District Court, Salt Lake Department The Honorable Laura
Scott No. 160905458
Ortiz, Appellant Pro Se.
D. Reyes and Brent A. Burnett, Attorneys for Appellee.
Judges Gregory K. Orme, J. Frederic Voros Jr., and David N.
This matter is before the court on its own motion. Appellant
Daniel Ortiz seeks to appeal the trial court's order
granting summary judgment in favor of Scott Crowther and
dismissing Ortiz's complaint. Ortiz filed a notice of
appeal while a motion to alter or amend the judgment pursuant
to rule 59 of the Utah Rules of Civil Procedure was pending.
Although this court notified Ortiz that his appeal would not
move forward until the rule 59 motion was decided, the trial
court determined it lacked jurisdiction to consider the
motion because of "the general rule that the trial court
is divested of jurisdiction over a case while it is under
advisement on appeal." Cheves v. Williams, 1999
UT 86, ¶ 45, 993 P.2d 191.
The trial court's ruling is incorrect. A timely notice of
appeal does transfer jurisdiction from the trial court to the
appellate court "for most matters in the case."
Garver v. Rosenberg, 2015 UT 39, ¶ 10, 347 P.3d
380. However, the Utah Supreme Court has recognized
exceptions to the general rule that a trial court is divested
of jurisdiction upon the filing of an appeal, noting that the
trial court may continue to act "in the interest of
preventing unnecessary delay, where any action by the trial
court is not likely to modify a party's rights with
respect to the issues raised on appeal, or where the action
by the trial court is authorized by rule or statute."
Cheves, 1999 UT 86, ¶ 45. For example, the
trial court is authorized by rule to consider whether to stay
a judgment in a case pending on appeal, see Utah R.
App. P. 8, and is authorized by statute to determine whether
a litigant is entitled to a waiver of the filing fee on
appeal. See Utah Code Ann. §§ 78A-2-304,
-305 (LexisNexis 2012).
Additionally, to transfer jurisdiction to the appellate
court, the notice of appeal must be timely. See
Garver, 2015 UT 39, ¶ 10. "To be timely, a
notice of appeal cannot be filed too late, but it also cannot
be filed too early." Id. "[A] premature
notice of appeal does not effectuate a transfer of
jurisdiction to review the merits of a case."
Id. ¶ 15.
In this instance, Ortiz filed a motion to alter or amend the
judgment pursuant to rule 59. Rule 4(b) of the Utah Rules of
Appellate Procedure provides that if a party timely files any
one of the enumerated post-judgment motions, the time to file
a notice of appeal "runs from the entry of the order
disposing of the motion." Utah R. App. P. 4(b). A motion
to alter or amend a judgment filed under rule 59 is one of
the motions listed in rule 4(b) that will toll the time to
file the notice of appeal until after the post-judgment
motion is decided. Accordingly, the time for Ortiz to appeal
has not started running because his motion remains pending in
the trial court.
A notice of appeal filed after the entry of judgment but
before the entry of an order disposing of any of the motions
listed in rule 4(b), as happened in this case, will be
"treated as filed after entry of the order"
resolving the motion. Id. R. 4(b)(2). Ortiz's
notice of appeal falls within this time frame. He filed it
after the entry of judgment but before the trial court
decided his rule 59 motion-indeed, the motion has not yet
been decided. His notice of appeal is not yet effective to
transfer plenary jurisdiction over the case to this court; it
remains essentially on hold until the trial court rules on
his motion. As a result, the trial court retains jurisdiction
to consider Ortiz's rule 59 motion, and, indeed, must
resolve the motion before Ortiz's appeal can go
Accordingly, it is hereby ordered that the trial court shall
resolve Ortiz's motion to alter or amend the judgment and
enter an appropriate order. The trial court shall promptly
forward the order to this court to perfect jurisdiction on
The trial court also characterized
Ortiz's motion as "effectively a Motion to
Reconsider." However, the motion was captioned as a
Motion to Alter or Amend the Judgment and expressly invoked
rule 59. On its face, the motion was sufficient to fall
within rule 4(b) of the Utah Rules of Appellate Procedure.
See B.A.M. ...