Dale K. Barker Co. v. Bushnell

2014 UT App 199_________________________________________________________
THE UTAH COURT OF APPEALS
DALE K. BARKER CO ., PC,
Plaintiff and Appellant,
v.
JOHN K. BUSHNELL AND BUSHNET , PC,
Defendants and Appellees.
Memorandum Decision
No. 20130255-CA
Filed August 21, 2014
Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 060909585
Shawn D. Turner, Attorney for Appellant
James C. Lewis, Attorney for Appellees
JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum
Decision, in which JUDGE GREGORY K. ORME and SENIOR JUDGE
RUSSELL W. BENCH concurred.1
CHRISTIANSEN, Judge:
¶1 John K. Bushnell hired Dale K. Barker Co., PC (Barker Co.)
to provide tax and accounting services for Bushnell and his
company, Bushnet, PC (collectively, Bushnell). The services
contract between Bushnell and Barker Co. included an attorney-
fees provision stating that in the event of a breach, the “non-
defaulting party shall be entitled to all costs and attorneys’ fees
1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11-201(6).
Dale K. Barker Co. v. Bushnell
incurred in enforcing this Agreement.” When Bushnell allegedly
failed to pay Barker Co. as agreed under the contract, Barker Co.
sued Bushnell for breach of contract. Bushnell counterclaimed
against Barker Co. for breach of contract and negligence. Bushnell
also filed a third-party complaint against Dale Barker in his
individual capacity, alleging that Barker Co. was Barker’s alter ego,
and seeking to hold Barker personally liable for any judgment
entered against Barker Co.
¶2 Dale Barker moved for a directed verdict on the third-party
complaint during the bench trial on April 3, 2008. The district court
granted Barker’s motion. Barker submitted a request for attorney
fees and costs incurred in defending against the third-party
complaint, but the district court denied his request. After trial, the
district court dismissed Bushnell’s negligence counterclaim, found
against Barker Co. on its breach-of-contract claim, and entered
judgment in favor of Bushnell on its breach-of-contract
counterclaim. Bushnell subsequently submitted a request for
attorney fees and costs, which the district court granted.
¶3 Dale Barker appealed the district court’s denial of his
request for fees and costs that he incurred in defending against the
third-party complaint. Dale K. Barker Co. v. Bushnell, 2009 UT App
385, ¶ 1, 222 P.3d 1188. This court affirmed the district court’s
denial of Barker’s request. Id. ¶ 10. Our supreme court later
affirmed the denial of Barker’s requested attorney fees, but
reversed as to costs. Bushnell v. Barker, 2012 UT 20, ¶ 1, 274 P.3d
968.
¶4 Barker Co. separately appealed the district court’s award of
fees and costs to Bushnell. Dale K. Barker Co. v. Bushnell, 2010 UT
App 189, ¶ 15, 237 P.3d 903. This court reversed the district court’s
award of fees and costs and remanded with instructions that the
district court should “carefully examine the fees requested and
reject any fees for claims in which Bushnell was not successful, i.e.,
his negligence counterclaim and his third-party complaint.” Id.Additionally, we instructed the court to “make adequate findings
20130255-CA 2 2014 UT App 199Dale K. Barker Co. v. Bushnell
of fact to support its attorney fee award and the reasonableness of
that award.” Id. We gave similar instructions regarding costs, and
we authorized a partial award of fees incurred on appeal. Id.¶¶ 18–19. The supreme court declined to review that decision.
Barker v. Bushnell, 245 P.3d 757 (Utah 2010) (denying petition for
writ of certiorari).
¶5 After this court’s remand and purportedly consistent with
our instructions, the district court entered an amended order for
attorney fees and costs in favor of Bushnell in November 2011. The
court also concluded that Bushnell was entitled to additional
attorney fees and costs incurred as of December 2010. In response,
Bushnell filed another request for attorney fees and costs, which
the court granted in an order entered May 14, 2012. This May 2012
order was the final order resolving all issues pertaining to attorney
fees in this case, as reflected by express language to that effect in
the court’s order. However, the district court referenced the
supreme court’s decision regarding Dale Barker’s costs stemming
from the third-party complaint, see Bushnell, 2012 UT 20, ¶ 19,
stating in the May 2012 order, “If [Dale Barker] desires a
determination on costs . . . please submit[] or resubmit those costs
and file a Notice to Submit so the Court may determine the same.”
Barker subsequently filed a request for his costs, and the district
court awarded them on February 6, 2013.
