Article Title: the Final Judgment Rule: Appealability and Enforceability Go Hand in Hand

• Jurisdiction: Utah,United States
• Citation: Vol. 2003 No. 05 Pg. 05-10
• Pages: 05-10
• Publication year: 2003

Utah Bar Journal Volume 5.

05-10 (2003). Article Title: The Final Judgment Rule: Appealability and Enforceability Go Hand in Hand

May, 2003

Article Title: The Final Judgment Rule: Appealability and Enforceability Go Hand in Hand

Author: Kent O. Roche

Article Type

Articles

Article

Most practitioners readily recognize the final judgment rule as a cornerstone of appellate practice. We understand that the rule, now embodied in Rule 3(a) of our appellate rules allows appeals to be taken as a matter of right(fn1) only from "final orders and judgments."(fn2) But the final judgment rule is more than a rule of appellate practice; it has important ramifications for lawsuits at the district court level. Specifically, the final judgment rule requires that a money judgment be final before it can be enforced through a writ of execution or one of the other post-judgment writs allowed by our civil rules Unfortunately, as illustrated by the following example, the district court ramifications of the rule do not seem to be as well understood as the rule's appellate court ramifications.

Our firm was recently retained by an out-of-state bank to try to set aside a $5.5 million default judgment that had been entered against the bank in a state court proceeding. The default judgment against the bank was not a final judgment in that it did not adjudicate all of the claims asserted by all of the parties in the case and had not been certified as a final judgment under Rule 54(b) of the civil rules.(fn3) Despite this fact, while our motion to set aside the default judgment was pending before the district court, our opposing counsel proceeded with efforts to collect the default judgment by executing on the bank's assets. When we advised opposing counsel that it was improper to execute on a non-final judgment and requested that he voluntarily cease his execution efforts, he denied our request by quoting the following provision of Rule 62(a):

Execution or other proceedings to enforce a judgment may issue immediately upon the entry of the judgment, unless the court in its discretion and on such conditions for the security of the adverse party as are proper, otherwise directs.

When preparing our motion to quash opposing counsel's execution efforts, I mistakenly believed that the rules themselves would contain language allowing us to demonstrate that opposing counsel's reliance upon Rule...