Cody v. Hutchinson , 273 P.3d 431 ( 2012 )

IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
Jason Cody, ) PER CURIAM DECISION
)
Plaintiff and Appellant, ) Case No. 20111000‐CA
)
v. )
) FILED
John Blair Hutchison; and ) (March 1, 2012)
Hutchison and Neider PC, )
) 2012 UT App 63Defendants and Appellee. )
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Second District, Ogden Department, 110902684
The Honorable Michael D. DiReda
Attorneys: Jason Cody, Ogden, Appellant Pro Se
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Before Judges McHugh, Voros, and Orme.
¶1 Jason Cody appeals the ruling granting an order to quash service and dismissing
John Blair Hutchison from the case without prejudice. This case is before the court on a
sua sponte motion to dismiss the appeal without prejudice because it is not taken from a
final appealable judgment.
¶2 Cody filed a complaint against John Blair Hutchison, individually, and against
Hutchison and Neider PC. Hutchison and Neider PC was served and filed an answer
to the complaint. John Blair Hutchison moved to quash service. In its ruling granting
the motion to quash service, the district court dismissed the case against John Blair
Hutchison individually without prejudice. However, the case remains pending in the
district court against the remaining named defendant, Hutchison and Neider PC.1
1. The district court declined to rule on Cody’s motion to reconsider the ruling
dismissing Hutchison from the case because Cody had filed a notice of appeal. Based
upon our dismissal of this appeal for lack of a final appealable order, the district court is
(continued...)
¶3 The ruling being appealed is not a final, appealable order because the complaint
is pending in the district court against the remaining defendant, Hutchison and Neider
PC. Rule 3(a) of the Utah Rules of Appellate Procedure states that “[a]n appeal may be
taken from a district or juvenile court to the appellate court with jurisdiction over the
appeal from all final orders and judgments.” Utah R. App. P. 3(a). An order is final and
appealable when it disposes of the case as to all of the parties and disposes of the
subject matter of the litigation on the merits. See Bradbury v. Valencia, 2000 UT 50, ¶ 9, 5
P.3d 649; see also Loffredo v. Holt, 2001 UT 97, ¶ 12, 37 P.3d 1070; Houston v. Intermountain
Health Care, 933 P.2d 403, 406 (Utah Ct. App. 1997) (“Generally, a judgment is not a
final, appealable order if it does not dispose of all the claims in a case, including
counterclaims.”). An appeal taken from an order that is not final must be dismissed for
lack of appellate jurisdiction. See Bradbury, id. at ¶ 8; see also Varian‐Eimac, Inc. v.
Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989) (stating that once a court determines
that it lacks jurisdiction, it “retains only the authority to dismiss the action”).
¶4 Because the appeal is not taken from a final, appealable judgment, we dismiss
the appeal without prejudice to a timely appeal filed after the entry of a final judgment.
____________________________________
Carolyn B. McHugh,
Presiding Judge
____________________________________
J. Frederic Voros Jr.,
Associate Presiding Judge
____________________________________
Gregory K. Orme, Judge
1. (...continued)
free to consider the motion to reconsider its ruling after remand of this case. See Utah R.
Civ. P. 54(b) (“[A]ny order . . . that adjudicates fewer than all the claims or the rights
and liabilities of fewer than all the parties shall not terminate the action as to any of the
claims or parties, and the order . . . is subject to revision at any time before the entry of
judgment adjudicating all the claims and the rights and liabilities of all the parties.”);
Gillett v. Price, 2006 UT 24, ¶ 7 n.2, 135 P.3d 861 (stating that a motion to reconsider that
is filed before final judgment is a reargument that the district court “is free to consider
any time before entering the final judgment”).
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