Ortiz v. Crowther

2017 UT App 133

THE UTAH COURT OF APPEALS

DANIEL ORTIZ,
Appellant,
v.
SCOTT CROWTHER,
Appellee.

Memorandum Decision
No. 20170337-CA
Filed July 28, 2017

Third District Court, Salt Lake Department
The Honorable Laura Scott
No. 160905458

Daniel Ortiz, Appellant Pro Se
Sean D. Reyes and Brent A. Burnett, Attorneys
for Appellee

Before JUDGES GREGORY K. ORME, J. FREDERIC VOROS JR., and
DAVID N. MORTENSEN.

PER CURIAM:

¶1 This matter is before the court on its own motion.
Appellant Daniel Ortiz seeks to appeal the trial court’s order
granting summary judgment in favor of Scott Crowther and
dismissing Ortiz’s complaint. Ortiz filed a notice of appeal while
a motion to alter or amend the judgment pursuant to rule 59 of
the Utah Rules of Civil Procedure was pending. Although this
court notified Ortiz that his appeal would not move forward
until the rule 59 motion was decided, the trial court determined
it lacked jurisdiction to consider the motion because of “the
general rule that the trial court is divested of jurisdiction over a
case while it is under advisement on appeal.” Cheves v. Williams,
1999 UT 86, ¶ 45, 993 P.2d 191.
Ortiz v. Crowther

¶2 The trial court’s ruling is incorrect. A timely notice of
appeal does transfer jurisdiction from the trial court to the
appellate court “for most matters in the case.” Garver v.
Rosenberg, 2015 UT 39, ¶ 10, 347 P.3d 380. However, the Utah
Supreme Court has recognized exceptions to the general rule
that a trial court is divested of jurisdiction upon the filing of an
appeal, noting that the trial court may continue to act “in the
interest of preventing unnecessary delay, where any action by
the trial court is not likely to modify a party’s rights with respect
to the issues raised on appeal, or where the action by the trial
court is authorized by rule or statute.” Cheves, 1999 UT 86, ¶ 45.
For example, the trial court is authorized by rule to consider
whether to stay a judgment in a case pending on appeal, see Utah
R. App. P. 8, and is authorized by statute to determine whether a
litigant is entitled to a waiver of the filing fee on appeal. See Utah
Code Ann. §§ 78A-2-304, -305 (LexisNexis 2012).

¶3 Additionally, to transfer jurisdiction to the appellate
court, the notice of appeal must be timely. See Garver, 2015 UT
39, ¶ 10. “To be timely, a notice of appeal cannot be filed too late,
but it also cannot be filed too early.” Id. “[A] premature notice of
appeal does not effectuate a transfer of jurisdiction to review the
merits of a case.” Id. ¶ 15.

¶4 In this instance, Ortiz filed a motion to alter or amend the
judgment pursuant to rule 59. Rule 4(b) of the Utah Rules of
Appellate Procedure provides that if a party timely files any one
of the enumerated post-judgment motions, the time to file a
notice of appeal “runs from the entry of the order disposing of
the motion.” Utah R. App. P. 4(b). A motion to alter or amend a
judgment filed under rule 59 is one of the motions listed in rule
4(b) that will toll the time to file the notice of appeal until after
the post-judgment motion is decided. Accordingly, the time for
Ortiz to appeal has not started running because his motion
remains pending in the trial court.

20170337-CA 2 2017 UT App 133
Ortiz v. Crowther

¶5 A notice of appeal filed after the entry of judgment but
before the entry of an order disposing of any of the motions
listed in rule 4(b), as happened in this case, will be “treated as
filed after entry of the order” resolving the motion. Id. R. 4(b)(2).
Ortiz’s notice of appeal falls within this time frame. He filed it
after the entry of judgment but before the trial court decided his
rule 59 motion—indeed, the motion has not yet been decided.
His notice of appeal is not yet effective to transfer plenary
jurisdiction over the case to this court; it remains essentially on
hold until the trial court rules on his motion. As a result, the trial
court retains jurisdiction to consider Ortiz’s rule 59 motion, and,
indeed, must resolve the motion before Ortiz’s appeal can go
forward.1

¶6 Accordingly, it is hereby ordered that the trial court shall
resolve Ortiz’s motion to alter or amend the judgment and enter
an appropriate order. The trial court shall promptly forward the
order to this court to perfect jurisdiction on appeal.

1. The trial court also characterized Ortiz’s motion as “effectively
a Motion to Reconsider.” However, the motion was captioned as
a Motion to Alter or Amend the Judgment and expressly
invoked rule 59. On its face, the motion was sufficient to fall
within rule 4(b) of the Utah Rules of Appellate Procedure. See
B.A.M. Dev., LLC v. Salt Lake County, 2012 UT 26, ¶ 13, 282 P.3d
41.

20170337-CA 3 2017 UT App 133