Velander v. LOL of Utah, LLC and Richards

2013 UT App 196_________________________________________________________
THE UTAH COURT OF APPEALS
D. DOUGLAS VELANDER,
Plaintiff and Appellant,
v.
LOL OF UTAH, LLC, AND KEVIN G. RICHARDS,
Defendants and Appellee.
Per Curiam Decision
No. 20130391‐CA
Filed August 1, 2013
Second District, Ogden Department
The Honorable Mark R. DeCaria
No. 080905254
Samuel A. Hood, Attorney for Appellant
Kevin G. Richards, Appellee Pro Se
Before JUDGES ORME, DAVIS, AND MCHUGH.
PER CURIAM:
¶1 D. Douglas Velander appeals the district court’s April 4,
2013 order. We reverse and remand.
¶2 A motion filed pursuant to rule 59 of the Utah Rules of Civil
Procedure “shall be served not later than ten days after the entry of
the judgment.” Utah R. Civ. P. 59(b). When a rule 59 motion is not
filed timely, the district court is required to deny the motion.
Burgers v. Maiben, 652 P.2d 1320, 1321 (Utah 1982). The district
court granted Richards’s motion to dismiss on December 21, 2012.
On January 10, 2013, Velander filed a rule 59 motion to amend the
judgment. On April 4, 2013, the district court denied the rule 59
motion on the ground that it was not filed within ten days after the
entry of the judgment.
Velander v. LOL of Utah, LLC and Richards
¶3 However, rule 54 of the Utah Rules of Civil Procedure
defines a judgment as “any order from which an appeal lies.” Utah
R. Civ. P. 54(a). To be appealable, an order contemplated as a final,
appealable order by the district court “must explicitly direct that no
additional order is necessary.” See Giusti v. Sterling Wentworth
Corp., 2009 UT 2, ¶¶ 30–36, 201 P.3d 966. Otherwise, when the
district court does not expressly direct that its order is the final
order of the court, rule 7(f)(2) of the Utah Rules of Civil Procedure
requires the prevailing party to prepare and file an order to trigger
finality for purposes of appeal. See id. ¶ 30. If the prevailing party
does not prepare and file an order in accordance with rule 7(f)(2),
the non‐prevailing party may do so. See id. ¶ 38.
¶4 The time period for filing a rule 59 motion runs from the
date of entry of an appealable order. See Utah R. Civ. P. 54(a). The
December 21, 2012 order was not appealable because it failed to
comply with the requirements set forth in Giusti and rule 7(f)(2).
Thus, the district court erred by denying the rule 59 motion on the
basis that it was untimely, as the ten‐day time period for filing the
rule 59 motion did not commence on December 21, 2012, and,
indeed, has yet to commence.
¶5 Accordingly, the district court’s April 4, 2013 order is
reversed.
20130391‐CA 2 2013 UT App 196