Opinion
Case No. 20010651-CA.
Filed May 31, 2002. (Not For Official Publication)
Appeal from the Third District, Salt Lake Department, The Honorable Timothy R. Hanson.
Ronald S. George, Salt Lake City, for Appellant.
Raymond J. Etcheverry, Paul D. Veasy, and R. David Grant, Salt Lake City, for Appellee.
Before Judges Bench, Davis, and Thorne.
MEMORANDUM DECISION
This case is before the court on its own motion for consideration of summary dismissal on the basis that the notice of appeal was untimely filed. See Utah R. App. P. 4(a). Appellee argues, in his response to this court's motion, that the notice of appeal is inadequate to meet the requirements of rule 3 of the Utah Rules of Appellate Procedure, and that the trial court abused its discretion in allowing Appellant an extension of time in which to file her notice of appeal. See Utah R. App. P. 4(e).
Appellant's notice of appeal indicates that she is appealing the court's "final judgment (Memorandum Decision) . . . entered in this matter on October 10, 2000." The court issued its memorandum on the date specified, but required counsel for Appellee to draft a final order, which was filed June 19, 2001. The final order simply reduced the memorandum decision to final form. Appellee argues that the notice fails to advise them that an appeal has been taken from a specific judgment in a particular case. However, Appellee does not assert that he was confused by the filing, or that he suffered any prejudice from the notice. We determine that the notice of appeal met the basic requirements of rule 3(d) of the Utah Rules of Appellate Procedure.
Appellant had previously filed a notice of appeal and docketing statement with the supreme court in this case which was dismissed as premature because there was not yet a final order.
The fact that the filings had previously been filed in the supreme court further minimizes any confusion to Appellee as to what judgement was being appealed.
Appellee also contends that the notice of appeal was untimely because the trial court abused its discretion in allowing an extension of one day, beyond the thirty days, to file the notice of appeal. The trial court has broad discretion to allow or deny extensions, pursuant to rule 4(e) of the Utah Rules of Appellate Procedure, for excusable neglect.See Reisback v. HCA Health Services of Utah, 2000 UT 48,¶ 6, 2 P.3d 447; West v. Grand County, 942 P.2d 337, 339-40 (Utah 1997). Further, the issue of excusable neglect is extremely fact sensitive. See Reisback, 2000 UT 48 at ¶ 15. The trial court ruled that Appellant had demonstrated excusable neglect sufficient to allow an extension of one day. The court did not abuse its discretion in this determination, under the circumstances of this case.
The sua sponte motion for summary disposition is withdrawn and ruling on the remaining issues is reserved pending plenary presentation by the parties. This court will notify the parties of a briefing schedule.
Russell W. Bench, Judge, James Z. Davis, Judge, William A. Thorne Jr., Judge