Daniel V. Irvin v. State of Utah

2006 UT 75
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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State of Utah, in the interest of No. 20050775
S.M., K.K., A.K., M.K., M.K., J.K.,
J.K., K.K., M.K., R.K., and L.K.,
persons under eighteen years
of age.
___________________________________
Daniel V. Irvin,
Appellant,
v.
F I L E D
State of Utah,
Appellee. December 5, 2006
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Third District, Salt Lake
The Honorable Scott N. Johansen
No. 501351
Attorneys: Mark L. Shurtleff, Att’y Gen., Carol L.C. Verdoia,
John M. Peterson, Asst. Att’ys Gen., Salt Lake City,
for appellee
Daniel V. Irvin, Salt Lake City, for appellant
Martha Pierce, Kristin G. Brewer, Salt Lake City,
Guardians ad Litem
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On Certification from the Utah Court of Appeals
WILKINS, Associate Chief Justice:
¶1 This case involves the appeal of rule 11 sanctions
ordered by the juvenile court against attorney Daniel Irvin.
Because it arises from a non-final order and does not qualify for
an exception to the final judgment rule, we dismiss for lack of
jurisdiction.
BACKGROUND
¶2 Originally, Irvin sought review of the order of
sanctions in the court of appeals, which, in addition to a full

1 Inexplicably, Irvin failed to address the issue of
jurisdiction in his brief.
2 Pursuant to rule 43(a) of the Utah Rules of Appellate
Procedure, the agreement of four or more judges of the court of
appeals results in the immediate transfer of an appeal to the
Supreme Court.
3 We are somewhat baffled by the GAL’s assertion at oral
argument that it does not have the resources available to reduce
to judgment the amount ordered in its favor.
No. 20050775 2
briefing on the merits, directed the parties also to brief the
question of jurisdiction, specifically, whether the order is
final and appealable under Promax Development Corp. v. Raile,
2000 UT 4, 998 P.2d 254.1 After briefing, the court of appeals
transferred the matter to us by order of certification.2
¶3 On August 18, 2005, the juvenile court issued an order
finding Irvin in violation of rule 11 of the Utah Rules of Civil
Procedure. The court awarded the Guardian ad Litem (the “GAL”)
$1250 in attorney fees for costs associated with certain motions
filed by Irvin. The court further ordered that Irvin pay the
additional expenses and attorney fees incurred by the GAL and by
the Attorney General in the sanction proceedings.
¶4 The actual amount of reimbursement to the GAL and the
Attorney General was to be specified by affidavit. In the event
of a dispute, Irvin would have ten days to object, and further
pleadings or a hearing would be held to determine the amount of
the reimbursement.
¶5 The GAL and Attorney General timely filed their
affidavits, and Irvin did not respond. However, on September 2,
Irvin filed a Notice of Appeal of the August 18 order, claiming
that the juvenile court erred in ordering the sanctions. On
September 19, the juvenile court entered judgment, in favor of
the Attorney General, in the amount of $10,370. The amount due
the GAL has yet to be reduced to judgment,3 and therefore, the
actual amount of attorney fees are yet to be determined.
ANALYSIS
¶6 This court makes the original determination of whether
an order is final and appealable. See, e.g., Promax Dev. Corp.
v. Raile, 2000 UT 4, 998 P.2d 254. In aid of that determination,
we have stated that “a trial court must determine the amount of
attorney fees awardable to a party before the judgment becomes

3 No. 20050775
final for the purposes of an appeal.” Id. ¶ 15. Moreover, we
concluded that
[w]here attorney fees are awarded to a party
. . . and the amount is not stated in the
judgment rendered on the merits of the case,
and evidence must be taken afterwards by the
trial court either by affidavit or live
testimony, there is no final judgment for the
purposes of appeal until the amount of the
fees has been ascertained and granted.
Id. ¶ 12.
¶7 In this case, the order appealed includes the award
of attorney fees. The fees were to be determined by later-filed
affidavits and, if objected to by Irvin, by hearing.
Unquestionably, under ProMax, the order appealed is non-final.
¶8 Because the order is non-final, it is appealable only
if it meets one of three recognized exceptions to the final
judgment rule. Loffredo v. Holt, 2001 UT 97, ¶ 1, 37 P.3d 1070.
According to the rule, a non-final order may be appealed if (1)
the district court properly certifies the order for appeal under
rule 54(b) of the Utah Rules of Civil Procedure, (2) an appellate
court grants permission for the appeal of an interlocutory order
under rule 5 of the Utah Rules of Appellate Procedure, or (3) the
appeal is specifically permitted by statute. Id. ¶ 15.
¶9 In this case, Irvin has made no attempt to qualify
under any of the exceptions. As a result, Irvin presents us with
a non-final order that qualifies for no exception to the final
order rule. We therefore have no jurisdiction to review the
order or any part of it. Dismissed.
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¶10 Chief Justice Durham, Justice Durrant, Justice Parrish,
and Justice Nehring concur in Associate Chief Justice Wilkins’
opinion.