Opinion
Case No. 20080925-CA.
Filed February 5, 2009. Not For Official Publication
Appeal from the Second District, Farmington Department, 060700618 The Honorable Michael G. Allphin.
Theodore E. Kanell and Russell W. Hartvigsen, Salt Lake City, for Appellants.
Paul C. Farr, Salt Lake City, for Appellee
Before Judges Thorne, Bench, and Orme.
MEMORANDUM DECISION
Appellants Challenger Pallet Supply, Inc. and Boyd P. Gardner appeal the order dismissing Appellee Joseph Dean Argyle from the case. That May 27, 2008 order became final and appealable upon the October 6, 2008 entry of the order dismissing the claims between the remaining parties. This case is before the court on a sua sponte motion for summary disposition.
Appellants' notice of appeal was due no later than thirty days after the entry of the final judgment on October 6, 2008. See Utah R. App. P. 4(a) (stating that a notice of appeal "shall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from"). Accordingly, the time for filing a notice of appeal expired on November 5, 2008. Appellants' notice of appeal was received and filed by the district court clerk on November 6, 2008, and was therefore untimely. Even assuming that the notice of appeal was mailed on November 5, the date of filing is determined by the date on which the notice of appeal is received and filed by the clerk of the district court and not by the date of mailing. "In determining whether a notice of appeal is timely filed and establishes jurisdiction in an appellate court, this court must be bound by the filing date indicated on the notice of appeal transmitted to it by the trial court." In re M.S., 781 P.2d 1287, 1289 (Utah Ct.App. 1989).
Appellants claim that they were operating under the assumption the notice of appeal was accepted as timely and that they were not made aware of a problem with timeliness until it was too late to seek an extension from the district court. Rule 4(e) of the Utah Rules of Appellate Procedure allows only a trial court to extend the time for appeal upon a timely motion. See Utah R. App. P. 4(e) (allowing a motion to extend to be filed within thirty days after the expiration of the original appeal period). The time for filing a motion under rule 4(e) expired on December 5, 2008. We are precluded from suspending or modifying the provisions of either rule 4(a) or rule 4(e) of the Utah Rules of Appellate Procedure. See Utah R. App. P. 2. And we further note that it was unreasonable for Appellants to assume that their notice of appeal was timely filed when they apparently failed to mail it until the day it was due to be filed.
When Appellants prepared their docketing statement in late November of 2008, the untimeliness of the appeal should have been very apparent. Instead, the docketing statement incorrectly represented that the notice of appeal was filed on November 5, 2008, and it initially did not include a copy of the notice of appeal bearing the district court's filing stamp, although that was a required attachment, see Utah R. App. P. 9(d).
Because Appellants' notice of appeal was untimely, we lack jurisdiction to consider the merits of the appeal. See Serrato v. Utah Transit Auth., 2000 UT App 299, ¶ 7, 13 P.3d 616. Once a court has determined that it lacks jurisdiction, it "retains only the authority to dismiss the action." Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct.App. 1989). We dismiss the appeal for lack of jurisdiction.