¶6 Barker Co. filed a notice of appeal on March 6, 2013. In its
notice of appeal, Barker Co. asserted that the final order entered in
this case was the district court’s February 2013 order awarding
costs to Dale Barker. However, Barker Co.’s notice of appeal
indicates that it appealed only from the November 2011 amended
order and the May 2012 order, both of which awarded attorney
fees and costs to Bushnell. Barker Co. requests that we either vacate
or modify the November 2011 and May 2012 orders, arguing that
after remand Bushnell improperly categorized the attorney fees in
its fees affidavit submitted to the district court and that some of the
fees requested by Bushnell were unreasonable. Barker Co. makes
a similar argument with regard to the costs awarded to Bushnell.
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¶7 Bushnell argues that Barker Co. failed to timely file its
appeal pursuant to rule 4 of the Utah Rules of Appellate Procedure
and that we therefore lack jurisdiction and must dismiss Barker
Co.’s appeal. “Whether this court has jurisdiction to hear an appeal
is a question of law.” Pearson v. South Jordan Emp. Appeals Bd., 2009
UT App 204, ¶ 8, 216 P.3d 996 (citation and internal quotation
marks omitted). Because jurisdiction is a threshold issue, we must
address it before considering the merits of Barker Co.’s appeal. See
id.¶8 “An appeal may be taken from a district . . . court to the
appellate court with jurisdiction over the appeal from all final
orders and judgments . . . .” Utah R. App. P. 3(a) (emphasis added).
A party wishing to appeal from a final order or judgment must file
its notice of appeal “within 30 days after the date of entry of the
judgment or order.” Id. R. 4(a). Generally, if a party files its notice
of appeal after the thirty-day period has expired, the appeal “is not
timely filed” and “this court lacks jurisdiction.” Foster v.
Montgomery, 2003 UT App 405, ¶ 14, 82 P.3d 191 (citation and
internal quotation marks omitted). But see Utah R. App. P. 4(b)
(listing the motions that would extend the date for filing a notice of
appeal). “When a matter is outside [a] court’s jurisdiction it retains
only the authority to dismiss the action.” Varian–Eimac, Inc. v.
Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989).
¶9 For an order or judgment to be considered final, it “must
end the controversy between the litigants” or, “[i]n other
words, . . . the trial court’s decision must dispose of the claims of all
parties.” Loffredo v. Holt, 2001 UT 97, ¶ 12, 37 P.3d 1070. In the
context of attorney fees, our supreme court has held that “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.” ProMax Dev.
Corp. v. Raile, 2000 UT 4, ¶ 15, 998 P.2d 254. However, the same is
not true for an award of costs: In Beddoes v. Giffin, the supreme
court explained that although “disputes as to attorney fees must be
20130255-CA 4 2014 UT App 199Dale K. Barker Co. v. Bushnell
resolved in order to have a final judgment for appeal, . . . disputes
as to court costs need not.” 2007 UT 35, ¶ 11, 158 P.3d 1102. The
court continued,
The question before us in this case is whether a
motion for an award of costs filed after the entry of
judgment delays the entry of judgment for purposes
of appeal until the motion is resolved. . . . [T]he
answer is no. Only material matters that affect the
substance and character of a judgment must be
resolved before a judgment is final. Court costs and
other matters clerical in nature are not material and
do not need to be resolved for a judgment to be final
for the purposes of an appeal.
Id. ¶ 12.
¶10 Here, the district court’s May 2012 order disposed of the last
remaining attorney-fees claim in this case. By this point, all other
“material matters” had been resolved, including all substantive
claims and attorney-fees issues stemming from the underlying
litigation, attorney-fees issues stemming from fees incurred during
the several appeals taken in this case, and the recalculation of
Bushnell’s fees after remand. As of May 14, 2012, the only
outstanding issue in this case was the calculation of Dale Barker’s
court costs that he incurred in defending against the third-party
complaint. However, “[c]ourt costs . . . are not material and do not
need to be resolved for a judgment to be final for the purposes of
an appeal.” Id. Accordingly, the May 2012 order effectively
“end[ed] the controversy between the litigants,” see Loffredo, 2001
UT 97, ¶ 12, and thus the district court correctly identified that
order as final. Although the court awarded Dale Barker his costs in
February 2013, the final order in this case for purposes of
determining our jurisdiction over Barker Co.’s appeal is the May
2012 order. Because Barker Co. did not file its notice of appeal until
March 6, 2013—more than thirty days after entry of the May 2012
order—or file any motion that would have extended the time for
20130255-CA 5 2014 UT App 199Dale K. Barker Co. v. Bushnell
appeal, Barker Co.’s appeal is not timely filed. See Foster, 2003 UT
App 405, ¶ 14. We therefore lack jurisdiction and must dismiss. See
Varian–Eimac, Inc., 767 P.2d at 570.
¶11 Appeal dismissed.
20130255-CA 6 2014 UT App 199