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Copper Hills Custom Homes, LLC v. Countrywide Bank, FSB

Supreme Court of Utah

August 16, 2018

Copper Hills Custom Homes, LLC, Appellant,
v.
Countrywide Bank, FSB, [1] Appellees.

          On Direct Appeal Third District, Salt Lake The Honorable Matthew Bates No. 150907425

          Troy L. Booher, Beth E. Kennedy, Alexandra Mareschal, Salt Lake City; Nate D. Ashcraft, Lehi, for appellant

          Chandler P. Thompson, Alan M. Hurst, Salt Lake City, for appellees Countrywide Bank, FSB and Mortgage Electronic Registration Systems, Inc.

          Bradley L. Tilt, Sara E. Bouley, Salt Lake City, for appellees Diane Griffin, Eldon E. Griffin, Marcus Griffin, Stearns Lending, Inc., and Utah Community Federal Credit Union,

          Brett N. Anderson, Salt Lake City, for appellees Primelending and Jason P. Turner

          Justice Himonas authored the opinion of the Court, in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Petersen, and Judge Harris Joined.

          Having recused himself, Justice Pearce does not participate herein; Court of Appeals Judge Ryan M. Harris sat.

          OPINION

          HIMONAS JUSTICE.

         ¶ 1 Acting pursuant to rule 54(b) of the Utah Rules of Civil Procedure, the district court sought to certify as final and appealable several orders related to the disposition of mechanic's liens. The plaintiff, Copper Hills Custom Homes, then appealed those orders to this court. But we may not act on an appeal, including an appeal of a putative final order under rule 54(b), unless we are satisfied that we have appellate jurisdiction. And our review of the 54(b) certifications here reveals them to be flawed. This circumstance is by no means unique to this appeal-improper 54(b) certifications have proven to be a recurring source of jurisdictional complications.[2] Therefore, we dismiss the appeal for lack of appellate jurisdiction, but take the time to readdress and refine the steps that the parties and district courts must take to ensure proper certification under rule 54(b) in order to avoid unnecessary remands.

         ¶ 2 We are not oblivious to the fact that our decision today will leave the parties feeling that form has triumphed over substance. In a sense, they would not be wrong. But "we cannot fabricate the power to hear a case simply because it seems more palatable than acknowledging that we lack jurisdiction." DFI Props. LLC v. GR 2 Enters. LLC, 2010 UT 61, ¶ 23, 242 P.3d 781. And "[t]he lost time and effort occasioned by the briefing and oral argument in [such a] case is a small price to pay for insisting that the parties comply with the rules of procedure so that the proper relationship between" appellate courts and the district courts "may be maintained." Id. (first alteration in original) (citation omitted). It is therefore "incumbent upon us when we find that we lack jurisdiction to hear a case," as is the situation here, to dismiss the appeal. Id.

         I

         ¶ 3 The germane facts are scant and not in dispute. "Copper Hills provided construction contracting services to Morningside Developers . . . on eight separate parcels of real property in 2006." Morningside Developers, LLC v. Copper Hills Custom Homes, LLC, 2015 UT App 99, ¶ 2, 348 P.3d 726. Claiming that "Morningside failed to pay [it] for its work, Copper Hills recorded mechanic[']s liens against each of the parcels and ultimately filed eight separate lien foreclosure actions." Id. In response, Morningside sued "Copper Hills for breach of contract, fraud, and related claims." Id. The district court consolidated Morningside's claims and Copper Hills's foreclosure actions in October 2009. Id.

         ¶ 4 After two years of inaction and an intervening "order to show cause why the case should not be dismissed[, ] . . . the district court dismissed the case without prejudice." Id. ¶¶ 3-4. Copper Hills moved to set aside that dismissal. The district court granted the motion. Id. ¶ 4.

         ¶ 5 After the dismissal had been set aside, "Copper Hills filed an amended complaint adding twenty-five additional parties." Id. ¶ 5. This prompted the district court to issue "a new order to show cause . . . ordering the parties to address whether" its prior decision to set aside the order of dismissal should be vacated. Id. And, "[f]ollowing a hearing, the district court issued an order in which it vacated the [order to set aside] and dismissed the case with prejudice." Id.

         ¶ 6 On appeal, the court of appeals vacated the district court's decision "insofar as it dismisse[d] the case with prejudice." Id. ¶ 12. Then it reinstated the district court's order dismissing the case without prejudice. Id.

         ¶ 7 One day shy of 180 days from when the court of appeals issued its decision, but more than eight years from when the liens were initially recorded, Copper Hills filed the action that now comes before us. Shortly thereafter, appellees Countrywide Bank and Mortgage Electronic Registration Systems (MERS) moved to dismiss the claims against them, arguing that "Copper Hills . . . violated the 180-day limitation" in Utah Code section 38-1-11(2) (2007).[3] Other appellees followed suit.

         ¶ 8 Based on appellees' argument, the district court concluded that several of Copper Hills's liens were "time-barred, void, and unenforceable." And, as a result, it issued the five orders presently before us.[4]

         ¶ 9 The district court sought to certify each of these orders as final and appealable under rule 54(b). To this end, it sought to grant 54(b) certification to the first three items by an order dated September 27, 2016. And it sought to grant 54(b) certification as to the fourth and fifth orders with language ...


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