Utah Appellate Law Update

• Date: 01 August 2014
• Publication year: 2014
• Pages: 34
• Citation: Vol. 27 No. 4 Pg. 34

Utah Appellate Law Update Vol. 27 No. 4 Pg. 34 Utah Bar Journal August, 2014

July, 2014

Differences in Appellate Practice in Utah's

Appellate Courts and the Tenth Circuit: Finality, Appeals of Right, and Discretionary Appeals

Clemens A. Landau

Although the rules of appellate procedure in Utah and the Tenth Circuit are similar in many respects, they also differ in several important ways. Understanding those differences will help lawyers avoid common jurisdictional pitfalls.

APPEALS OF RIGHT

Both Utah and federal appellate courts have jurisdiction over appeals from final judgments and orders. Utah R. App. P. 3(a); 28 U.S.C. § 1291. In both state and federal courts, the final judgment rule preserves judicial resources and prevents piecemeal appellate review. Powell v. Cannon, 2008 UT 19, ¶ 12,179 P.3d 799; Western Energy Alliance v. Salazar, 709 F.3d 1040, 1047 (10th Cir. 2013). But when a judgment or order in a civil case is "final" differs in the two jurisdictions.

Finality in Utah

In Utah, an order must satisfy two requirements to be final - one substantive and one procedural. To meet the substantive requirement, the order "must dispose of the case as to all the parties, and finally dispose of the subject-matter of the litigation on the merits of the case." Bradbury v. Valencia, 2000 UT 50, ¶ 9, 5 P.3d 649 (internal quotation marks and citation omitted). In other words, the order "must end the controversy between the litigants." Loffredo v. Holt, 2001 UT 97, ¶12, 37 P.3d 1070. Under Utah law, pending claims for attorney fees preclude finality because they are considered to affect the merits of a case, but pending claims for costs and other clerical matters do not. Compare ProMax Dev. Corp. v. Raile, 2000 UT 4, ¶15, 998 P.2d 254, with Beddoes v. Giffin, 2007 UT 35, ¶ 12, 158 R3d 1102.

To meet the procedural requirement, the order must be issued in compliance with rule 7(f) (2) of the Utah Rules of Civil Procedure. Central Utah Water Conservancy Dist. v. King, 2013 UT 13, ¶¶ 9-10, 297 P.3d 619.^[1] This requirement may be satisfied in one of three ways: (1) the order "explicitly directs that no additional order is required"; (2) the "district court approves the proposed order submitted with a party's initial memorandum"; or (3) the order was entered after it was circulated by the parties pursuant to procedures set forth in Rule 7(f) (2). Id. ¶ 10. Failure to comply with Rule 7(f) (2) will also have the effect of indefinitely extending the appeal rights of the nonprevailing party. Id. ¶ 26.^[2] And any appeal taken from a non-Rule 7(f) (2)-compliant order will likely be summarily dismissed for lack of jurisdiction.

Once the order or judgment is final, a notice of appeal must be filed within thirty days. Utah R. App. P. 4(a).

Finality in the Tenth Circuit

The Tenth Circuit also has jurisdiction over appeals from "final decisions." 28 U.S.C. § 1291. Under federal law, a "final decision" does not exist "until there has been a decision by the district court that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment."

McClendon v. City of Albuquerque, 630F.3d 1288,1292 (10th Cir. 2011) (citation and internal quotation marks omitted). But federal law differs from Utah law in that "an unresolved issue of attorney's fees for the litigation in question does not prevent judgment on the merits from being final." Ray Haluch Gravel Co. v. Cent. Pension Fund of the Int'l Union of Operating Eng'rs, 134 S.Ct. 773,778 (2014).^[3] Consequently, if a notice of appeal is timely only as to the district court's later resolution of an attorney fees claim, the Tenth Circuit will not have jurisdiction to consider the merits of the underlying case. See, e.g., Farnsworth v. Kennard, 190 E App'x 594, 596 (10th Cir. 2006).

Further, there is no federal counterpart to Utah rule 7(f) (2)...