Direct Appeal Third District, Salt Lake The Honorable Matthew
Bates No. 150907425
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
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.
recused himself, Justice Pearce does not participate herein;
Court of Appeals Judge Ryan M. Harris sat.
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. 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.
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."
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). 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
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