Opinion
Case No. 20070326-CA.
May 15, 2008. Not For Official Publication
Appeal from Second District, Layton Department, 050603171 The Honorable Thomas L. Kay.
Michael D. Zimmerman, Troy L. Booher, and Katherine Carreau, Salt Lake City, for Appellants.
Milo Steven Marsden, Craig R. Kleinman, and Patricia C. Staible, Salt Lake City, for Appellee.
Before Judges Billings, Davis, and McHugh.
MEMORANDUM DECISION
STC Holdings, Steve Glezos, and Glen Pettit (collectively STC) appeal the trial court's grant of summary judgment against them. Although the case has been briefed, this is before the court on STC's motion to dismiss for lack of jurisdiction based on the lack of a final order. After closer review, STC has recognized that the summary judgment order appealed from resolved only four of six causes of action pleaded in the complaint.
This court has jurisdiction over appeals from final orders or judgments. See Utah R. App. P. 3. An order is final when it fully disposes of the case on the merits, ending the controversy between the parties. See Bradbury v. Valencia, 2000 UT 50, ¶ 9, 5 P.3d 649. To be final, the order must dispose of all claims to an action. See id. ¶ 10. Where an appeal is taken from an order that is not final, the appeal is improper and must be dismissed. See id. ¶¶ 8-9. Furthermore, jurisdictional issues may be raised by either the parties or the court at any time. See Olson v. Salt Lake City Sch. Dist., 724 P.2d 960, 964 (Utah 1986).
Acquiescence of the parties does not perfect jurisdiction. See id.
Horton V. Bourne Partnership Ltd (Bourne) moved for summary judgment on four of the six causes of action alleged in its complaint. Bourne asserts that it moved for summary judgment on all claims, but the motion and accompanying memorandum specify only four. The claims for slander of title and intentional interference with contract were not addressed in the summary judgment. Accordingly, those claims remain pending below and the summary judgment is not a final order.
Bourne argues that a district court need not address each and every claim in a summary judgment and that the remaining claims are implicitly decided in the summary judgment ruling. Where a summary judgment motion and the summary judgment order itself make no mention of a specific claim, the unspecified claim may be disposed of if the grant of summary judgment "implicitly and necessarily constituted an adverse ruling" on the unnamed claim. Timm v. Dewsnup, 851 P.2d 1178, 1182 (Utah 1993). The summary judgment order here did not, however, constitute an adverse ruling on the outstanding tort claims.
The two tort claims are affirmative causes of action pleaded in Bourne's complaint and are not inconsistent with the four adjudicated claims. Additionally, the slander and intentional interference claims require a plaintiff to establish additional elements that were not raised in the summary judgment papers. As a result, the two remaining tort claims were not necessarily precluded by the affirmative ruling on the other claims. Therefore, the tort claims cannot be considered implicitly adjudicated by the grant of summary judgment on the four other claims. See id.
In sum, the summary judgment appealed from is not a final order, and thus, this court lacks jurisdiction over this appeal. Accordingly, this appeal is dismissed without prejudice to the timely filing of an appeal after the entry of a final order.
Judith M. Billings, Judge, James Z. Davis, Judge, Carolyn B. McHugh, Judge.