Copper Hills v. Countrywide Bank

This opinion is subject to revision before final
publication in the Pacific Reporter
2018 UT 42
IN THE
SUPREME COURT OF THE STATE OF UTAH
COPPER HILLS CUSTOM HOMES, LLC,
Appellant,
v.
COUNTRYWIDE BANK, FSB, 1
Appellees.
No. 20160803
Filed August 16, 2018
On Direct Appeal
Third District, Salt Lake
The Honorable Matthew Bates
No. 150907425
Attorneys:
Troy L. Booher, Beth E. Kennedy, Alexandra Mareschal, Salt Lake City;
Nate D. Ashcraft, Lehi, for appellant
Chandler P. Thompson, Alan M. Hurst, Salt Lake City, for appellees
Countrywide Bank, FSB and Mortgage Electronic Registration Systems,
Inc.
Bradley L. Tilt, Sara E. Bouley, Salt Lake City, for appellees Diane
Griffin, Eldon E. Griffin, Marcus Griffin, Stearns Lending, Inc., and
Utah Community Federal Credit Union,
1DIANE GRIFFIN, ELDON E. GRIFFIN, MARCUS GRIFFIN, MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS, INC., PRIMELENDING, STEARNS
LENDING, INC., JASON P. TURNER, and UTAH COMMUNITY FEDERAL CREDIT
UNION are also parties to this appeal.
COPPER HILLS CUSTOM HOMES v. COUNTRYWIDE BANK
Opinion of the Court
Brett N. Anderson, Salt Lake City, for appellees Primelending and
Jason P. Turner
JUSTICE HIMONAS authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE PETERSEN, and JUDGE HARRIS Joined.
Having recused himself, JUSTICE PEARCE does not participate herein;
COURT OF APPEALS JUDGE RYAN M. HARRIS sat.
JUSTICE HIMONAS, opinion of the Court:
¶ 1 Acting pursuant to rule 54(b) of the Utah Rules of Civil
Procedure, the district court sought to certify as final and appealable
several orders related to the disposition of mechanic’s liens. The
plaintiff, Copper Hills Custom Homes, then appealed those orders to
this court. But we may not act on an appeal, including an appeal of a
putative final order under rule 54(b), unless we are satisfied that we
have appellate jurisdiction. And our review of the 54(b) certifications
here reveals them to be flawed. This circumstance is by no means
unique to this appeal—improper 54(b) certifications have proven to be
a recurring source of jurisdictional complications. 2 Therefore, we
dismiss the appeal for lack of appellate jurisdiction, but take the time to
readdress and refine the steps that the parties and district courts must
take to ensure proper certification under rule 54(b) in order to avoid
unnecessary remands.
¶ 2 We are not oblivious to the fact that our decision today will
leave the parties feeling that form has triumphed over substance. In a
sense, they would not be wrong. But “we cannot fabricate the power to
2 Our decision in Palmer v. First National Bank of Layton, 2018 UT
43, ---P.3d---, also issued today, serves as a prime example. There, the
judgment certified as final does not meet the jurisdictional requirement
of rule 54(b) to “expressly determine[] that there [was] no just reason for
delay,” UTAH R. CIV. P. 54(b) (emphasis added), nor does it offer the
necessary findings of facts and conclusions of law required by our
decision in Bennion v. Pennzoil Co., 826 P.2d 137, 138–39 (Utah 1992) (per
curiam) and Utah Rule of Civil Procedure 52(a). Palmer, 2018 UT 43,
¶ 13; see infra ¶ 27.
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Opinion of the Court
hear a case simply because it seems more palatable than acknowledging
that we lack jurisdiction.” DFI Props. LLC v. GR 2 Enters. LLC, 2010 UT
61, ¶ 23, 242 P.3d 781. And “[t]he lost time and effort occasioned by the
briefing and oral argument in [such a] case is a small price to pay for
insisting that the parties comply with the rules of procedure so that the
proper relationship between” appellate courts and the district courts
“may be maintained.” Id. (first alteration in original) (citation omitted).
It is therefore “incumbent upon us when we find that we lack
jurisdiction to hear a case,” as is the situation here, to dismiss the
appeal. Id.
