Cindy L. Thompson, Appellant,
Wardley Corporation, Wardley Properties, Lynn E. Wardley, Kenneth U. Tramp, John T. Anderson, and Anderson & Karrenberg PC, Appellees.
District Court, Salt Lake Department The Honorable Andrew H.
Stone No. 160906509
L. Thompson, Appellant Pro Se
T. Anderson, Attorney for Appellees
Judges Gregory K. Orme, Michele M. Christiansen, and David N.
Appellant Cindy L. Thompson appeals the dismissal of her
"Amended Complaint for Fraud Upon the Court." That
complaint sought a "declaratory judgment and relief from
the numerous court orders which were obtained by the
defendants/appellees by perpetrating fraud upon the
court" in several proceedings. Thompson seeks to
challenge the June 27, 2017 Order of Dismissal ruling that
her claims for fraud upon the court were barred by claim
preclusion and her lack of standing. She also challenges the
August 3, 2017 Ruling that denied her leave to file a
post-judgment motion. This case is before the court on a sua
sponte motion for summary disposition.
¶2 The August 10, 2017 Notice of Appeal states that it
challenges both the June 27, 2017 Order of Dismissal and
August 3, 2017 Ruling. However, because the notice of appeal
was not filed within thirty days after the June 27, 2017
Order of Dismissal, it is timely only if one of the motions
listed in rule 4(b) of the Utah Rules of Appellate Procedure
operated to suspend the time for appeal. Although Thompson
claims that she filed a motion to set aside the judgment
under rule 60(b) and a motion for rehearing under rule 59 of
the Utah Rules of Civil Procedure (the post-judgment motion),
the motion was not accepted for filing and entered in the
district court docket. Because no motion operated to extend
the time for appeal from the June 27, 2017 Order of Dismissal
under rule 4(b), this court lacks jurisdiction to consider an
appeal of that final judgment.
Thompson's response to the sua sponte motion does not
acknowledge that the district court denied her motion for
leave to file the post-judgment motion, which was required as
a result of the entry of a "vexatious litigant
order" pursuant to rule 83 of the Utah Rules of Civil
Procedure. Thompson instead argues that she actually
filed the post-judgment motion, which suspended the time for
an appeal of the June 27, 2017 Order of Dismissal. She
construes the August 3, 2017 Ruling denying leave to file the
post-judgment motion as an order denying the motion on its
merits. Thus, she claims her appeal is timely from both the
June 27, 2017 Order of Dismissal and the August 3, 2017
Ruling. This argument misrepresents the district court
record. The post-judgment motion was not accepted and filed
in the district court because the district court denied leave
to file it. Accordingly, this court lacks jurisdiction to
consider an appeal of the June 27, 2017 Order of Dismissal
because there was no timely appeal from that ruling.
This court has jurisdiction to consider an appeal from the
August 3, 2017 Ruling because the notice of appeal was timely
filed from that ruling. The case was before the district
court on a "Notice and Request for Leave to File
Plaintiff's Rule 60(b) Motion to Vacate the Court's
June 27, 2017 Dismissal Order and Rule 59(a)(1) Motion for
Rehearing." The proposed post-judgment motion claimed
that the district court should have granted leave to file a
Second Amended Complaint. Thompson sought leave to file a
Second Amended Complaint while the motion to dismiss her
Amended Complaint was pending. Although the motion to amend
the complaint for a second time was effectively denied when
the case was dismissed, it was not referred to in the June
27, 2017 Order of Dismissal. The August 3, 2017 Ruling
concluded that the second proposed amendment would be futile.
See Jensen v. IHC Hosps., Inc., 2003 UT 51, ¶
139, 82 P.3d 1076 ("It is well settled that a court may
deny a motion to amend as futile if the proposed amendment
would not withstand a motion to dismiss[.]"). The
district court ruled,
As with her prior complaint, all of the claims in the
proposed Second Complaint sought to be asserted by Plaintiff
were actually or should have been litigated in prior actions.
This was addressed at argument when the Court asked Plaintiff
to identify any claim that did not involve matters litigated
the motion to amend lacked merit and the post-judgment motion
was based on the pendency of that motion to amend, the
district court determined that the proposed post-judgment
motion was also without merit and denied leave to file it.
The district court did not err in denying the motion for
leave to file the post-judgment motion.
We deny Thompson's motion for summary reversal. This
court lacks jurisdiction to consider the merits of an appeal
from the June 27, 2017 Order of Dismissal and the appeal is
summarily dismissed insofar as it seeks to appeal from that
order. Insofar as the appeal is taken from the August 3, 2017
Ruling, we affirm the district court's ruling.