Card v. Card , 314 P.3d 1029 ( 2013 )

2013 UT App 241_________________________________________________________
THE UTAH COURT OF APPEALS
DEVIN J. CARD,
Plaintiff and Appellant,
v.
ARIA R. CARD,
Defendant and Appellee.
Per Curiam Decision
No. 20120837‐CA
Filed October 10, 2013
Third District, Salt Lake Department
The Honorable L.A. Dever
No. 120904019
Devin J. Card, Appellant Pro Se
Before JUDGES GREGORY K. ORME, STEPHEN L. ROTH, and
MICHELE M. CHRISTIANSEN.
PER CURIAM:
¶1 Devin J. Card appeals the trial court’s order denying his
motion to vacate the dismissal of his complaint. We affirm.
¶2 The trial court dismissed Card’s complaint in an order
entered on August 29, 2012. On September 5, 2012, Card filed a
motion to vacate the dismissal pursuant to rule 60(b) of the Utah
Rules of Civil Procedure, along with a memorandum in support of
the motion. On September 14, Card filed a supplemental
memorandum in support of the motion and a notice to submit. The
trial court denied the motion to vacate in an order dated September
19, 2012.
¶3 On September 27, 2012, Card filed a notice of appeal from
the denial of his motion to vacate. The notice specified that the
Card v. Card
order appealed was the final order of the trial court entered on
September 19, 2012, and further stated that the appeal was taken
from the part of “the judgment that states that ‘any issue of alleged
failure of notice is the burden of Plaintiff.’” Orders denying relief
under rule 60(b) are separate final orders from which appeals may
be taken. See Amica Mut. Ins. Co. v. Schettler, 768 P.2d 950, 970 (Utah
Ct. App. 1989). This notice of appeal was timely filed following the
entry of the order denying Card’s motion to vacate. See Utah R.
App. P. 4(a). Accordingly, the notice of appeal properly invoked
this court’s jurisdiction to review the denial of the motion to vacate
the dismissal.
¶4 The sole issue raised in Card’s brief that relates to the order
denying the motion to vacate is his claim that the trial court abused
its discretion in striking his supplemental memorandum. The trial
court noted that it struck the memorandum because it did not
comply with rule 7(c)(1) of the Utah Rules of Civil Procedure. Card
does not address the court’s reason for striking the memorandum
and, as a result, has not demonstrated that the trial court erred. See
Duchesne Land, LC v. Division of Consumer Prot., 2011 UT App 153,
¶ 8, 257 P.3d 441 (mem.) (concluding that no error was
demonstrated because the appellant failed to address the rationale
of the trial court).
¶5 The rest of the issues raised in Card’s brief challenge the
August 29 order dismissing the complaint. However, issues
regarding the dismissal order are beyond the scope of this appeal,
and this court lacks jurisdiction to consider them. An appeal may
be taken from final judgments or orders “by filing a notice of
appeal with the clerk of the trial court within the time allowed by
rule 4.” Utah R. App. P. 3(a). The notice of appeal “shall designate
the judgment or order, or part thereof,” from which the appeal is
taken. Id. R. 3(d). “This requirement is jurisdictional because the
object of a notice of appeal is to advise the opposite party that an
appeal has been taken from a specific judgment in a particular
case.” In re B.B., 2002 UT App 82, ¶ 9, 45 P.3d 527. In this case, the
20120837‐CA 2 2013 UT App 241Card v. Card
notice of appeal identified the order denying Card’s motion to
vacate the dismissal as the subject of the appeal.
¶6 Orders denying motions under rule 60(b) are separate
appealable orders, and the scope of review is limited to considering
whether the denial of relief was appropriate. See Fisher v. Bybee,
2004 UT 92, ¶ 10, 104 P.3d 1198. The review does not encompass
the merits of the underlying judgment or order. See id. Accordingly,
the notice of appeal filed on September 27 does not confer
jurisdiction on this court to review the August order dismissing the
complaint.
¶7 Furthermore, the amended notice of appeal filed on October
18, 2012, had no effect. In that notice, Card “amended” his initial
notice of appeal to change the order appealed to the August 29
order and to change the scope of the appeal to “the entire
judgment.” However, because the final order dismissing the
complaint and the final order denying rule 60(b) relief are separate,
final, and appealable orders, the orders require separate notices of
appeal. The purported amendment to the notice of appeal from one
order therefore was insufficient to independently invoke
jurisdiction to appeal from a separate final order. In addition, even
if the October amended notice were treated as a new notice, the
appeal from the August 29 order would be untimely, and thus
would not confer jurisdiction. See Serrato v. Utah Transit Auth., 2000
UT App 299, ¶ 7, 13 P.3d 616 (holding that if an appeal is not timely
filed, this court does not have jurisdiction over the appeal).
¶8 In sum, the challenge to the August 29 order dismissing
Card’s complaint is not within the scope of this appeal. Card has
shown no error in the trial court’s order denying his motion to
vacate the dismissal under rule 60(b).
¶9 Affirmed.
20120837‐CA 3 2013 UT App 241