Smith v. Osguthorpe

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).
2014 UT App 182
_________________________________________________________
THE UTAH COURT OF APPEALS
ENOCH RICHARD SMITH,
Plaintiff,
v.
D.A. OSGUTHORPE AND D.A. OSGUTHORPE FAMILY PARTNERSHIP,
Defendants and Appellants,
and
ASC UTAH, INC.,
Garnishee Defendant and Appellee,
and
STEPHEN A. OSGUTHORPE AND D.A. OSGUTHORPE,
Interpleaded Garnishee Defendants and Appellants.
Memorandum Decision
No. 20130037-CA
Filed July 31, 2014
Third District Court, Salt Lake Department
The Honorable L.A. Dever
No. 980911302
David W. Scofield and David Bernstein, Attorneys
for Appellants
John R. Lund and Kara L. Pettit, Attorneys
for Appellee
JUDGE GREGORY K. ORME authored this Memorandum Decision,
in which JUDGE JAMES Z. DAVIS and SENIOR JUDGE RUSSELL W.
BENCH concurred.1

Smith v. Osguthorpe
20130037-CA 2 2014 UT App 182
ORME, Judge:
¶1 Pursuant to a garnishment order obtained by plaintiff Enoch
Richard Smith, the details of which are not relevant to the
jurisdictional question before us, ASC Utah, Inc. (ASC) deposited
with the trial court $200,000 that it owed to the Osguthorpes. When
the Osguthorpes made full payment of the judgment against them
and in favor of Smith, they moved to vacate the garnishment order.
The trial court granted the motion. The court, however, determined
that it would continue to hold ASC’s $200,000 pending the
resolution of a separate case between ASC and the Osguthorpes.
That dispute was resolved when the judge assigned to that case
ruled that ASC owed no money to the Osguthorpes. The trial court
here then granted ASC’s motion to return its $200,000. The
Osguthorpes appeal the trial court’s decision to release the funds
to ASC, arguing that the decision was incorrect under principles of
res judicata and judicial estoppel.
¶2 We do not reach the merits of the Osguthorpes’ appeal
because it was not taken from a final order or judgment. The losing
party in a legal proceeding may appeal, as a matter of right, only
from “final orders and judgments.” Utah R. App. P. 3(a). “[A]
judgment is final when it ‘ends the controversy between the parties
litigant.’” Bradbury v. Valencia, 2000 UT 50, ¶ 9, 5 P.3d 649 (quoting
Kennedy v. New Era Indus., Inc., 600 P.2d 534, 536 (Utah 1979)). The
court’s decision merely requiring the return of funds paid into
court by ASC did not resolve any substantive controversy between
ASC and the Osguthorpes. Thus, the appeal taken by the
Osguthorpes was not from a final judgment, and we lack
jurisdiction over the appeal on that basis.
¶3 As a matter of discretion, this court may permit
interlocutory appeals—appeals from orders and judgments that are
not final—but only upon granting a well-taken petition for
permission to appeal. See Utah R. App. P. 5(a). Alternatively, if the
trial court properly certifies an otherwise interlocutory order as
final, in accordance with rule 54(b) of the Utah Rules of Civil

Smith v. Osguthorpe
20130037-CA 3 2014 UT App 182
Procedure, an appeal may be taken from that order. The
Osguthorpes have not filed a petition under rule 5(a) of the Utah
Rules of Appellate Procedure asking for permission to appeal. And
the trial court’s order in this case was not certified as final under
rule 54(b). Thus, neither of these avenues is available in this case to
vest us with jurisdiction over the appeal.
¶4 In view of the foregoing, we do not have jurisdiction to
further consider this appeal. Accordingly, the appeal is dismissed.
See Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App.
1989) (“When a matter is outside the court’s jurisdiction it retains
only the authority to dismiss the action.”).