Clark v. Archer

2010 UT 57
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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James D. Clark, in his capacity No. 20090309
as Personal Representative for
the Estate of Dale D. Clark,
Plaintiffs and Respondents,
v.
Mark B. Archer, and F I L E D
Bonneville Superior Title,
Defendants and Petitioner. October 5, 2010
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Second District, Layton
The Honorable Thomas L. Kay
No. 060601640
Attorneys: Jeffery S. Williams, Jed K. Burton, Salt Lake City,
for plaintiffs
B. Ray Zoll, Micah Bruner, Salt Lake City,
for defendant
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On Certiorari to the Utah Court of Appeals
DURHAM, Chief Justice:
INTRODUCTION
¶1 This case involves a previous, unsuccessful petition
for interlocutory appeal of a judgment certified as final under
rule 54(b) of the Utah Rules of Civil Procedure. The
interlocutory petition was denied by the court of appeals in
2008, and many months later, the Appellant (Mr. Archer) attempted
to appeal the same issues (this time as an appeal as of right) at
the conclusion of the trial in the district court. The court of
appeals held that it lacked jurisdiction to hear the second
appeal, because it was untimely as to the previously certified
issues. The court of appeals also held that by failing to bring
a timely appeal as of right, Mr. Archer had waived his argument
that the judgment was improperly certified under rule 54(b).
Because a plain reading of the relevant rules requires an
appellant to bring an appeal as of right within thirty days of
final judgment, we affirm the court of appeals’ decision.
BACKGROUND

No. 20090309 2
¶2 In the midst of a civil case involving various causes
of action, the district court issued a “Final Judgment” on March
10, 2008, granting summary judgment on one cause of action. The
district court certified its ruling as final under rule 54(b) of
the Utah Rules of Civil Procedure, stating: “the Court expressly
finds no just reason exists to delay the entry of a final
judgment.”
¶3 Rather than filing an appeal as of right from the
certified order, Mr. Archer filed a petition for interlocutory
appeal with this court on March 31, 2008. We transferred the
matter to the court of appeals for disposition, and that court
denied the petition on April 25, 2008.
¶4 Months later, the district court dismissed all
remaining claims in the underlying case. Mr. Archer then filed a
direct appeal to this court on the same issues he had earlier
raised in the petition for interlocutory appeal. Once again, we
transferred the matter to the court of appeals.
¶5 The court of appeals held that Mr. Archer was
challenging a ruling that had been certified as final under rule
54(b) of the Utah Rules of Civil Procedure in March 2008, and
therefore he was well beyond the thirty-day limit for filing a
direct appeal. See Utah R. App. P. 4(a). Because Mr. Archer’s
appeal was not timely filed, the court of appeals held that it
lacked jurisdiction to hear the appeal. The court of appeals
also held that Mr. Archer had waived his argument that the
summary judgment order was not properly certified as final under
rule 54(b) by failing to timely file a direct appeal.
¶6 We granted the petition for writ of certiorari to
consider whether the court of appeals erred in dismissing the
appeal for lack of jurisdiction, and whether Mr. Archer had
waived the opportunity to challenge the propriety of a rule 54(b)
certification in connection with his appeal.
¶7 We have jurisdiction over this matter under Utah Code
section 78A-3-102(3)(a).
STANDARD OF REVIEW
¶8 “On certiorari, we review the court of appeals’
decision for correctness.” Magana v. Dave Roth Constr., 2009 UT
45, ¶ 19, 215 P.3d 143.