I
¶ 3 The germane facts are scant and not in dispute. “Copper Hills
provided construction contracting services to Morningside Developers
. . . on eight separate parcels of real property in 2006.” Morningside
Developers, LLC v. Copper Hills Custom Homes, LLC, 2015 UT App 99, ¶ 2,
348 P.3d 726. Claiming that “Morningside failed to pay [it] for its work,
Copper Hills recorded mechanic[’]s liens against each of the parcels
and ultimately filed eight separate lien foreclosure actions.” Id. In
response, Morningside sued “Copper Hills for breach of contract,
fraud, and related claims.” Id. The district court consolidated
Morningside’s claims and Copper Hills’s foreclosure actions in October
2009. Id.
¶ 4 After two years of inaction and an intervening “order to show
cause why the case should not be dismissed[,] . . . the district court
dismissed the case without prejudice.” Id. ¶¶ 3–4. Copper Hills moved
to set aside that dismissal. The district court granted the motion. Id. ¶ 4.
¶ 5 After the dismissal had been set aside, “Copper Hills filed an
amended complaint adding twenty-five additional parties.” Id. ¶ 5. This
prompted the district court to issue “a new order to show cause . . .
ordering the parties to address whether” its prior decision to set aside
the order of dismissal should be vacated. Id. And, “[f]ollowing a
hearing, the district court issued an order in which it vacated the [order
to set aside] and dismissed the case with prejudice.” Id.
¶ 6 On appeal, the court of appeals vacated the district court’s
decision “insofar as it dismisse[d] the case with prejudice.” Id. ¶ 12.
Then it reinstated the district court’s order dismissing the case without
prejudice. Id.
¶ 7 One day shy of 180 days from when the court of appeals issued
its decision, but more than eight years from when the liens were
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COPPER HILLS CUSTOM HOMES v. COUNTRYWIDE BANK
Opinion of the Court
initially recorded, Copper Hills filed the action that now comes before
us. Shortly thereafter, appellees Countrywide Bank and Mortgage
Electronic Registration Systems (MERS) moved to dismiss the claims
against them, arguing that “Copper Hills . . . violated the 180-day
limitation” in Utah Code section 38-1-11(2) (2007). 3 Other appellees
followed suit.
¶ 8 Based on appellees’ argument, the district court concluded that
several of Copper Hills’s liens were “time-barred, void, and
unenforceable.” And, as a result, it issued the five orders presently
before us. 4
¶ 9 The district court sought to certify each of these orders as final
and appealable under rule 54(b). To this end, it sought to grant 54(b)
certification to the first three items by an order dated September 27,
2016. And it sought to grant 54(b) certification as to the fourth and fifth
orders with language in the orders themselves. As we explain below,
each of these certifications was ineffectual.
II
3 Below, the district court and the “parties appropriately relied on
the version of the mechanic[’]s lien statute . . . in effect,” Uhrhahn
Constr. & Design, Inc. v. Hopkins, 2008 UT App 41, ¶ 6 n.5, 179 P.3d 808,
when Copper Hills recorded the relevant lien notices. “[W]e do the
same.” Id. And at the time of recordation, Utah Code section 38-1-11(2)
(2007) provided that “[a] lien claimant shall file an action to enforce the
lien filed under this chapter within 180 days from the day on which the
lien claimant filed a notice of claim under Section 38-1-7.”
4 The five relevant orders are: (1) order granting motions to dismiss
and declaring mechanic’s liens void, dated July 13, 2016; (2) order and
judgment awarding attorney fees and costs to defendants Utah
Community Federal Credit Union, Stearns Lending, Inc., Marcus
Griffin, Diane Griffin, and Eldon Griffin, dated July 13, 2016; (3) order
and judgment awarding attorney fees and costs to defendants
Countrywide Bank, FSB and Mortgage Electronic Registration Systems,
Inc., dated August 1, 2016; (4) stipulation for entry of judgment based
on law of the case and order dismissing case as to certain defendants,
dated August 30, 2016; and (5) judgment based on the law of the case
and order dismissing case as to lot 10 in Dearborne Heights PUD Phase
1, dated October 5, 2016.
