Ziegenbusch v. Westminster College

2013 UT App 2_________________________________________________________
THE UTAH COURT OF APPEALS
JEREMY ZIEGENBUSCH,
Plaintiff and Appellant,
v.
WESTMINSTER COLLEGE,
Defendant and Appellee.
Per Curiam Decision
No. 20120946‐CA
Filed January 4, 2013
Third District, West Jordan Department
The Honorable Andrew H. Stone
No. 090415154
Loren M. Lambert, Attorney for Appellant
Robert H. Wilde, Bruce M. Franson, and Michael S. Wilde,
Attorneys for Appellee
Before JUDGES ORME, DAVIS, and CHRISTIANSEN.
PER CURIAM:
¶1 Jeremy Ziegenbusch appeals the entry of judgment against
him. This is before the court on Westminster College’s (Westmin‐
ster) motion for summary disposition asserting that this court lacks
jurisdiction due to an untimely notice of appeal.
¶2 Ziegenbusch filed his first notice of appeal in October 2011,
after the trial court granted summary judgment in favor of
Westminster and dismissed Ziegenbusch’s claims. At that time,
Westminster’s counterclaim remained pending. The counterclaim
was put at issue before the trial court in mid‐2012. After a hearing,
Ziegenbusch v. Westminster College
the trial court granted summary judgment in favor of Westminster
on its counterclaim. The final order on the counterclaim, the sole
remaining issue between the parties, was entered on August 10,
2012. Ziegenbusch filed a second notice of appeal, captioned as a
“renewal of notice of appeal,” on September 28, 2012.
¶3 The issue before the court is whether either of the two
notices of appeal filed in this case properly invokes this court’s
jurisdiction. We determine that both are insufficient but for
different reasons. The October 2011 notice of appeal was filed
before the entry of a final order and was thus premature. The
September 2012 notice was not filed within thirty days of the entry
of the final order and was thus untimely.
¶4 Generally, an appeal taken from an order that is not final is
improper and does not establish jurisdiction in an appellate court.
See Bradbury v. Valencia, 2000 UT 50, ¶¶ 8–9, 5 P.3d 649. An order
is final when it disposes of all of the issues between the parties and
“ends the controversy between the parties.” Id. ¶ 9. An order of
summary judgment on a plaintiff’s claim will not constitute a final
order where a counterclaim remains pending. See id. ¶ 10. Here, the
October 2011 notice of appeal was filed when Westminster’s
counterclaim was pending. Accordingly, there was no final order
from which to appeal and the October 2011 notice did not invoke
this court’s jurisdiction. See id.
¶5 Appeals from final orders may be taken by filing a notice of
appeal within thirty days after the entry of the judgment or order
appealed. See Utah R. App. P. 4(a). Where an appeal is not timely
filed, this court lacks jurisdiction over the appeal. See Serrato v. Utah
Transit Auth., 2000 UT App 299, ¶ 7, 13 P.3d 616. The final order in
this case was entered on August 10, 2012. The notice filed on
September 28, 2012, was beyond the thirty‐day time period and,
thus, was untimely. Accordingly, this court lacks jurisdiction over
this appeal.
20120946‐CA 2 2013 UT App 2Ziegenbusch v. Westminster College
¶6 Ziegenbusch argues that the October 2011 notice of appeal
is timely under the savings provision of rule 4(c) of the Utah Rules
of Appellate Procedure. However, rule 4(c) does not apply in this
circumstance. Rule 4(c) provides that a notice of appeal filed “after
the announcement of a decision, judgment or order but before
entry of the judgment or order shall be treated as filed after such
entry and on the day thereof.” Utah R. App. P. 4(c). However, rule
4 applies to appeals taken as a matter of right, e.g., from final
orders. See id. R. 4(a). Here, the October 2011 notice was not filed
after the entry of a final order or after the announcement of a final
decision, but was filed after the entry of an interlocutory order. The
counterclaim was not before the trial court for decision until
months later. Accordingly, the sequence here does not come within
the scope of rule 4(c), i.e., a notice filed after the announcement of
a final decision but before the entry of a formal order. Therefore,
the October 2011 notice of appeal was simply ineffective and
cannot be “renewed” after the entry of a final order.
¶7 Additionally, Ziegenbusch notes that Westminster failed to
comply with rule 58A(d) of the Utah Rules of Civil Procedure
because it failed to serve him with notice of the entry of judgment.
Even if correct, however, the failure to serve notice does not affect
the time for filing a notice of appeal. See Utah R. Civ. P. 58A(d).
¶8 In sum, the October 2011 notice of appeal was filed prema‐
turely and the September 2012 notice of appeal was filed late.
Neither notice was effective to invoke the jurisdiction of this court.
Where we lack jurisdiction over an appeal, we must dismiss it. See
Bradbury, 2000 UT 50, ¶ 8.
¶9 Dismissed.
____________________
20120946‐CA 3 2013 UT App 2