Hayes v. Intermountain

2018 UT App 223
THE UTAH COURT OF APPEALS
K IM HAYES AND NANCY HAYES,
Appellants,
v.
I NTERMOUNTAIN GEOE NVIRONMENTAL S ERVICES I NC .,
Appellee.
Opinion
No. 20180034-CA
Filed November 29, 2018
Second District Court, Farmington Department
The Honorable Glen R. Dawson
No. 170700693
Damian C. Smith, Attorney for Appellants
Anna Nelson, Attorney for Appellee
JUDGE GREGORY K. O RME authored this Opinion, in which
JUDGES JILL M. POHLMAN and R YAN M. HARRIS concurred.
ORME, Judge:
¶1 	Plaintiffs Kim and Nancy Hayes appeal the district court’s
dismissal 	of 	their 	claims 	against 	defendant 	Intermountain
GeoEnvironmental 	Services 	Inc. 	(IGES). 	IGES 	is 	one 	of
three 	defendants 	against 	whom 	the 	Hayeses 	brought
suit. In response to a motion brought by IGES pursuant to rule
54(b) 	of 	the 	Utah 	Rules 	of 	Civil 	Procedure, 	the 	district
court 	entered 	an 	order 	characterizing 	the 	previously
entered 	order 	of 	dismissal 	as 	“a 	final 	order, 	thus 	starting
[the] 	time 	for 	appeals should 	there 	be 	any, 	from 	the 	date
this 	Order 	is 	signed 	and 	entered.” 	Given 	the 	text 	of 	the
district 	court’s order, and 	in 	light 	of 	our Supreme 	Court’s
recent decisions in First National Bank v. Palmer, 2018 UT 43, 427
P.3d 1169, and Copper Hills Custom Homes, LLC v. Countrywide

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20180034-CA 	2 	2018 UT App 223
Bank, FSB, 2018 UT 56, 428 P.3d 1133 (amended opinion), we
have determined that we lack appellate jurisdiction and have no
choice but to dismiss this appeal.
¶2 	Because 	“acquiescence 	of 	the 	parties 	is 	insufficient
to confer jurisdiction on the court,” Palmer, 2018 UT 43, ¶ 6
(quotation 	simplified), 	“the 	initial 	inquiry 	of 	any 	court
should always be to determine whether the requested action
is within its jurisdiction,” Varian-Eimac, Inc. v. Lamoreaux, 767
P.2d 	569, 	570 	(Utah 	Ct. 	App. 	1989). 	As 	a 	general 	rule,
appellate courts obtain jurisdiction over an appeal only after
the district court issues “a final order or judgment that ends
the controversy between the litigants.” Copper Hills, 2018 UT 56,
¶ 10 (quotation simplified). This limit to appellate jurisdiction
“is 	often 	referred 	to 	as 	the 	final 	judgment 	rule.” 	Id.
(quotation simplified). An appeal brought pursuant to rule 54(b)
of 	the 	Utah 	Rules 	of 	Civil 	Procedure 	is 	one 	of 	the 	few
exceptions to this rule. See id. ¶¶ 13–15.
¶3 	For 	a 	nonfinal 	order 	to 	be 	properly 	certified
for 	appeal 	under 	rule 	54(b), 	first, 	“there 	must 	be 	multiple
claims for relief or multiple parties to the action;” second,
“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 third,
“the 	district 	court, 	in 	its 	discretion, 	must 	make 	an 	express
determination 	that 	there 	is 	no 	just 	reason 	for 	delay.” 	Id. 	¶ 16
(emphasis 	added) 	(quotations 	simplified). 	Additionally,
rule 	52(a) 	of 	the 	Utah 	Rules 	of 	Civil 	Procedure 	requires
that 	the 	district 	court 	“enter 	findings 	supporting 	the
conclusion 	that 	the 	certified 	orders 	are 	final.” 	Id. 	¶ 21
(quotation 	simplified). 	Those 	findings 	should, 	among 	other
things, 	“advance 	a 	rationale 	as 	to 	why” 	there 	is 	“no 	just
reason 	for 	delay.” 	Id. 	(quotation 	simplified). 	This 	is 	a
practical requirement because appellate courts “cannot review

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20180034-CA 	3 	2018 UT App 223
an order that does not offer the court enough findings and
conclusions to understand the district court’s reasoning.”1 Id.
¶ 27 (quotation simplified).
¶4 	Here, 	although 	its 	order 	was 	captioned 	“Order 	on
Defendant [IGES’s] Motion for Rule 54(b) Certification,” the
district court merely stated that its prior order of dismissal “is
deemed a final order, thus starting [the] time for appeals.” The
order, which was drafted by IGES’s counsel, failed to include
findings and the requisite express language that there is “no just
reason 	for 	delay.” 	See 	Palmer, 	2018 	UT 	43, 	¶ 13 	(quotation
simplified). Because the certification order did not satisfy rules
52(a) and 54(b), we reach the “unavoidable conclusion” that we
lack jurisdiction over this appeal. Id. ¶ 14.
¶5 	The inefficiency attending dismissal of a case that was
set for oral argument is regrettable. “Unfortunately, because
the final judgment rule is jurisdictional and not discretionary,
we are powerless to decide the merits of the appeal for the
sake of convenience.” Heartwood Home Health & Hospice LLC v.
Huber, 	2016 	UT 	App 	183, 	¶ 13 	n.4, 	382 	P.3d 	1074. 	When
an appellate court determines that it lacks appellate jurisdiction,
“it ‘retains only the authority to dismiss the action.’” Ramsay v.
Kane County Human Res. Special Service Dist., 2014 UT 5, ¶ 17,
322 P.3d 1163 (quoting Varian-Eimac, 767 P.2d at 570). Although
it is tempting to temporarily remand to the district court to enter
1. While a district court’s overall ruling on finality is reviewed
for correctness, the court’s specific determination that there is
“no just reason for delay”—the third criterion of rule 54(b)—is
reviewed for abuse of discretion. Copper Hills Custom Homes, LLC
v. Countrywide Bank, FSB, 2018 UT 56, ¶ 22 n.6, 428 P.3d 1133.

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20180034-CA 	4 	2018 UT App 223
a proper rule 54(b) certification, we lack the authority to do so.2
Accordingly, we dismiss this appeal.
2. While we do have the discretion to treat an improper rule
54(b) certification as a request for leave to take an interlocutory
appeal under rule 5(a) of the Utah Rules of Appellate Procedure,
such discretion is rarely exercised, cf. Chaparro v. Torero, 2018 UT
App 181, ¶ 28 (noting that purported appeals of right may be
treated as interlocutory appeals only in “extraordinary cases”
and that “[s]uch exceptional treatment cannot be justified merely
because the jurisdictional defect escaped earlier detection and
the appeal has progressed to a stage where dismissal would
constitute a significant waste of party and judicial resources”),
and we do not exercise that discretion here. As in Copper Hills,
there is no basis apparent on the record that leads us to conclude
that this “appeal may materially advance the termination of the
litigation.” Utah R. App. P. 5(c)(1)(D). See Copper Hills Custom
Homes, LLC v. Countrywide Bank, FSB, 2018 UT 56, ¶ 29 n.15, 428
P.3d 1133. Of course, either party may move the district court to
properly certify the order that is the subject of this dismissed
appeal in accordance with the strict mandates of rule 54(b) and
its jurisprudence. See Copper Hills, 2018 UT 56, ¶ 29 n.15. With
such certification, an appeal could then be properly taken from
the order of dismissal.