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Opinion of the Court
¶ 10 As a general rule, an appellate court does not have jurisdiction
to consider an appeal unless the appeal is taken from a final order or
judgment that “end[s] the controversy between the litigants.” Anderson
v. Wilshire Invs., L.L.C., 2005 UT 59, ¶ 9, 123 P.3d 393 (citation omitted);
see also Kennecott Corp. v. Utah State Tax Comm’n, 814 P.2d 1099, 1101
(Utah 1991) (“The historical rule is that except in a narrow category of
situations, no order of a trial court is appealable until a final judgment
is entered on all issues.” (citation omitted)); Williams v. State, 716 P.2d
806, 807 (Utah 1986) (“Under traditional principles of appellate
review, . . . an appeal may be taken only from a final judgment
concluding all of the issues in the case.” (citation omitted)). This tenet is
often referred to as “the final judgment rule.”
¶ 11 The obvious and “principal rationale for limiting the right to
appeal in this way is to ‘promote [ ] judicial economy by preventing
piecemeal appeals in the same litigation to this Court.’” Anderson, 2005
UT 59, ¶ 9 (alteration in original) (citation omitted). We are also
concerned that multiple rulings in the same litigation on “narrow issues
taken out of . . . context” may needlessly increase the risk of
inconsistent or erroneous decisions. Kennecott, 814 P.2d at 1101.
Moreover, “[s]trict adherence to the final judgment rule . . . maintains
the proper relationship between this Court and the [district] courts.”
Powell v. Cannon, 2008 UT 19, ¶ 12, 179 P.3d 799 (citation omitted)
(internal quotation marks omitted).
¶ 12 “This court has consistently upheld the final judgment rule.”
Bradbury v. Valencia, 2000 UT 50, ¶ 10, 5 P.3d 649 (citations omitted).
But, as with nearly every general rule, there are exceptions. See Wash.
Townhomes, LLC v. Wash. Cty. Water Conservancy Dist., 2016 UT 43, ¶ 6,
388 P.3d 753. The final judgment rule has three.
¶ 13 The first exception to the final judgment rule “is when the
legislature provides a statutory avenue for appealing nonfinal orders.”
Powell, 2008 UT 19, ¶ 13 (citation omitted). For example, Utah Code
section 78B-11-129(1)(a)–(e) allows for appeals from several specific
types of court orders in addition to “a final judgment.” UTAH CODE
§ 78B-11-129(1).
¶ 14 The second exception is an interlocutory appeal. Our rules of
appellate procedure prescribe when an interlocutory appeal may be
requested:
An appeal from an interlocutory order may be sought by
any party by filing a petition for permission to appeal
from the interlocutory order with the clerk of the
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Opinion of the Court
appellate court with jurisdiction over the case within 20
days after the entry of the order of the trial court, with
proof of service on all other parties to the action.
UTAH R. APP. P. 5(a). An interlocutory appeal is a discretionary appeal
of a non-final order, meaning that the appellate court has the discretion
to hear the appeal as it is not an appeal as a matter of right. See
Williams, 716 P.2d at 807 (noting the existence of an exception for “any
interlocutory order or decision, but only at this Court’s discretion”).
¶ 15 The third exception, and the one with which we concern
ourselves in this opinion, is an appeal brought under rule 54(b) of the
Utah Rules of Civil Procedure. It provides:
When an action presents more than one claim for relief—
whether as a claim, counterclaim, cross claim, or third
party claim—and/or when multiple parties are involved,
the court may enter judgment as to one or more but fewer
than all of the claims or parties only if the court expressly
determines that there is no just reason for delay.
Otherwise, any order or other decision, however
designated, that adjudicates fewer than all the claims or
the rights and liabilities of fewer than all the parties does
not end the action as to any of the claims or parties, and
may be changed at any time before the entry of judgment
adjudicating all the claims and the rights and liabilities of
all the parties.
UTAH R. CIV. P. 54(b); see also Williams, 716 P.2d at 807 (noting another
exception to the general rule is “set forth in [r]ule 54(b) of the Utah
Rules of Civil Procedure”). This exception to the final judgment rule is
similar to the interlocutory appeal exception in that it allows an
appellate court to weigh in on a matter even though not all of the
causes of action for all of the parties have been adjudicated. It differs,
primarily, in that (1) an order properly certified under rule 54(b) is
considered final and appealable by right and (2) it is the district court
and not the appellate court that has the discretion (at least in the first
instance) to decide whether an order that does not dispose of the entire
action may nevertheless be appealed if it meets certain criteria. This
discretion, however, should not be interpreted to mean that appellate
courts can consider matters that district courts have improperly
certified. They cannot.
