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05/25/95 STEVEN T. GLEZOS v. FRONTIER INVESTMENTS

May 25, 1995

STEVEN T. GLEZOS, PLAINTIFF, APPELLANT, AND CROSS-APPELLEE,
v.
FRONTIER INVESTMENTS, A NEVADA LIMITED PARTNERSHIP; MARK CHILTON, KATHRYN W. CHILTON, WARD W. CHILTON, ROGER S. TROUNDAY, GENERAL PARTNERS, DEFENDANTS, APPELLEES, AND CROSS-APPELLANTS



Third District, Salt Lake County. The Honorable J. Dennis Frederick. #90906052 CN.

Opinion of the Court by Judith M. Billings, Judge; Norman H. Jackson, and Michael J. Wilkins, Judges, concur.

The opinion of the court was delivered by: Billings

BILLINGS, Judge:

Plaintiff Stephen T. Glezos appeals the trial court's enforcement of the liquidated damages provision in a contract he entered into with Frontier Investments, Mark Chilton, Kathryn W. Chilton and Ward W. Chilton, individual general partners of Frontier Investments (collectively, "Frontier"), *fn1 for the purchase of real property in Wendover, Nevada. Frontier cross appealed on statute of limitations grounds. We reverse and remand on the appeal and dismiss the cross-appeal for lack of jurisdiction.

FACTS

Frontier is a Nevada limited partnership that owns real estate in Wendover, Nevada, including a 22-acre parcel it purchased from The Golden Wheel, Inc. in 1982. On November 1, 1984, Glezos, a resident of Salt Lake County, entered into a contract with Frontier to purchase 5.997 of the 22 acres at a price of $765,494. The contract contained the following "remedies on default" provision:

13. Remedies on default. . . . In the event Buyer defaults in performing this Contract or defaults in making any payment, or in performing this Contract or fulfilling any obligation hereunder, and such default is not cured within thirty (30) days after written notice by Seller specifying the default, . . . Seller, at Seller's option[,] shall have the following remedies:

A. Seller shall have the right to terminate this Contract and forfeit all the rights of the Buyer hereunder and in and to the property sold and to be released from all obligations in law and in equity to convey the property sold or any portion thereof, and all payments which have been made theretofore on this Contract by the Buyer shall be forfeited to the Seller as liquidated damages for the nonperformance of this Contract . . . .

D. The Buyer and Seller each agree that should either of them default in the making of payments, or the performance of this Contract, or any of the covenants or agreements herein contained, that the defaulting party shall pay all costs and expenses, including a reasonable legal fee, which may arise or accrue from enforcing this Contract, or obtaining possession of the premises covered hereby, or in pursuing any remedy provided hereunder or by the statutes of the State of Nevada, whether such remedy is pursued by filing a suit or otherwise.

Glezos made five payments under the contract, totalling $90,725.11, but failed to make a payment that became due February 20, 1985. Frontier sent notice of the default on February 21, 1985. Glezos failed to cure the default and, on March 28, 1985, Frontier terminated the contract, took possession and control of the 5.997 acres, and retained the $90,725.11 Glezos had thus far paid.

Frontier thereafter made unsuccessful efforts to resell the property. Ultimately, in late 1986, Frontier began to make partial payments on its 1982 contract with The Golden Wheel. On May 1, 1988, after a period of negotiations, Frontier agreed to transfer the 5.997 acres to The Golden Wheel in exchange for a $600,000 reduction on the balance owing on Frontier's 1982 contract with The Golden Wheel, a reduction in monthly payments under that agreement, and an extension of the final due date.

Glezos filed suit against Frontier on October 19, 1990, claiming that paragraph 13A, which purports to authorize Frontier to forfeit the full $90,725.11 as liquidated damages, is an unenforceable penalty. Frontier filed a motion to dismiss on statute of limitations grounds, which the court denied.

At a one-day trial on the liquidated damages issue, the court ruled in favor of Frontier. The court found that Frontier sustained actual damages of $176,803, or $165,494 in lost profits and $11,309 in costs incurred negotiating and enforcing the contract. Accordingly, the court concluded that, because Frontier's damages exceeded the $90,725.11 forfeited, paragraph 13A was an enforceable liquidated damages provision, not a penalty.

Glezos filed a timely notice of appeal from the judgment on January 20, 1994. Frontier filed a notice of cross-appeal from the court's denial of its motion to dismiss on February 8, 1994. Finally, in an amended judgment entered August 4, 1994, the court awarded Frontier $434.75 in costs and $24,514.75 in attorney fees. Glezos filed a notice of appeal from the amended judgment on August 26, 1994.

ANALYSIS

I. Jurisdiction of Cross-Appeal

Glezos argues that this court lacks jurisdiction to consider Frontier's cross-appeal because it was not timely filed. Under Rule 4(d) of the Utah Rules of Appellate Procedure, Frontier was required to file its notice of cross-appeal "within 14 days after the date on which the first notice of appeal was filed," Utah R. App. P. 4(d), *fn2 or by February 3, 1994. Glezos correctly points out that when a notice of appeal or cross-appeal is untimely filed, we do not have jurisdiction to consider the appeal. Henretty v. Manti City Corp., 791 P.2d 506, 511 n.11 (Utah 1990); Bowen v. Riverton City, 656 P.2d 434, 436 (Utah 1982).

Frontier responds that under Rule 10(a) of the Rules of Appellate Procedure, Glezos waived his jurisdictional argument by not moving to dismiss the cross-appeal for lack of jurisdiction within ten days after Frontier filed its docketing statement. We disagree. Rule 10(a) provides:

Within 10 days after the docketing statement is served, a party may move:

(1) To dismiss the appeal or the petition for review on the basis that the appellate court has no jurisdiction.

Utah R. App. P. 10(a) (emphasis added). Rule 10(a) is permissive, not mandatory. We have held that

"while defects in personal jurisdiction can be waived, subject matter jurisdiction goes to the very power of a court to entertain an action. A lack of subject matter jurisdiction cannot be stipulated around nor cured by a waiver. A lack of subject matter jurisdiction can be raised at any time and when subject matter jurisdiction does not exist, neither the parties nor the court can do anything to fill the void."

Crump v. Crump, 821 P.2d 1172, 1173-74 (Utah App. 1991) (quoting Curtis v. Curtis, 789 P.2d 717, 726 (Utah App. 1990) (citations omitted)).

Frontier next argues that we should deem its cross-appeal timely filed, or excuse its untimeliness. Frontier claims the district court originally received and stamped its notice of appeal February 2, but that the court later whited out this date and mailed the notice back to Frontier's attorney due to a $100 deficiency in the remitted filing fee. Upon its return with the proper fee, the clerk stamped the notice February 8. Frontier urges this court to ignore the February 8 stamp and reach the merits of its cross-appeal, claiming it was the court clerk's error in imparting mistaken information regarding the filing fee that caused the untimely filing.

This court does not have the authority to do as Frontier requests. In State ex rel. M.S., 781 P.2d 1287 (Utah App. 1989), we held that "in determining whether a notice of appeal is timely filed and establishes jurisdiction in an appellate court, this court must be bound by the filing date indicated on the notice of appeal transmitted to it by the trial court." Id. at 1288. Thus, we are bound by the date stamped on Frontier's notice of cross-appeal.

Further, in State ex rel. M.S., this court emphasized that the exclusive procedure for extending the time for filing a notice of appeal lies under Rule 4(e) of the Utah Rules of Appellate Procedure. Id. Rule 4(e) provides in relevant part:

The trial court, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the ...


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