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Thompson v. Wardley Corp.

Court of Appeals of Utah

November 16, 2017

Cindy L. Thompson, Appellant,
v.
Wardley Corporation, Wardley Properties, Lynn E. Wardley, Kenneth U. Tramp, John T. Anderson, and Anderson & Karrenberg PC, Appellees.

         Third District Court, Salt Lake Department The Honorable Andrew H. Stone No. 160906509

          Cindy L. Thompson, Appellant Pro Se

          John T. Anderson, Attorney for Appellees

          Before Judges Gregory K. Orme, Michele M. Christiansen, and David N. Mortensen.

          PER CURIAM

         ¶1 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.

         ¶3 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.[1] 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.

         ¶4 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 previously.

         Because 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.

         ¶5 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.

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