¶ 16 “By the terms of [r]ule 54(b), a ruling must meet three
requirements in order to be appealable.” Pate v. Marathon Steel Co., 692
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Opinion of the Court
P.2d 765, 767 (Utah 1984); see also Butler v. Corp. of the President of the
Church of Jesus Christ of Latter-Day Saints, 2014 UT 41, ¶ 25, 337 P.3d 280.
The first requirement is that “there must be multiple claims for relief or
multiple parties to the action;” the second is that “the judgment
appealed from must have been entered on an order that would be
appealable but for the fact that other claims or parties remain in the
action;” and the third is that the “[district] court, in its discretion, must
make a[n express] determination that there is no just reason for delay.”
Butler, 2014 UT 41, ¶ 25 (emphasis omitted) (citation omitted).
¶ 17 In applying these requirements, we have steadfastly adhered
to a “narrow approach to 54(b) certifications” and advised our district
courts to do the same. Kennecott, 814 P.2d at 1104. Two of our decisions
merit particular attention: Kennecott, 814 P.2d 1099, and Bennion v.
Pennzoil Co., 826 P.2d 137 (Utah 1992) (per curiam).
¶ 18 In Kennecott, we carefully reviewed the merits of two
competing “approaches to determining when a claim is separate and an
order disposing of it is eligible for treatment as a ‘final’ judgment and
certification under rule 54(b).” 814 P.2d at 1102. The first approach,
“exemplified by the Seventh Circuit,” confined 54(b) certification to
claims based on different legal theories and different operative facts. Id.
at 1103. The second, “exemplified by the approach of the Second
Circuit,” took a more “liberal” view and allowed for certification “when
the facts give rise to more than one legal right or cause of action.” Id.
(citation omitted).
¶ 19 Upon completing our review, we decidedly eschewed the
“broad reading” afforded rule 54(b) by the Second Circuit, declaring it
to be “inapposite when construing the Utah rule.” Id. at 1104. In
reaching this conclusion we noted that “54(b) certification has relatively
little consequence for” district courts. Id. As a result, “[o]ur experience
suggest[ed] that district courts rather freely grant[ed] certifications,
often without examining closely the certifiability of the underlying
order.” Id. (citation omitted).
¶ 20 In Bennion we took “another step toward building workable
guidelines to be used by the [district] courts of this state as they judge
whether a claim is separate and whether their decision to certify the
claim would pass muster in our appellate courts.” 826 P.2d at 138. We
did so because of the problem we often encountered in being unable to
clearly “understand the . . . reasons for certification.” Id.
¶ 21 To help address this problem, we reemphasized the
importance of complying with Utah Rule of Civil Procedure 52(a),
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Opinion of the Court
requiring district courts to “enter findings supporting the conclusion
that [the certified] orders are final.” Id. at 139. These findings, we
explained, should detail “the lack of factual overlap between the
certified and remaining claims and thus satisfy the Kennecott criterion”
for being final. Id. In addition to reflecting “an express determination
by the [district] court that there is no just reason for delay,” these
findings should also “advance[] a rationale as to why” such is the case.
Id. (citation omitted). 5
¶ 22 And, while we are by no means tethered to the interpretation
afforded by the Tenth Circuit to the federal variant of rule 54(b), we
also do not exist in a vacuum. We appreciate that there is often value in
having the appellate courts of a particular locale speak consistently
when it comes to the interpretation of substantively identical
procedural rules, like 54(b). See Kennecott, 814 P.2d at 1102; cf. Pate, 692
P.2d at 767 (“Utah’s Rule 54(b) is modeled after and is identical in all
material respects to the corresponding federal rule.”) Such is the case
here. The Tenth Circuit has also taken care to note “that courts entering
a Rule 54(b) certification should ‘clearly articulate their reasons and
make careful statements based on the record supporting their
determination of “finality” and “no just reason for delay” so that [the
10th Circuit] [can] review a 54(b) order more intelligently[] and thus
avoid jurisdictional remands.’” Stockman’s Water Co., LLC v. Vaca
Partners, L.P., 425 F.3d 1263, 1265 (10th Cir. 2005) (second and third
alterations in original) (citation omitted). We are in complete agreement
with the Tenth Circuit’s view in this regard, as well as with its view
that, “[a]bsent a clear articulation of the district court’s reasons for
granting certification, we have no basis for conducting a meaningful
review of the district court’s” decision. Id. at 1266. 6
5 Since we find that deficient 52(a) findings hinder our ability to
review 54(b) final judgments, we refer this problem to our civil rules
committee to consider whether to add language to rule 54(b) requiring
something more than just a bare, express determination that there is
“no just reason for delay.”