3 No. 20090309
ANALYSIS
I. WHEN A JUDGMENT IS CERTIFIED AS FINAL UNDER RULE 54(b)
OF THE UTAH RULES OF CIVIL PROCEDURE, AN APPELLANT
MUST FILE AN APPEAL AS OF RIGHT UNDER RULES 3 AND 4
OF THE UTAH RULES OF APPELLATE PROCEDURE
¶9 When interpreting procedural rules, we use our general
rules of statutory construction. Arbogast Family Trust v. River
Crossings, LLC, 2010 UT 40, ¶ 18, __ P.3d __. Thus we begin by
looking at the plain language of the relevant procedural rules.
Burns v. Boyden, 2006 UT 14, ¶ 19, 133 P.3d 370. If a rule’s
language is clear and unambiguous, analysis of the rule’s meaning
ends. See State ex rel. Z.C., 2007 UT 54, ¶ 11, 165 P.3d 1206.
Rule 54(b) of the Utah Rules of Civil Procedure provides in part:
When more than one claim for relief is
presented in an action, . . . and/or when
multiple parties are involved, the court may
direct the entry of a final judgment as to
one or more but fewer than all of the claims
or parties only upon an express determination
by the court that there is no just reason for
delay and upon an express direction for the
entry of judgment.
The rule plainly authorizes the district court to enter a final
judgment on a subset of claims or for a subset of parties under
certain conditions. Here, although Mr. Archer argues that the
district court erred in certifying the judgment as final, there
is no dispute that the district court did so expressly. Because
the judgment was entered as final, rules 3 and 4 of the Utah
Rules of Appellate Procedure clearly apply. Those two rules are
respectively entitled “Appeal as of right: how taken,” and
“Appeal as of right: when taken.” The rules begin with the words
“Filing appeal from final orders and judgments” and “Appeal from
final judgment and order,” respectively. Utah R. App. P. 3(a),
4(a). These rules provide the procedural mechanism for a party
to appeal a final order. When a district court has entered a
final judgment, parties to the litigation are bound to follow the
procedural requirements of these two rules in seeking appellate
review.
¶10 To further clarify matters, rule 5, which deals with
discretionary appeals from interlocutory orders, states in part
that:
A timely appeal from an order certified under
rule 54(b), Utah Rules of Civil Procedure,
that the appellate court determines is not

No. 20090309 4
final may, in the discretion of the appellate
court, be considered by the appellate court
as a petition for permission to appeal an
interlocutory order. The appellate court may
direct the appellant to file a petition that
conforms to the requirements of paragraph (c)
of this rule [which outlines the required
contents of a petition for permission to
appeal].
Utah R. App. P. 5(a) (emphases added). This rule gives the
appellate court discretion to treat an appeal as of right from an
erroneously certified rule 54(b) judgment as a petition for
permission for interlocutory appeal. The fact that this decision
is in “the discretion of the appellate court” and that “[t]he
appellate court may direct the appellant” to conform to the
requirements of petitions for interlocutory appeal clearly
assumes that a rule 54(b) appeal properly begins as an appeal as
of right, notwithstanding any concerns about the correctness of
the certification. Indeed, this rule anticipates the precise
situation in which Mr. Archer finds himself: wanting to appeal a
rule 54(b) order that he believes was improperly certified as
final. Therefore, under the plain language of the relevant
rules, Mr. Archer should have filed an appeal as of right,
including in the appeal an argument urging the appellate court to
treat it as an interlocutory appeal if the court were to
determine it to be non-final.
II. THE COURT OF APPEALS DID NOT HAVE JURISDICTION TO CONSIDER
MR. ARCHER’S SECOND APPEAL OF THE RULE 54(b) JUDGMENT
¶11 Mr. Archer makes two alternative arguments regarding
why the court of appeals should have held it had jurisdiction to
consider the second appeal. For the reasons described below, we
affirm the court of appeals’ decision that it lacked
jurisdiction.
A. Mr. Archer’s Interlocutory Appeal Cannot Be Deemed Sufficient
Notice of a Direct Appeal From a Rule 54(b) Order
¶12 Mr. Archer has argued that we should consider his
petition for an interlocutory appeal of the rule 54(b) final
judgment filed in March 2008 as timely notice of an appeal as of
right under rules 3 and 4 of the Utah Rules of Appellate
Procedure. He relies on the reasoning of Cedar Surgery Center.,
L.L.C. v. Bonelli, a case involving a dispute over whether a
petition for interlocutory appeal was proper. 2004 UT 58, ¶ 9,
96 P.3d 911. In that case there was no rule 54(b) certification,
and this court declined to decide if the district court’s order
was final or not. We held that we had jurisdiction over the

