Hayes v. Intermountain , 437 P.3d 650 ( 2018 )

2018 UT App 223THE UTAH COURT OF APPEALS
KIM HAYES AND NANCY HAYES,
Appellants,
v.
INTERMOUNTAIN GEOENVIRONMENTAL SERVICES INC.,
Appellee.
Opinion
No. 20180034-CA
Filed November 29, 2018
Second District Court, Farmington Department
The Honorable Glen R. Dawson
No. 170700693
Damian C. Smith, Attorney for Appellants
Anna Nelson, Attorney for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES JILL M. POHLMAN and RYAN M. HARRIS concurred.
ORME, Judge:
¶1 Plaintiffs Kim and Nancy Hayes appeal the district court’s
dismissal of their claims against defendant Intermountain
GeoEnvironmental Services Inc. (IGES). IGES is one of
three defendants against whom the Hayeses brought
suit. In response to a motion brought by IGES pursuant to rule
54(b) of the Utah Rules of Civil Procedure, the district
court entered an order characterizing the previously
entered order of dismissal as “a final order, thus starting
[the] time for appeals should there be any, from the date
this Order is signed and entered.” Given the text of the
district court’s order, and in light of our Supreme Court’s
recent decisions in First National Bank v. Palmer, 2018 UT 43, 427
P.3d 1169, and Copper Hills Custom Homes, LLC v. Countrywide
Hayes v. Intermountain
Bank, FSB, 2018 UT 56, 428 P.3d 1133 (amended opinion), we
have determined that we lack appellate jurisdiction and have no
choice but to dismiss this appeal.
¶2 Because “acquiescence of the parties is insufficient
to confer jurisdiction on the court,” Palmer, 2018 UT 43, ¶ 6
(quotation simplified), “the initial inquiry of any court
should always be to determine whether the requested action
is within its jurisdiction,” Varian-Eimac, Inc. v. Lamoreaux, 767
P.2d 569, 570 (Utah Ct. App. 1989). As a general rule,
appellate courts obtain jurisdiction over an appeal only after
the district court issues “a final order or judgment that ends
the controversy between the litigants.” Copper Hills, 2018 UT 56,
¶ 10 (quotation simplified). This limit to appellate jurisdiction
“is often referred to as the final judgment rule.” Id.(quotation simplified). An appeal brought pursuant to rule 54(b)
of the Utah Rules of Civil Procedure is one of the few
exceptions to this rule. See id. ¶¶ 13–15.
¶3 For a nonfinal order to be properly certified
for appeal under rule 54(b), first, “there must be multiple
claims for relief or multiple parties to the action;” second,
“the judgment appealed from must have been entered on
an order that would be appealable but for the fact
that other claims or parties remain in the action;” and third,
“the district court, in its discretion, must make an express
determination that there is no just reason for delay.” Id. ¶ 16
(emphasis added) (quotations simplified). Additionally,
rule 52(a) of the Utah Rules of Civil Procedure requires
that the district court “enter findings supporting the
conclusion that the certified orders are final.” Id. ¶ 21
(quotation simplified). Those findings should, among other
things, “advance a rationale as to why” there is “no just
reason for delay.” Id. (quotation simplified). This is a
practical requirement because appellate courts “cannot review
20180034-CA 2 2018 UT App 223Hayes v. Intermountain
an order that does not offer the court enough findings and
conclusions to understand the district court’s reasoning.” 1 Id.
¶ 27 (quotation simplified).
¶4 Here, although its order was captioned “Order on
Defendant [IGES’s] Motion for Rule 54(b) Certification,” the
district court merely stated that its prior order of dismissal “is
deemed a final order, thus starting [the] time for appeals.” The
order, which was drafted by IGES’s counsel, failed to include
findings and the requisite express language that there is “no just
reason for delay.” See Palmer, 2018 UT 43, ¶ 13 (quotation
simplified). Because the certification order did not satisfy rules
52(a) and 54(b), we reach the “unavoidable conclusion” that we
lack jurisdiction over this appeal. Id. ¶ 14.
¶5 The inefficiency attending dismissal of a case that was
set for oral argument is regrettable. “Unfortunately, because
the final judgment rule is jurisdictional and not discretionary,
we are powerless to decide the merits of the appeal for the
sake of convenience.” Heartwood Home Health & Hospice LLC v.
Huber, 2016 UT App 183, ¶ 13 n.4, 382 P.3d 1074. When
an appellate court determines that it lacks appellate jurisdiction,
“it ‘retains only the authority to dismiss the action.’” Ramsay v.
Kane County Human Res. Special Service Dist., 2014 UT 5, ¶ 17,
322 P.3d 1163 (quoting Varian-Eimac, 767 P.2d at 570). Although
it is tempting to temporarily remand to the district court to enter
1. While a district court’s overall ruling on finality is reviewed
for correctness, the court’s specific determination that there is
“no just reason for delay”—the third criterion of rule 54(b)—is
reviewed for abuse of discretion. Copper Hills Custom Homes, LLC
v. Countrywide Bank, FSB, 2018 UT 56, ¶ 22 n.6, 428 P.3d 1133.
20180034-CA 3 2018 UT App 223Hayes v. Intermountain
a proper rule 54(b) certification, we lack the authority to do so. 2
Accordingly, we dismiss this appeal.
2. While we do have the discretion to treat an improper rule
54(b) certification as a request for leave to take an interlocutory
appeal under rule 5(a) of the Utah Rules of Appellate Procedure,
such discretion is rarely exercised, cf. Chaparro v. Torero, 2018 UT
App 181, ¶ 28 (noting that purported appeals of right may be
treated as interlocutory appeals only in “extraordinary cases”
and that “[s]uch exceptional treatment cannot be justified merely
because the jurisdictional defect escaped earlier detection and
the appeal has progressed to a stage where dismissal would
constitute a significant waste of party and judicial resources”),
and we do not exercise that discretion here. As in Copper Hills,
there is no basis apparent on the record that leads us to conclude
that this “appeal may materially advance the termination of the
litigation.” Utah R. App. P. 5(c)(1)(D). See Copper Hills Custom
Homes, LLC v. Countrywide Bank, FSB, 2018 UT 56, ¶ 29 n.15, 428
P.3d 1133. Of course, either party may move the district court to
properly certify the order that is the subject of this dismissed
appeal in accordance with the strict mandates of rule 54(b) and
its jurisprudence. See Copper Hills, 2018 UT 56, ¶ 29 n.15. With
such certification, an appeal could then be properly taken from
the order of dismissal.
20180034-CA 4 2018 UT App 223