6 We also echo the Tenth Circuit’s standards of review “[f]or [r]ule
54(b) certifications.” New Mexico v. Trujillo, 813 F.3d 1308, 1317 (10th
Cir. 2016). “We review de novo the district court’s determination of
finality as a question of law.” Id.; see also Butler, 2014 UT 41, ¶ 15
(“Whether appellate jurisdiction exists is a question of law, which we
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Opinion of the Court
III
¶ 23 When we apply these principles to this case, we conclude that
the 54(b) certification orders at issue are deficient. There are four
distinct reasons. 7
¶ 24 First, the stipulation for entry of judgment and order
dismissing the case, dated August 30, 2016, does not meet the second
Kennecott requirement that this order is not one that would “have been
entered on an order that would be appealable but for the fact that other
claims or parties remain in the action.” Kennecott Corp. v. Utah State Tax
Comm’n, 814 P.2d 1099, 1101 (Utah 1991) (citation omitted). The
question of the amount of the award of attorney fees remained
unanswered at the time of certification. Prior to November 1, 2016, the
effective date of the 2016 amendments to rule 58A of the Utah Rules of
Civil Procedure,8 an order that left open the amount of attorney fees
was not a final appealable order. See ProMax Dev. Corp. v. Raile, 2000 UT
4, ¶ 15, 998 P.2d 254 (“We therefore hold that, in the interest of judicial
economy, a trial court must determine the amount of attorney fees
awardable to a party before the judgment becomes final for the
purposes of an appeal under Utah Rule of Appellate Procedure 3.”).
review for correctness.” (citation omitted)). And “[w]e review the
determination of no just reason for delay for abuse of discretion.”
Trujillo, 813 F.3d at 1317; Bennion, 826 P.2d at 139 (noting a district
court’s determination that “there was no just reason for delay” is
“review[ed] under an abuse of discretion standard”).
7 We acknowledge that the certifications at issue here satisfy the first
requirement of the rule 54(b) test: the existence of “multiple claims for
relief or multiple parties to the action.” Butler v. Corp. of the President of
the Church of Jesus Christ of Latter-Day Saints, 2014 UT 41, ¶ 25, 337 P.3d
280 (citation omitted).
8 After the 2016 amendments, paragraph (f) of rule 58A reads “[a]
motion or claim for attorney fees does not affect the finality of a
judgment for any purpose.” It then goes on to provide that “under Rule
of Appellate Procedure 4, the time in which to file the notice of appeal
runs from the disposition of the motion or claim.” UTAH R. CIV. P.
58A(f). We have some concern that these two clauses are somewhat
internally inconsistent. And we invite our advisory committee on the
rules of civil procedure to consider a rule in line with the federal
variant. See FED. R. CIV. P. 58(e).
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Opinion of the Court
¶ 25 Paragraph 5 of the August 30 order awards defendants Jason
Turner, Primelending, and MERS “an award of reasonable attorney[]
fees and costs incurred . . . on the mechanic[’]s liens issues,” but leaves
open the amount of those fees. Because the ProMax Development rule
applies to this appeal, 9 we hold that the district court erred as a matter
of law in certifying the August 30 order as final and, therefore, dismiss
that portion of the appeal for want of appellate jurisdiction. 10
¶ 26 Second, the September 27 order does not meet the third
requirement for 54(b) certification: an express determination “that there
is no just reason for delay.” 11 Butler v. Corp. of the President of the Church
of Jesus Christ of Latter-Day Saints, 2014 UT 41, ¶ 25, 337 P.3d 280
(citation omitted). This defect deprives us of appellate jurisdiction over
the first three items set forth in the operative notice of appeal. 12
9 The operative notice of appeal in this matter was filed on October
27, 2016, five days prior to when the 2016 amendments to rule 58A took
effect. As a result, the ProMax Development rule pertains. See State v.
Clark, 2011 UT 23, ¶ 13, 251 P.3d 829 (“[W]e apply the law as it exists at
the time of the event regulated by the law in question.”).