5 No. 20090309
appeal in any case, because the interlocutory petition gave
timely notice under rules 3 and 4 of the Utah Rules of Appellate
Procedure. Id. ¶¶ 10-12.
¶13 We now hold that the rationale of Cedar Surgery Center
does not apply when a district court has expressly certified a
rule 54(b) judgment as final. Such presumptively final judgments
provide clear direction to an appellant as to the proper
procedures to follow under rules 3 and 4 of the Utah Rules of
Appellate Procedure. These rules required Mr. Archer to file an
appeal as of right (as explained in section part I of this
opinion), even if he disputed the propriety of the rule 54(b)
certification. His failure to do so cannot be corrected by the
erroneous filing of a petition for interlocutory appeal. It is
not unreasonable to require attorneys to correctly apply clear
and unambiguous procedural rules. See Lowry v. McDonnell Douglas
Corp., 211 F.3d 457, 464 (8th Cir. 2000) (“[E]xperienced
counsel’s misapplication of clear and unambiguous procedural
rules cannot excuse his failure to file a timely notice of
appeal.”).
¶14 Because Mr. Archer’s second appeal of this judgment was
filed well beyond the thirty days allowed for an appeal as of
right, the court of appeals was correct in holding that it did
not have jurisdiction to consider it. See Prowswood, Inc. v.
Mountain Fuel Supply Co., 676 P.2d 952, 955 (Utah 1984)(“It is
axiomatic in this jurisdiction that failure to timely perfect an
appeal is a jurisdictional failure requiring dismissal of the
appeal.”) superseded in part by procedural rule on other grounds,
Utah R. App. P. 3, as recognized in Dipoma v. McPhie, 2000 UT App
130, ¶ 14, 1 P.3d 564.
B. The Court of Appeals Did Not Retain Jurisdiction to
Consider Whether the Rule 54(b) Certification was Proper
¶15 Alternatively, Mr. Archer argues that the rule 54(b)
certification in this case was erroneous, and therefore the
appeal clock should not begin to run from the time of that
certification. Jurisdictions differ on how to handle this issue.
For example, the Tenth Circuit has held that if a judgment is
improperly certified as final, the appeal clock will not begin
running at the time of certification, because the judgment is not
actually “final.” See Weinman v. Fid. Capital Appreciation Fund
(In re Integra Realty Res., Inc.), 262 F.3d 1089, 1107-08 (10th
Cir. 2001). In contrast, the Ninth Circuit maintains that “[a]
[r]ule 54(b) determination, right or wrong, starts the time for
appeal running. This avoids uncertainty for counsel about when
to appeal.” Lindsay v. Beneficial Reinsurance Co. (In re
Lindsay), 59 F.3d 942, 951 (9th Cir. 1995) (emphasis added).

No. 20090309 6
¶16 We agree with the reasoning of Lindsay that “[a] rule
54(b) judgment does not give the prospective appellant an
election to appeal at that time or later, when the entire case is
over.” Id. We make no judgment as to whether the district
court’s rule 54(b) certification was proper in Mr. Archer’s case,
but hold that, right or wrong, the certification started the
appeal clock running. This approach provides clarity for counsel
on when to appeal and gives proper presumptive deference to the
orders of trial courts. It does not leave counsel without
remedy, since the appellate court has the discretion to find a
rule 54(b) certification improper on review, and may dismiss an
appeal on those grounds, or treat the appeal as a petition for
interlocutory appeal. See id.; see also Utah R. App. P. 5. But
it is counsel’s responsibility to raise that argument in an
appeal as of right within the time allowed for direct appeal from
a presumptively final order. See Utah R. App P. 4(a).
¶17 Because Mr. Archer did not file an appeal as of right
within the time allowed after the rule 54(b) certification, the
court of appeals correctly determined that he waived the
opportunity to argue that the rule 54(b) certification was
improper. See Lindsay 59 F.3d at 951 (“Untimely notice of appeal
is a jurisdictional defect . . . .”); Serrato v. Utah Transit
Auth., 2000 UT App. 299, ¶ 7, 13 P.3d 616 (“If an appeal is not
timely filed, this court lacks jurisdiction to hear the
appeal.”).
CONCLUSION
¶18 Mr. Archer failed to file an appeal as of right from a
final judgment certified under rule 54(b) of the Utah Rules of
Civil Procedure in the time allowed under rule 4 of the Utah
Rules of Appellate Procedure. His attempt to obtain
interlocutory review of that judgment did not serve as a
substitute for a timely appeal as of right. Because his second
appeal of the order was untimely, the court of appeals lacked
jurisdiction to hear the appeal. Accordingly, we affirm.
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¶19 Associate Chief Justice Durrant, Justice Parrish,
Justice Nehring, and Judge Atherton concur in Chief Justice
Durham’s opinion.
¶20 District Judge Judith S. Atherton sat.