Berg v. Richards Brandt Miller Nelson

2016 UT App 16THE UTAH COURT OF APPEALS
DARRIN BERG,
Appellant,
v.
RICHARDS BRANDT MILLER NELSON,
Appellee.
Per Curiam Decision
No. 20150974-CA
Filed January 22, 2016
Third District Court, Salt Lake Department
The Honorable Andrew H. Stone
No. 120907963
S. Baird Morgan, Attorney for Appellant
Lynn S. Davies and Russell C. Fericks, Attorneys
for Appellee
Before JUDGES STEPHEN L. ROTH, MICHELE M. CHRISTIANSEN, and
KATE A. TOOMEY.
PER CURIAM:
¶1 Appellant Darrin Berg, individually and on behalf of the
heirs of Diane Berg, (Berg) appeals the district court’s October
19, 2015 order granting Appellee Richards Brandt Miller Nelson
(RBMN) permission to intervene to enforce an attorney lien and
the district court’s ruling announced on November 6, 2015, and
entered on November 23, 2015, which denied reconsideration
under rule 60(b) of the Utah Rules of Civil Procedure. This
matter is before the court on RBMN’s motion for summary
dismissal for lack of jurisdiction and on Berg’s cross-motion for
summary reversal. Because we dismiss the appeal for lack of
jurisdiction, we do not consider Berg’s cross-motion.
¶2 This court does not have jurisdiction to consider an
appeal unless it is taken from a final judgment or qualifies for an
Berg v. Richards Brandt Miller Nelson
exception to the final judgment rule. See Loffredo v. Holt, 2001 UT
97, ¶¶ 10, 37 P.3d 1070. An order is final only if it disposes of the
case as to all parties and “finally dispose*s+ of the subject-matter
of the litigation on the merits of the case.” Bradbury v. Valencia,
2000 UT 50, ¶ 9, 5 P.3d 649 (citation and internal quotation marks
omitted). Utah appellate courts recognize a limited exception to
the final judgment rule for an appeal of an order denying a
motion to intervene. See Millard County v. Utah State Tax Comm’n,
823 P.2d 459, 461 (Utah 1991) (“*A+n order denying a motion to
intervene is a final disposition of the claims asserted by the
applicant for intervention and is appealable.”). In contrast, the
grant of a motion to intervene is an interlocutory order that is
not appealable as a matter of right. See State v. Bosh, 2011 UT 60,
¶ 4, 266 P.3d 788 (considering the grant of intervention under
rule 24 of the Utah Rules of Civil Procedure as an interlocutory
appeal). Berg neither timely sought nor obtained permission to
appeal the October 19, 2015 order by filing a petition for
permission to appeal from an interlocutory order under rule 5 of
the Utah Rules of Appellate Procedure.
¶3 Berg also sought reconsideration of the interlocutory
order granting RBMN’s motion to intervene in a motion that was
styled as a motion to set aside a judgment under rule 60(b) of the
Utah Rules of Civil Procedure. The assertion that the district
court’s denial of the purported rule 60(b) motion was final and
appealable lacks merit because the motion itself sought
reconsideration of an interlocutory order. See Timm v. Dewsnup,
851 P.2d 1178, 1185 (Utah 1993) (allowing a motion to reconsider
a nonfinal judgment because it is subject to revision prior to the
entry of final judgment). Therefore, denial of the motion to
reconsider was also not a final, appealable judgment.1
1. In addition to filing this appeal, Berg also simultaneously
pursued a motion to dismiss RBMN’s complaint in intervention
in the district court.
20150974-CA 2 2016 UT App 16Berg v. Richards Brandt Miller Nelson
¶4 This appeal is not taken from a final, appealable order
because the order Berg seeks to appeal granted intervention in
the underlying action to allow RBMN to pursue its claim in the
district court based upon a statutory attorney lien. Berg’s
reliance on United Nuclear Corp. v. Cranford Insurance Co., 905
F.2d 1424 (10th Cir. 1990), for an assertion that the grant of
RBMN’s motion to intervene is appealable is misplaced. In that
case, the Tenth Circuit Court of Appeals stated, “Although most
orders granting intervention . . . are interlocutory and not
immediately appealable, intervention here was solely for the
purposes of seeking modification of the protective order; the
underlying controversy had already been concluded.” Id. at
1426. On that basis, the federal appeals court concluded that an
order allowing intervention and a related order modifying the
protective order were appealable, “either as final orders or
collateral orders.” Id. (citations omitted). Berg’s attempt to
characterize the intervention order in this case as occurring after
the underlying case was concluded lacks merit. RBMN moved to
intervene in the case in September 2015 pursuant to Utah Code
section 38-2-7, which allows an attorney to “enforce a lien . . . by
moving to intervene in a pending legal action . . . in which the
attorney has assisted or performed work.” Utah Code Ann. § 38-
2-7(4) (LexisNexis 2010). The district court granted the motion to
intervene in an October 19, 2015 order, and the judgment entered
on October 28, 2015, is not final and is subject to the pending
proceedings to resolve the attorney lien issues. Furthermore, to
the extent that the United Nuclear case was premised on the
collateral order doctrine, we note that Utah courts have rejected
the applicability in Utah appellate practice of the collateral order
doctrine. See generally Tyler v. Department of Human Servs., 874
P.2d 119 (Utah 1994) (per curiam); In re Southern Am. Ins. Co., 930
P.2d 276 (Utah Ct. App. 1996); Merit Elec. & Instrumentation v.
Utah Dep’t of Commerce, 902 P.2d 151 (Utah Ct. App. 1995).
¶5 Berg claims that several Utah cases have reviewed
intervention orders as final, appealable orders, but the cited
cases do not support that claim. While each involves a claim for
attorney fees, none of the cited cases are appeals taken from an
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order granting intervention. Fisher v. Fisher, 2003 UT App 91, 67
P.3d 1055, was an appeal from a final order allowing an attorney
lien to attach to a judgment for past-due child support. This
court held that “the trial court had no jurisdiction to enforce
[the] attorney lien” where the attorney “did not intervene and,
consequently, was not a party to the divorce action.” Id. ¶ 19; see
also id. ¶ 3 n.2. Similarly, Phillips v. Smith, 768 P.2d 449 (Utah
1989), was also an appeal from a final order enforcing an
attorney lien against settlement proceeds where there was no
intervention order. Bay Harbor Farm, LC v. Sumsion, 2014 UT App
133, 329 P.3d 46, was an appeal from a final appealable order
nullifying an attorney lien recorded against real property as a
wrongful lien. McDonald v. McDonald, 866 P.2d 1253 (Utah Ct.
App. 1993), was not an appeal of an intervention order, and this
court reversed a final judgment requiring payment of a fee
award directly to a nonparty attorney.
¶6 In sum, the order granting RBMN’s motion to intervene
and the later denial of a motion to reconsider that order are each
interlocutory. The underlying case remains pending in the
district court on proceedings related to RBMN’s assertion of an
attorney lien. Because the appeal is not taken from a final
appealable order, we lack jurisdiction over the appeal and must
dismiss it. See Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570
(Utah Ct. App. 1989).
¶7 Accordingly, we dismiss the appeal without prejudice to
the filing of a timely appeal after the entry of a final, appealable
order or judgment. We do not consider the cross-motion for
summary reversal because we lack jurisdiction to do so. We
deny RBMN’s request for an award of attorney fees and costs
pursuant to rule 33 of the Utah Rules of Appellate Procedure.
Our denial is without prejudice to the power of the district court
to enter an award of attorney fees in the pending case on any
appropriate basis.
20150974-CA 4 2016 UT App 16