10 We own that our decisions vary in the jurisdictional terms they
employ to describe the issue of whether an order is final. See A.S. v.
R.S., 2017 UT 77, ¶ 35 n.12, 416 P.3d 465. Some of our cases describe the
issue as one of appellate jurisdiction. See, e.g., Butler, 2014 UT 41, ¶ 15.
Others describe it as a matter of subject matter jurisdiction. See, e.g., DFI
Props. LLC v. GR 2 Enters. LLC, 2010 UT 61, ¶ 2, 242 P.3d 781. We
disavow the language that deems this issue one of subject matter
jurisdiction. If we have the discretion to hear a case under Utah Rule of
Appellate Procedure 5(a) in certain instances, then we clearly have
subject matter jurisdiction. The question is whether appellate
jurisdiction exists.
11 The same is true of the September 20, 2016 ruling on request for
rule 54(b) certification, which preceded the September 27 order.
12Again, these three items are (1) order dated July 13, 2016; (2) order
and judgment dated July 13, 2016; and (3) order and judgment dated
August 1, 2016. Supra ¶ 8 n.4.
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Opinion of the Court
¶ 27 Third, while the district court did expressly state that “there is
no just reason for delay” in certifying the fourth and fifth items, 13 it did
not set forth a clear rationale as to why there is no just reason. UTAH R.
CIV. P 52(a). While rule 52(a) is not a technical bar to our jurisdiction, it
functions as a practical bar to our appellate jurisdiction. We cannot
review an order that does not offer the court enough findings and
conclusions to “understand the [district] court’s reason[ing].” Bennion v.
Pennzoil Co., 826 P.2d 137, 138 (Utah 1992) (per curiam). It also did not
actually certify either order as final, and certification under rule 54(b)
presumes the order was certified as final. Bennion, 826 P.2d at 139 (“In
order to facilitate this court’s review of judgments certified as final
under rule 54(b), [district] courts should henceforth enter findings
supporting the conclusion that such orders are final.”). The failure to
set forth a rationale deprives us of the ability to meaningfully assess
whether the district court abused its discretion in determining that
there is no just reason for delay. See Stockman’s Water Co., LLC v. Vaca
Partners, L.P., 425 F.3d 1263, 1265 (10th Cir. 2005) (“[C]ourts entering a
Rule 54(b) certification should ‘clearly articulate their reasons and make
careful statements based on the record supporting their determination
of “finality” and “no just reason for delay” so that we [can] review a
54(b) order more intelligently[] and thus avoid jurisdictional
remands.’” (second and third alterations in original) (citation omitted)).
And the failure to certify the orders as final independently deprives us
of appellate jurisdiction over the fourth and fifth items.
¶ 28 Fourth, neither the 54(b) certifications nor the underlying
orders contain the kind of careful explanation of the lack of factual
overlap between the certified and remaining claims that we require to
fairly evaluate the district court’s certification decisions. By way of
example only, there is no discussion of what claims remain, other than
attorney fees, and whether none, some, or all of those claims are based
on different legal theories or operative facts. While this alone would not
create a jurisdictional bar, it is self-evident that we cannot review the
district court’s analysis in this regard if analysis is not provided.
IV
¶ 29 Nothing in this opinion should be interpreted as holding that
the parties cannot obtain proper rule 54(b) certification of the relevant
13 The fourth item is the August 30 order; the fifth is dated October
5, 2016. Supra ¶ 8 n.4.
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Opinion of the Court
orders. Perhaps it shall come to pass. But, for the reasons we have
identified, the 54(b) certifications currently before us do not lay a
sufficient foundation for the exercise of our appellate jurisdiction.14
Therefore, we dismiss the appeal in its entirety.
14 Rule 5(a) of the Utah Rules of Appellate Procedure, allows us, in
our discretion, to treat certain improper 54(b) certifications as
interlocutory appeals. We decline to exercise that discretion here for
three reasons. First, we see no basis in the materials before us to
conclude that this “appeal may materially advance the termination of
the litigation,” an integral showing in any interlocutory appeal. UTAH
R. APP. P. 5(c)(1)(D). Second, the parties have the ability to ask the
district court to re-certify the relevant orders. And third, we believe this
is an allowance that we should wield judiciously and sparingly.
12