultimate judge of its own
    jurisdiction. See Powell, 
    2008 UT 19
    , ¶ 9. Thus, a district court cannot
    enter an order declaring an appeal to be premature that would be
    (continued)
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                            Opinion of the Court
    Conclusion
    ¶16 The district court erred in assuming it was divested of
    jurisdiction by the Garvers’ premature notice of appeal. That court
    had jurisdiction to issue the March 15, 2013, judgment; and, because
    the Garvers failed to timely appeal that judgment, we lack
    jurisdiction to address any challenge to the merits. The district
    court’s ruling on the rule 60(b) motion also did not substantively
    alter the March 15 judgment, nor could it under the Utah Court of
    Appeals’ ruling in Baker.25 Thus, there is no issue that remains for us
    to review and we dismiss the appeal.
    binding on an appellate court. Nonetheless, district courts retain
    inherent authority to manage their proceedings to promote efficiency
    in the judicial process and to prevent attempts (conscious or
    otherwise) to abuse that process. To that end, a district court may
    stay proceedings pending an appellate decision on the jurisdictional
    issue. Lewis v. Moultree, 
    627 P.2d 94
    , 96 (Utah 1981) (―It lies
    within the inherent power of the courts to grant a stay of
    proceedings. It is a discretionary power, and the grounds
    therefor necessarily vary according to the requirements of each
    individual case.‖) And rule 8 of the Utah Rules of Appellate
    Procedure provides an independent mechanism for appellate courts
    to stay a ―judgment or order‖ of a district court in any circumstance
    where it appears a district court has exceeded its discretion by
    declining to acknowledge a timely appeal or by declining to grant a
    stay.
    25 Baker v. W. Sur. Co., 
    757 P.2d 878
    , 880 (Utah Ct. App. 1988)
    (requiring district courts to obtain an order of remand from the
    appellate court before granting a rule 60(b) motion).
    9