Opinion
No. 870123.
June 10, 1987.
Appeal from the Third District Court, Salt Lake County, Richard H. Moffat, J.
Phil L. Hansen, Salt Lake City, for defendant and appellant.
S. Baird Morgan, Mark J. Taylor, Salt Lake City, for plaintiff and respondent.
ORDER
Plaintiff moves for summary dismissal of this appeal as premature. Plaintiff requests that this Court award it attorney fees for having to defend this appeal. Rule 33(a) of the Rules of the Utah Supreme Court is invoked as appropriate under the circumstances.
Defendant has brought four appeals in this and related cases. Only one was certified final under Rule 54(b) of the Utah Rules of Civil Procedure. This Court dismissed one appeal on its own motion and another on motion of plaintiff. As it had done in the previous appeal dismissed on its motion, plaintiff requested that defendant stipulate to the dismissal of the appeal here under review. Counsel for defendant refused.
The trial court's order striking defendant's answer for failure to comply with discovery orders was not certified final under Rule 54(b). An evidentiary hearing on plaintiff's damages was still pending when this appeal was filed. The appeal is therefore dismissed as premature. Plaintiff is awarded costs and fees necessitated by this appeal.
The case is remanded to the trial court for a determination of a reasonable amount of attorney fees. So ordered.