Opinion
Case No. 20030827-CA.
Filed February 5, 2004. (Not For Official Publication).
Appeal from the Third District, Salt Lake Department, The Honorable Glenn K. Iwasaki.
Neal K. Ostler, Park City, Appellant Pro Se.
Mark L. Shurtleff and Nancy L. Kemp, Salt Lake City, for Appellee.
Before Judges Billings, Davis, and Thorne.
MEMORANDUM DECISION
Ostler appeals from an order granting summary judgment to Salt Lake Community College (SLCC) and from orders denying post-judgment motions. The case is before the court on its own motion for summary dismissal for lack of jurisdiction. SLCC supports summary dismissal. Ostler opposes summary dismissal and requests a hearing.
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." Utah R. App. P. 4(a). If a notice of appeal is not timely filed, this court lacks jurisdiction and must dismiss the appeal. See Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct.App. 1989).
Ostler filed his notice of appeal on October 8, 2003, which was more than thirty days after the date of entry of the order granting SLCC's motion for summary judgment. However, Ostler contends that his Motion to Alter or Amend Judgment was a timely post-judgment motion under rule 59 of the Utah Rules of Civil Procedure that tolled the time for filing an appeal.
"If a timely motion under the Utah Rules of Civil Procedure is filed in the trial court . . . under [r]ule 59 to alter or amend the judgment; or . . . under [r]ule 59 for a new trial, the time for appeal . . . shall run from the entry of the order" disposing of such motion. Utah R. App. P. 4(b). Ostler is correct that his Motion to Alter or Amend Judgment was timely filed under rule 59. See Utah R. Civ. P. 6(a); 59(b), (e). Further, "[a] motion for relief from judgment, if filed within ten days after the entry of judgment, will be treated as a post-judgment motion tolling the time for appeal." Gallardo v. Bolinder, 800 P.2d 816, 817 (Utah 1990) (per curiam). However, "[w]hen a party files a post-judgment motion pursuant to either rule 52(b) or rule 59, a notice of appeal must be filed after the order disposing of the motion is entered in order to vest jurisdiction in this court." Swenson Assocs. Architects, P.C. v. State, 889 P.2d 415, 417 (Utah 1994). "A notice of appeal filed before the disposition of any of the above motions [has] no effect." Utah R. App. P. 4(b). The district court's order disposing of Ostler's Motion to Alter or Amend Judgment was entered on October 17, 2003. Therefore, Ostler's notice of appeal filed on October 8, 2003 was premature and had no effect.
Ostler contends that the September 12, 2003 unsigned minute entry directing SLCC's counsel to prepare an order denying the Motion to Alter or Amend Judgment disposed of the motion. However, an unsigned minute entry directing counsel to prepare an order denying a rule 59 motion does not dispose of the motion for purposes of appeal. See Swenson Assocs. Architects, P.C., 889 P.2d at 417; Gallardo, 800 P.2d at 817. Further, rule 4(c) of the Utah Rules of Appellate Procedure does not apply to a premature notice of appeal from a denial of a rule 59 motion. See Swenson Assocs. Architects, P.C., 889 P.2d at 416.
Ostler did not file a notice of appeal in the district court within thirty days after the entry of the October 17, 2003 order denying his Motion to Alter or Amend Judgment. Further, although his Motion to Set Aside Judgment Under Rule 60(b)(1) did not affect the time for appeal from the order granting summary judgment, see, e.g., Utah R. Civ. P. 60(b), Sittner v. Schriever, 2000 UT 45, ¶ 21, 2 P.3d 442, Ostler did not file a timely notice of appeal from the denial of his rule 60(b)(1) motion.
Accordingly, this appeal is dismissed for lack of jurisdiction. Ostler's request for a hearing is denied.
Judith M. Billings, Presiding Judge, James Z. Davis, Judge, and William A. Thorne Jr., Judge, concur.