District Court, Farmington Department The Honorable Glen R.
Dawson No. 170700693
C. Smith, Attorney for Appellants
Nelson, Attorney for Appellee
Gregory K. Orme authored this Opinion, in which Judges Jill
M. Pohlman and Ryan M. Harris concurred.
Plaintiffs Kim and Nancy Hayes appeal the district
court's dismissal of their claims against defendant
Intermountain GeoEnvironmental Services Inc. (IGES). IGES is
one of three defendants against whom the Hayeses brought
suit. In response to a motion brought by IGES pursuant to
rule 54(b) of the Utah Rules of Civil Procedure, the district
court entered an order characterizing the previously entered
order of dismissal as "a final order, thus starting
[the] time for appeals should there be any, from the date
this Order is signed and entered." Given the text of the
district court's order, and in light of our Supreme
Court's recent decisions in First National Bank v.
Palmer, 2018 UT 43, 427 P.3d 1169, and Copper Hills
Custom Homes, LLC v. Countrywide Bank, FSB, 2018 UT 56,
428 P.3d 1133 (amended opinion), we have determined that we
lack appellate jurisdiction and have no choice but to dismiss
Because "acquiescence of the parties is insufficient to
confer jurisdiction on the court," Palmer, 2018
UT 43, ¶ 6 (quotation simplified), "the initial
inquiry of any court should always be to determine whether
the requested action is within its jurisdiction,"
Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570
(Utah Ct. App. 1989). As a general rule, appellate courts
obtain jurisdiction over an appeal only after the district
court issues "a final order or judgment that ends the
controversy between the litigants." Copper
Hills, 2018 UT 56, ¶ 10 (quotation simplified).
This limit to appellate jurisdiction "is often referred
to as the final judgment rule." Id. (quotation
simplified). An appeal brought pursuant to rule 54(b) of the
Utah Rules of Civil Procedure is one of the few exceptions to
this rule. See id. ¶¶ 13-15.
For a nonfinal order to be properly certified for appeal
under rule 54(b), first, "there must be multiple claims
for relief or multiple parties to the action;" second,
"the judgment appealed from must have been entered on an
order that would be appealable but for the fact that other
claims or parties remain in the action;" and third,
"the district court, in its discretion, must make an
express determination that there is no just reason for
delay." Id. ¶ 16 (emphasis added)
(quotations simplified). Additionally, rule 52(a) of the Utah
Rules of Civil Procedure requires that the district court
"enter findings supporting the conclusion that the
certified orders are final." Id. ¶ 21
(quotation simplified). Those findings should, among other
things, "advance a rationale as to why" there is
"no just reason for delay." Id. (quotation
simplified). This is a practical requirement because
appellate courts "cannot review an order that does not
offer the court enough findings and conclusions to understand
the district court's reasoning." Id.
¶ 27 (quotation simplified).
Here, although its order was captioned "Order on
Defendant [IGES's] Motion for Rule 54(b)
Certification," the district court merely stated that
its prior order of dismissal "is deemed a final order,
thus starting [the] time for appeals." The order, which
was drafted by IGES's counsel, failed to include findings
and the requisite express language that there is "no
just reason for delay." See Palmer, 2018 UT 43,
¶ 13 (quotation simplified). Because the certification
order did not satisfy rules 52(a) and 54(b), we reach the
"unavoidable conclusion" that we lack jurisdiction
over this appeal. Id. ¶ 14.
The inefficiency attending dismissal of a case that was set
for oral argument is regrettable. "Unfortunately,
because the final judgment rule is jurisdictional and not
discretionary, we are powerless to decide the merits of the
appeal for the sake of convenience." Heartwood Home
Health & Hospice LLC v. Huber, 2016 UT App 183,
¶ 13 n.4, 382 P.3d 1074. When an appellate court
determines that it lacks appellate jurisdiction, "it
'retains only the authority to dismiss the
action.'" Ramsay v. Kane County Human Res.
Special Service Dist., 2014 UT 5, ¶ 17, 322 P.3d
1163 (quoting Varian-Eimac, 767 P.2d at 570).
Although it is tempting to temporarily remand to the district
court to enter a proper rule 54(b) certification, we lack the
authority to do so.Accordingly, we dismiss this appeal.
While a district court's overall
ruling on finality is reviewed for correctness, the
court's specific determination that there is "no
just reason for delay"-the third criterion of rule
54(b)-is reviewed for abuse of discretion. Copper Hills
Custom Homes, LLC v. Countrywide Bank, FSB,
2018 UT 56, ¶ 22 n.6, 428 P.3d 1133.
While we do have the discretion to
treat an improper rule 54(b) certification as a request for
leave to take an interlocutory appeal under rule 5(a) of the
Utah Rules of Appellate Procedure, such discretion is rarely
exercised, cf. Chaparro v. Torero, 2018 UT App 181,
¶ 28 (noting that purported appeals of right may be
treated as interlocutory appeals only in "extraordinary
cases" and that "[s]uch exceptional treatment
cannot be justified merely because the jurisdictional defect
escaped earlier detection and the appeal has progressed to a
stage where dismissal would constitute a significant waste of
party and judicial resources"), and we do not exercise
that discretion here. As in Copper Hills, there is
no basis apparent on the record that leads us to conclude
that this "appeal may materially advance the termination
of the litigation." Utah R. App. P. 5(c)(1)(D). See
Copper Hills Custom Homes, LLC v. Countrywide Bank, FSB,
2018 UT 56, ¶ 29 n.15, 428 P.3d 1133. Of course, either
party may move the district court to properly certify the
order that is the subject of ...